CONTACT THE MCMILLIAN LAW FIRM, YOUR CHARLESTON, SC AND SUMMERVILLE, SC FAMILY LAW AND DIVORCE ATTORNEY
In previous articles and posts on this website, we have discussed the legal standards applied by a South Carolina Family Court in deciding visitation issues between parents and issues of visitation between parents and grandparents. South Carolina law clearly establishes that parents and, in the right circumstances, grandparents have the right to seek court ordered visitation of children through the Family Court. However, again due to a mobile society and the demands placed upon family with social constructs and non-traditional households, I am often asked about the visitation rights of non-parents in South Carolina. Non-parents would include extended family members beyond the parents and grandparents.
WHO HAS STANDING TO SEEK A VISITATION ORDER IN SOUTH CAROLINA FAMILY COURT
In order to seek visitation rights through a Family Court order, an individual must have "standing" to bring the action. What is standing you may ask? Well it is Law School 101 but "standing" is in its simplest form is the determination of whether the person bringing the legal action has some personal legal interest that is being infringed by a defendant or opposing party. You must have standing in order to have a case, no exceptions. The Court wants to determine if you have a real "beef" or if you are so removed from the controversy that you have no rights being infringed upon.
The South Carolina Court of Appeals issued an opinion in May 2017 in the case of Baker v. Hardwick that set some very explicit standards on who has "standing" to seek visitation rights in a South Carolina Family Court. The facts of this case involve a child who was removed from his parents by DSS and placed with distant relatives while DSS conducted an investigation. Upon conclusion of the investigation, DSS decided to return the child to his father (Hardwick). Once the child was returned to his father, the distant relatives (Baker) initiated an action in Family Court for custody and, in the alternative, visitation.
The Family Court did rule that Hardwick was a fit parent and therefore entitled to custody of the child, but it also awarded visitation to Baker over the objection of the father. Hardwick filed a Motion to Reconsider but while this was pending in Family Court, he denied Baker visitation with the child and was found in contempt of court. That is how this case got to the SC Court of Appeals.
FOUR WAYS A NON-PARENT CAN HAVE STANDING TO SEEK VISITATION IN SOUTH CAROLINA
The issue in this case is simply "do non-parents have standing to seek visitation in South Carolina." In this specific case, the Court of Appeals ruled that Baker did not have standing to seek visitation in this case. In the opinion, the court laid out the four ways that a non-parent could have standing to seek a visitation order from the Family Court:
- If the non-parent is a grandparent that meets the requirements of "The Grandparent Statute" of S.C. Code Ann. Sec. 63-3-530(A)(33) (Baker was not a grandparent so not applicable in this case)
- The "Sibling Visitation Statute" of S.C. Code Ann. Sec. 63-3-530(A)(44) (Baker was not a sibling nor had custody of a sibling of child so not applicable in this case)
- The "De Facto Custodian" statute of S.C. Code Ann. Sec. 63-15-60(B) (Baker did not meet the timing requirements of the statute. This statute is discussed in detail in my earlier blog on grandparent visitation rights)
- The "Psychological Parent Doctrine" as defined by the South Carolina Supreme Court in Middleton v. Johnson (Baker did not meet this legal standard due to the understanding of the "temporary and evolving" nature of the relationship with the child).
So, in a nutshell, if your are a non-parent of a child AND you are not a grandparent or have custody of a sibling of the child, you only have standing to seek visitation if:
- You are a De Facto Custodian as defined by statute; or
- You satisfy the Court legal definition of being a "Psychological Parent"
IMPACT ON FAMILY LAW IN SOUTH CAROLINA
The novelty of this case is that this appears to be the first time that a Court with appellate oversight in South Carolina has so clearly defined the limits on standing as it relates to child visitation by non-parents.
I will always provide a disclosure that any ruling by the South Carolina Court of Appeals is subject to review by the South Carolina Supreme Court. My gut feeling is that this will remain good law after further review simply because of how clear and concise a line it draws concerning child visitation rights.
CONTACT THE MCMILLIAN LAW FIRM, YOUR EXPERIENCED FAMILY LAW ATTORNEY IN CHARLESTON, SC AND SUMMERVILLE, SC
If you have provided care and comfort for a child that you wish to continue to share a relationship with, and it is time to seek a legal solution to your visitation issues, contact me at The McMillian law Firm. Sit down with a me for a conversation so that we can evaluate your evidence, weigh the merit of your claim, and begin the process of setting things straight.