Grandparent Visitation in South Carolina
Grandparent visitation is an important issue in South Carolina - and beyond. But grandparent rights are limited in South Carolina. There is a 2014 statute that clarified our grandparent visitation statute.
SC Code §63-3-530(A)(33) provides the following:
to order visitation for the grandparent of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats, if the court finds that:
(1) the child's parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding ninety days; and
(2) awarding grandparent visitation would not interfere with the parent-child relationship; and:
(a) the court finds by clear and convincing evidence that the child's parents or guardians are unfit; or
(b) the court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child's best interest.
The judge presiding over this matter may award attorney's fees and costs to the prevailing party.
For purposes of this item, "grandparent" means the natural or adoptive parent of a natural or adoptive parent of a minor child.
Since the enactment of this statute there has been no case law for us to interpret these new terms with untile recently.
In Janaruy 2019, the South Carolina Court of Appeals issued its Opinion in the case of Brown v. Key. In this case, the father and mother dated when they were teenagers and from their relationship and child was born. Shortly after the child's first birthday, the father was killed in a car accident. The father's mother (grandmother) and mother's relationship was strained and father's death did nothing to improve that. There were issues related to the a possible wrongful death settlement, among other things, that created a strained relationship. While the father was still living the child had some visits with grandmother.
As the relationship between mother and grandmother deteriorated, grandmother would ask to see the child and mother would offer her some visits but insisted the visits must be supervised because of the lack of relationship with the child. Grandmother rebuffed those responses and refused visits offered because she felt (maybe pridefully) that she didn't need to be supervised. Ultimately, grandmother began to threaten legal action which pushed mother away more.
Ultimately grandmother did file an action in the Family Court seeking visitation with the grandchild. At the trial level she won. The Family Court determined that mother "unreasonably denied visitation with Grandmother for a period exceeding ninety days and 'there are compelling reasons for allowing grandparental visitation; to wit, this is the only child of grandmother's deceased child and the child will likely not know her or her father or the child's paternal family unless visitation is ordered.'" Grandmother was awarded visitation every fourth weekend of each month.
Mother appealed this alleging the Family Court erred in finding grandmother met all of the required elements for grandparent visitation as set forth above.
As stated before, grandparent visitation rights are pretty limited. The U.S. Supreme Court stated in Troxel v. Granville, 530 U.S. 57, 66 (2000) that "[W\] have recognized the fundamental right of parents to make decisions concerning the care, custody and control of their children." This includes who the children see and spend time with - even grandparents.
So, back to the interpretation of the statute at hand. In this case, grandmother had not been denied visitation by the mother. Mother had offered specific, supervised visits for grandmother and grandmother denied them because she didn't think she needed to succumb to the requests of mother. The Court of Appeals opinion states, "The record reveals Grandmother's continuing and clear resistance to this condition."
In this situation the Court of Appeals held that mother did not unreasonably withhold the visitation, but that grandmother chose not to visit because she didn't like the terms and since the visitation was not unreasonably deprived, the Family Court did not have authority to grant the visits.
The Court goes on to state that these cases should be determined on a case-by-case basis because they are highly fact specific.
Since these cases are so highly fact specific, if you have a grandparent visitation issue, I would suggest meeting with a lawyer to discuss your options.