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The unintended and ironic consequences of South Carolina’s new grandparent visitation statute

On June 9, 2014, this statute was changed, making it easier for grandparents to pursue court ordered visitation.

I was never a big proponent of the grandparent visitation statutes that proliferated throughout the United States in the 1980’s and 90’s.  Such statutes typically allowed family courts to award autonomous visitation to grandparents over the parents’ objection, based merely upon the court’s own view of “best interests of the child.”

I had one case in which the family court awarded a grandmother supervised visitation over the father’s objection.  That grandparent’s behavior had been so egregious that the visitation needed to be supervised, but the family court still felt it was important that the child get to know her grandmother.  Basically, these early grandparent visitation statutes were a massive intrusion on the “liberty” protected by the United States Constitution’s Due Process Clause, which includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” See e.g., Myers v. Nebraska, 262 U. S. 390, 399, 401 (1923).  My first lecture before the family court bench was on this issue, Constitutional Limitations On Family Court Authority To Override Parental Decision Making.  Subsequent to that December 1999 lecture, the United States and South Carolina Supreme Courts placed limitations on these grandparent visitation statutes. Troxel v. Granville, 530 U.S. 57, 65-66 (2000); Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003).

On one occasion since Troxel the South Carolina appellate courts have approved an order of grandparent visitation.  In Marquez v. Caudill, 376 S.C. 229, 249, 656 S.E.2d 737, 747 (2008), the South Carolina Supreme Court affirmed an award of visitation to a maternal grandmother whose daughter was deceased ruling that “a biological parents death and an attempt to maintain ties with that deceased parents family may be compelling circumstances justifying ordering visitation over a fit parents [sic] objection.”

Despite my general dislike of autonomous grandparent visitation, I have no issue with the Marquez opinion; in fact, I applaud it.  Normally a child gets to know his or her extended family though the parent on that side of the family.  Generally, if a parent has a reason to prevent his or her child from getting to know that parent’s extended family, or to limit that child’s contact with extended family, society needs to respect that parent’s wishes.  However when that parent is dead, there is no one to advocate that child’s relationship with extended family, and it may be appropriate in that circumstance for the courts to intervene.

Prior to July 2010, the grandparent visitation statute, Code Section 63-3-530(33),  allowed the family court:

to order periods of visitation for the grandparents 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 regardless of the existence of a court order or agreement, and upon a written finding that the visitation rights would be in the best interests of the child and would not interfere with the parent/child relationship. In determining whether to order visitation for the grandparents, the court shall consider the nature of the relationship between the child and his grandparents prior to the filing of the petition or complaint.

In June 2010, South Carolina amended Code Section 63-3-530(33).  The goal was to give the courts greater ability to award grandparents visitation while meeting the constitutional requirements of Troxel and Camburn.  The revised subsection reads as follows:

[The family court] has exclusive jurisdiction 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. the grandparent maintained a relationship similar to a parent-child relationship with the minor child; and

3. that 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 any parent to a minor child.

Note that the requirements of subsections 1, 2 and 3 are conjunctive: all three conditions must be met before grandparent visitation may be ordered.  Subsection 2 is going to create a substantial limitation on the court’s ability to award grandparent visitation because, as the statute now reads, such visitation can only be awarded if “the grandparent maintained a relationship similar to a parent-child relationship with the minor child.”  The grandmother in Marquez would not appear to meet this requirement and, therefore, she could probably not be awarded visitation under this new statutory scheme.  It is highly unlikely our legislature intended this when it amended 63-3-530(33).

Situations in which “the grandparent maintained a relationship similar to a parent-child relationship with the minor child” cry out for autonomous grandparent visitation; if parents delegate substantial responsibility for care of their child to their parents, they should not be heard to complain if the courts later intervene to protect that child-grandparent relationship.  Such parents should be required to justify their decision to cut off all contact between the child and the grandparent.  However, as the Marquez case demonstrates, this is not the only reason that autonomous grandparent visitation can be justified.

The penultimate, May 27, 2010, version of the bill which amended 63-3-530(33) did not contain the requirement that “the grandparent maintained a relationship similar to a parent-child relationship with the minor child” before the family court could award grandparent visitation.   That language was only added in the final, June 3, 2010, draft of the bill.  Nothing indicates why this language was modified to place this condition before awarding grandparent visitation.  Ironically, a code revision that intended to strengthen the family court’s ability to protect grandparent-grandchild relationships has greatly weakened that ability.  I pity the poor grandparent whose own child is deceased and who now has no ability to obtain court-ordered visitation with that child’s child.

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