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When should the family court award grandparent visitation?

There’s some dispute surrounding last week’s blog regarding the wholesale revision of South Carolina’s grandparent visitation statute. Some commenters contend that grandparents should never be awarded autonomous visitation over a parent’s objection. Others believe that court-ordered visitation should be available to grandparents even when the parents are part of an intact household. As I indicated in that blog, I believe the law strikes a proper balance. This blog is my attempt to explain why.

Grandparent visitation statutes were an intellectual interest of mine from early in my career. In my first case defending a grandparent visitation request, I represented a father who had previously been falsely accused of sexual molesting his daughter by the mother and maternal grandmother. During that case, the grandmother had tried to surreptitiously remove the child from the country and also tried to undermine his relationship with his daughter. That case was protracted and expensive and ended with the mother having only supervised visitation and a fugitive from the state. It also left my client deeply in debt and with a justifiable fear of the grandmother having any relationship with his child

Yet when the grandmother filed a new action for visitation, the family court had no problem overriding my client’s wishes and awarding grandmother supervised visitation. This was done at a temporary hearing, solely on affidavits, and with my client having no right to question the maternal grandmother. Further, there was no guardian to represent the child’s best interests. The family court was not required to justify its decision. The judge simply felt that a child should have time with a grandparent.

Both my client and I found the ruling officious, absurd and scary. After years of chaos in his divorce litigation, my client endured new chaos until the court realized grandmother’s behavior hadn’t improved and terminated her visitation. This case led me to research the issue of when the family courts should be able to override a fit parent’s decision making and led to my first lecture before the family court bench. In the years since, I have not stopped thinking about the issue of when and why the family court should award grandparents visitation.

Most parents want their own parents to have a relationship with their children, and support the grandparent-grandchild relationship, so grandparents typically don’t need court intervention to have a relationship with their grandchildren. When these parents don’t want their own parents to have a relationship with their children, the court should be extremely cautious before overriding that decision.

I believe the new statute correctly prevents grandparents from seeking court intervention when the child’s parents are part of an intact family unit. Grandparent visitation should best be thought of as an ancillary right of the grandparent’s child [the child’s parent] and should only be awarded when that parent is unable to exercise custody or visitation with the child. Thus, if a mother does not want her own mother to see the child, I believe the court should give that opinion tremendous weight. However, if a mother doesn’t want the paternal grandmother to see the child, the mother’s opinion should be given less weight.

Further, grandparent visitation should only be awarded when the grandparent’s own child is unable to exercise visitation. When a parent is incarcerated, dead, or on active military duty, court-ordered grandparent visitation may be the only method by which a child can maintain or develop a relationship with one-half of his or her family. However, when that parent is available to spend time with the child, grandparents should see the child when their own child has time with the child.

The more people who have the right to claim a child’s time, the greater the opportunity for conflict and tension regarding the child. In fact, the conflict and tension grow geometrically–rather than arithmetically–as the number of folks laying claim to the child increase. If dad has court-ordered visitation, the court should be very reluctant to award paternal grandparents additional visitation. If there is a concern over father’s ability to exercise his court-ordered visitation [because of geographic distance from the child, military duty or incarceration], the courts should simply give father the right to delegate his visitation time to relatives rather than awarding his relatives autonomous visitation.

Some of the controversy over the grandparent visitation statute may be due to the lack of general awareness that the family court can already award custody or visitation to persons who meets the criteria of a “de facto custodian” as set forth in S.C. Code § 63-15-60. This code defines a “de facto custodian” as:

a person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who:

(1) has resided with the person for a period of six months or more if the child is under three years of age; or (2) has resided with the person for a period of one year or more if the child is three years of age or older.

Such de facto custodians can be awarded custody or visitation if the family court “finds by clear and convincing evidence that the child’s natural parents are unfit or that other compelling circumstances exist.”

This “de facto custodian” statute allows the family court to grant custody or visitation to persons–including grandparents–who have spent significant time raising the child at issue. This code section could often be applied by relatives who have raised a child when the parents were absent. Thus a grandmother who raised her grandchild while her daughter was incarcerated, serving in the military, or otherwise too preoccupied to raise her own child, can seek court-ordered visitation, or even custody, regardless of whether the mother is now living with or married to the child’s father.

Grandparent visitation should be not invade intact families and should generally not allow a grandparent’s wishes to trump his or her own child’s wishes. When a parent is unable to exercise visitation, application of the new grandparent statute is appropriate; when a parent does not want his or her own parent exercising visitation it is not. For those grandparents who have such a substantial relationship with their grandchildren that they meet the criteria of “de facto custodian,” they have an additional–perhaps stronger–remedy to maintain a relationship with their grandchild.

Given that remedy, the new statute strikes a proper balance between the rights of parents to raise their children without undue government interference and the right of grandparents to obtain court intervention to develop or maintain a relationship with their grandchild. It should also prevent circumstances in which a chaos-creating grandparent gets to override a fit parent’s decision making and in which the family court finds a grandparent too unsafe to exercise unsupervised visitation but still awards autonomous grandparent visitation.

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