When Can the South Carolina Family Court Order Grandparent Visitation?
The South Carolina family courts can order grandparent visitation if the child’s parents do not live together or if at least one of the child’s parents are deceased. However so long as the child’s parents are fit, there must be a compelling circumstance before the court does so.
Both the United States and the South Carolina Supreme Courts have limited application of grandparent visitation statutes based on the fundamental right protected by the Due Process Clause granting parents a protected liberty interest in the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003) held that “[b]efore visitation may be awarded over a parent’s objection, one of two evidentiary hurdles must be met: the parent must be shown to be unfit by clear and convincing evidence, or there must be evidence of compelling circumstances to overcome the presumption that the parental decision is in the child’s best interest.”
Since Camburn, only one published South Carolina decision has authorized 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 objection.”
In June 2010, South Carolina amended Code Section 63-3-530(33), the grandparent visitation provision. The goal was the 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.
However, when the grandparent has “maintained a relationship similar to a parent-child relationship with the minor,” that grandparent is still entitled to seek visitation.