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.

Put Mr. Forman’s experience, knowledge, and dedication to your service for any of your South Carolina family law needs.

Retain Mr. Forman
  • S Keefer

    Good article Greg!!!

  • Lucreita D. Becude, Esq.

    I am one such grandparent. My son passed away and I am now fighting with everything I have to see my granddaughter. I finally was able to see her for 45 minutes with her psycholigist, and some unknown relative who brought her to the meeting and would not allow alone time with her, after 7 months of NO communication whatsoever. My granddaughter is being harmed by this situation. She is totally lost. She is 9 1/2 years of age of has always been a part of my life from the day she was born and even after my son divorced her mother. I continued with his visitation dates to be with her as much as possible along with my mother who also passed four days after my sons death. This was a tremendous shock to my granddaughter who looks like a deflated baloon. No life, no expression and pressured beyong belief to feel that if she does not do what her mothers wants that she will lose her mother too. I can only tell you the pain in tremendous and seeing her only affirms my feelings that she needs desparately to see her father’s side of the family, her cousins and her half sister who is 3 and whom she bonded with. Thank you for your article. If you are interested in pursing turning over Troxel v. Granville, I would love to participate.

    • Anon

      I am a parent who has been fighting grandparents for nearly 2 years now. My ex-wife passed when my daughter was 7 and since then, her parents took their anger out on me. They were never denied visitation with my daughter. I believe the anger stemmed from me moving on with my life. I have now spent around $35000 in legal bills defending myself from the constant misrepresentations. Everytime we go back, grandma gets less. Out of desperation, I moved 5 states away. Think twice before you attempt to inject yourself between a parent and child. I will always do what is best for me and my child and having a hostile party in our lives is not it.

  • Tracee

    Have not seen my grandson for 10yrs since my daughter passed away from cancer. Do not understand the reasoning why states are passing statutes that require grandparents to prove parent unfit? or harm standard, especially by clear and convincing evidence.

    If I thought the surviving parent was unfit than I would certainly pursue guardianship or custody, not just visitation. Visitation is usually just one or two days a month, quite a minimal intrusion on constitutional rights when it comes to cutting bonds with one side of a family.

    I don’t understand what is wrong with our courts and legislators. I know grandparents who have lost their children in war and are unable to visit their grandchildren. Those children will lose all memories of their parent because of a surviving parent’s constitutional right to say whom their children can have a relationship with.

  • Anonymous

    I love this blog that you wrote, I’m a mother of my 2 year old daughter, struggling to get temporary custody terminated from the paternal grandparents (after being deceived and told I had to sign over rights in order to finish up school). Upon requesting her back, perjury was committed & now attempts to make me appear unfit to both my lawyer and the guardian ad litem.

    Long story short, after brainwashing of my daughter, being held from seeing my daughter, the relationship is now bitter between the grandparents and myself. I’m wondering what deems the “grandparent maintained a relationship similar to a parent-child relationship with the minor child”, as they had her for 6 months; however, I took legal action within the first 3 months.

    What would a judge define “parent-child relationship”?

  • Nancy Ryan

    How can a grandparent have an established relationship with a grand child that is a newborn? May son, unmarried to the mother of the child, is in the Army and can not have regular visation with his daughter so I would like to have regular visitation so that she knows our side of the family as well. How can I do this in South Carolina. I live less than 5 miles from her but she is a newborn.

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