South Carolina finally does grandparent visitation rights right

On June 9, 2014 Governor Nikki Haley signed into law House bill 4348 amending S.C. Code § 63-3-530 (A)(33), commonly known as the grandparent visitation statute. The new law is effective immediately.

This law makes it much easier for grandparents to obtain court-ordered visitation with their grandchildren. As modified, subsection 33 now authorizes the family court:

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.

The previous statute required grandparents to have a “a relationship similar to a parent-child relationship with the minor child” as a condition of awarding visitation. Few grandparents could meet that requirement. The new statute offers many more grandparents the right to seek court-ordered visitation. Grandparents will still not be able to seek visitation when the child’s parents are living together. However when one or both parents are deceased, or the parents are divorced or not cohabiting, grandparents can seek visitation if such visitation would not interfere with the parent-child relationship and either the parents or guardians are unfit or there are compelling circumstances to overcome the presumption that the parental decision to deny such visitation is in the child’s best interests.

Further, where the previous statute made ninety days of denied visitation a prerequisite for seeking court-ordered visitation, the new statute merely makes that a basis to seek such court intervention. The new statute addresses the constitutional concerns of the United States Supreme Court decision in  Troxel v. Granville, 530 U.S. 57, 65-66 (2000), by requiring the proof of parental unfitness or compelling circumstances to be by clear and convincing evidence.

Prior to Troxel, South Carolina’s grandparent visitation statute unduly interfered with a parents liberty interests in raising their children without unwarranted government intervention. Family courts were routinely awarding grandparents autonomous visitation merely because the judge thought the child would benefit from spending time with a grandparent. An example of this can been seen in the family court’s award of grandparent visitation in Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003).  I actually had a case prior to Troxel in which a grandparent was so disruptive that the court would not authorize unsupervised visitation but the court–over my custodial parent’s objection–still ordered supervised visitation for that grandparent.

In contrast, the 2010 version of the statute was unduly restrictive. By limiting court-ordered grandparent visitation to situations in which only grandparents who had previously had a “parent-child” like relationship, it prevented grandparents from obtaining visitation in cases where court-ordered visitation was clearly appropriate. For example, from mere whim a parent could deny visitation to a grandparent whose own child died serving our country. Unless that grandparent had previously had a “parent-child” like relationship, the law did not provide that grandparent a remedy–effectively depriving that child of a relationship with the other half of his or her family.

The new statute strikes a proper balance between parents’ rights to raise their children free from unwarranted government intrusion and the ability of grandparents to have a relationship with their grandchildren when the child’s family is no longer intact and that grandparent is being unreasonably denied contact with the child.

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

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