Applying prior, more restrictive, version of grandparent visitation statute, Court of Appeals still affirms award of grandparent visitation

Posted Wednesday, September 5th, 2018 by Gregory Forman
Filed under Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific, Visitation

The September 5, 2018 Court of Appeals opinion in Grantham v. Weatherford, 425 S.C. 111, 819 S.E.2d 765 (Ct.  App. 2018), addresses the application of South Carolina’s Grandparent Visitation Statute, S.C. Code § 63-3-530(A)(33). However, while granting maternal grandparents (Grandparents) visitation with their grandchildren, it does so under the 2010 amendment to that subsection, which has since been superseded by the 2014 version.

Grantham involves the most common reason the appellate courts have affirmed the award of grandparent visitation–their own child has died and the other parent is withholding contact. In Grantham, the children’s parents were initially married but Mother, after the birth of her second child, began suffering from severe depression and substance abuse. Father relied on his own family along with Grandparents to assist him with child care. Eventually he and Mother separated and entered a custody agreement giving him custody and Mother visitation to be supervised by Grandparents. Shortly thereafter Mother committed suicide.

At her funeral, the minister—whom Grandparents selected to deliver the eulogy—made harsh statements referencing Mother’s “abusive marriage” and implying Father bore responsibility for Mother’s death. Grandparents apologized to Father his new girlfriend after the funeral and denied giving the minister the information behind the statements. However, the parties’ relationship quickly began to deteriorate. Grandparents had little contact with their grandchildren and eventually filed this action.

At trial, the family court awarded Grandparents one long weekend a month and a week at summer. Father appealed.

The Court of Appeals affirmed the award of visitation. While Father argued on appeal that the 2014 version of the statute should apply (which would actually have made it easier to award Grandparents visitation), the Court of Appeals held that the 2010 version should apply as that was the statute in effect at the time of filing. That version of the statute granted the family court the exclusive jurisdiction

to order visitation for the grandparent of a minor child whe[n] 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:

Father did not dispute that Grandparents had been denied visitation for ninety days and Grandparents did not dispute that Father was fit.

The Court of Appeal found that Grandparents had a significant and extensive relationship with the children. “The record indicates Grandparents maintained a parent-child relationship with the children: taking the children to and from school, cooking for the children, bathing the children, buying clothes for the children, and taking the children to doctor’s appointments.”

It further found warding grandparent visitation “will not interfere with Father’s relationship with the children. Grandmother’s testimony demonstrates that the children developed a positive relationship with Grandparents prior to Mother’s death and spent time with Mother at Grandparents’ house.”

Finally it found Mother’s death was “ compelling circumstances [to] justify granting visitation over Father’s objection.” It cited Marquez v. Caudill, 376 S.C. 229, 249, 656 S.E.2d 737, 747 (2008), which found that “a biological parent[’]s death and an attempt to maintain ties with the deceased parent[’]s family may be compelling circumstances justifying ordering visitation over a fit parent[’]s objection” Given that the grandmother in Marquez had less of a relationship with her grandchild than the Grandparents did here, the Court of Appeals affirmed the award of visitation.

Since Grantham relies upon an older, narrower, version of the Grandparent Visitation Statute, its future application is likely to be limited. However Grantham demonstrates that a parent’s death remains a compelling reason to award grandparent visitation.

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