Court of appeals reverses grant of grandparent visitation based upon narrow interpretation of “denying visitation”

The January 4, 2019 Court of Appeals opinion in Brown v. Key represents the first published opinion addressing the 2014 revision to South Carolina’s grandparent visitation statute, S.C. Code § 63-3-530(A)(33). Four months after affirming an award of grandparent visitation under the prior, more restrictive statute, Brown reversed the family court’s award of grandparent visitation.

Section 63-5-530(A)(33) makes a finding that “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” a necessary, but not sufficient, condition to award grandparent visitation. In reversing the family court, the Court of Appeals found that paternal grandmother had not met the burden of showing that Mother was “denying visitation of the minor child to the grandparent for a period exceeding ninety days.”

Mother’s and grandmother’s relationship deteriorated after her son died. Mother began limiting grandmother’s visitation and eventually required that it be supervised. However, at no time did Mother simply stop allowing grandmother to visit. In reversing the award of grandparent visitation, the Court of Appeals noted:

[T[he inclusion of the ninety-day requirement suggests our legislature seeks to curb the granting of court-ordered visitation simply because visitation is not of the quantity the grandparent would like. Such a time restriction is in line with preserving the right of parents to make decisions regarding the custody and control of their children.

The opinion also includes the following language regarding Mother’s offers of visitation and Grandmother’s resistance to Mother’s offers:

Mother testified she was willing for Grandmother to see Child but wanted the visitation supervised because of the hostility between the parties following Father’s death and because Child was young and had not spent much time with Grandmother. The record reveals Grandmother’s continuing and clear resistance to this condition.

And

Both parties acknowledge Grandmother had only visited Child twice in the years prior to trial. However, the record reveals Grandmother was offered supervised visitation with Grandmother on multiple occasions during the year following Father’s death. Grandmother’s central point of contention is that Mother’s insistence that visitation be supervised was unreasonable. We cannot agree.

It is unclear from this opinion whether a parent’s demand that a grandparent’s visitation be supervised, if not reasonable, would be sufficient to trigger the ninety day requirement if supervised visitation was still offered a few times every ninety days. I don’t see anything in the opinion that would justify requiring Grandmother’s visitation be supervised. The child’s youth and lack of significant relationship with grandmother might justify limited time periods with grandmother (at least initially) but would not justify supervision.

If Brown’s holding is that an offer of supervised visitation will not give a grandparent the right to seek unsupervised visitation if there are valid reasons to require supervision, the reversal seems justified–but the Court of Appeals could have better described the circumstances that would justify visitation being supervised. If the holding is that any visitation offer that a grandparent is capable of exercising will deprive the family court of jurisdiction to award grandparent visitation so long as the offer is not made merely to avoid the ninety-day trigger, this seem an unduly narrow reading of § 63-3-530(A)(33). It is further a narrower reading of the statute than I believe the legislature intended and not one I am convinced the Supreme Court would accept.

When, in 2014, South Carolina again revised its grandparent visitation statute, I wrote that it had finally gotten this issue “right.” After an initial statute that allowed family court judges to substitute their own judgment over the judgment of fit parents (too extreme) to one that basically limited grandparents’ visitation rights to those cases in which they had previously had a parent-like relationship with the child (too narrow), the 2014 version seemed to strike a good balance. However, the Brown holding provides a too narrow interpretation of grandparent rights to preserve the rights of grandparents to have a relationship with their grandchildren when their own child is deceased on unable to exercise visitation.

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