De Facto Custodian rights are more valuable than Grandparent Rights

Posted Wednesday, November 24th, 2021 by Gregory Forman
Filed under Jurisprudence, Of Interest to Family Court Litigants, South Carolina Specific, Visitation

Given the phone calls I receive from prospective clients, it appears that many more folks are aware of the concept of grandparent rights than they are of de facto custodian rights. A sizeable portion of grandparents who call me seeking time with their grandchildren would also qualify as de facto custodians. For both legal and jurisprudential reasons, de facto custodian rights are more valuable than grandparent rights.

I’ve never been a big fan of grandparent rights, lecturing over 20 years ago on my concerns that legislatures were allowing family courts to override fit parents’ decision making. Both law and culture entrust parents to raise their own children. Most parents are happy to allow their children to spend time with grandparents. These parents and grandparents never need court involvement; in fact, the grandparent visitation statute is written so that grandparents in this situation could not obtain a visitation order.

Giving grandparents enforceable visitation rights undermines parental autonomy. A culture which expects parents to raise their children with limited government assistance should be extremely cautious about undermining parental authority. Most parents who aren’t willing to allow their children to develop a relationship with grandparents have a perfectly valid reason for doing so. When a family court judge orders a parent to allow grandparents to visit, the state intrudes on a parent’s right to raise one’s children and that parent’s obligation to keep one’s children safe. A family court judge might disbelieve or minimize a parent’s justification for denying a grandparent visitation, but that disbelief doesn’t render that concern invalid.

Further, an order requiring grandparent visitation can put a parent in an untenable position in which safety concerns regarding one’s children conflict with the duty to obey court orders and the risk of contempt sanctions. That same concern exists with visitation orders involving parents but, in this culture, parents expect to have to raise children with their co-parent. There is no similar expectation as it regards grandparents. That parents may sometimes have to decide whether to allow the other parent visitation that may be unsafe or to violate a court order is an unavoidable consequence of a culture in which both parents have parental rights. However, the law should be extremely cautious about putting parents in this position otherwise.

Probably the only time a family court judge should order grandparent visitation is when it is clear the parent is denying the grandparent-grandchild relationship out of spite. Even then, the court should intrude as lightly as possible on parental autonomy. This is the lesson I take from Bazen v. Bazen, 428 S.C. 511, 837 S.E.2d 23 (2019). While the Supreme Court approved grandparent visitation in the face of a mother’s “intentional, deceptive, and contemptuous behavior”, it limited that visitation to non-overnights. In imposing this limitation, the Supreme Court noted that the grandparents had never had a “parent-like relationship” with the grandchildren.

It is this “parent-like relationship” that the de facto custodian statute intends to preserve. To be a de facto custodian, one must have been “the primary caregiver for and financial supporter of a child” for six months if the child is less than three years old and a year if the child is three or older. Since one cannot establish de facto custodianship when a child is in the custody of South Carolina’s Department of Social Services, folks typically establish a de facto custodian relationship when a parent voluntarily allows a third-party to raise his or her children.

One cannot leave children in the care of third-parties for long periods of time without the expectation that the children will bond with those third parties. It can be an act of cruelty to terminate that close bond merely because a parent has now decided to resume focus on his or her children. That is the rationale of the de facto custodian statute and it allows the family court to award visitation to those who have established this relationship.

The grandparent visitation statue allows the family court to invade parental authority to require visitation with someone who a parent has never relied upon for parenting that child. The de facto custodian statute only allows state interference with a parent-child relationship upon a showing that the third-party has devoted significant caretaking responsibilities for that child. The prudential concerns of state interference in the parent-child relationship are much lower under the de facto custodian statute than they are under the grandparent visitation statute.

For good reasons, I see grandparent visitation being ordered less frequently than it was in the past–and, after Bazen, I expect grandparents to get very limited visitation. However, I see attorneys obtaining substantial visitation for their clients for whom they establish the status of de facto custodian.

Grandparents who qualify as de facto custodians are advised to focus on obtaining their rights as a de facto custodian.

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