South Carolina’s De Facto Custodian statute is valuable; its Grandparent Visitation statute remains a menace

Posted Tuesday, February 1st, 2022 by Gregory Forman
Filed under Jurisprudence, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public

Because South Carolina’s De Facto Custodian statute and Grandparent Visitation statute both allow the family court to award visitation to non-parents, they are often viewed as similar. However experience shows that South Carolina’s De Facto Custodian statute is valuable but the most recent iteration of its Grandparent Visitation statute remains a menace. While these two statutes may appear similar, the De Facto Custodian statute merely ratifies past decisions parents have made regarding their children’s best interests while the Grandparent Visitation statute allows the family court to impose its own views of a child’s best interests on fit parents.

The distinction few note between these two statutes is that to become a De Facto Custodian, a parent must have previously chosen to allow this custodian to develop a parent-like relationship with the child. I see nothing officious with the state sustaining such a relationship unless the parent can justify the rupture. In contrast, the Grandparent Visitation statute seeks to impose a relationship between the child and a grandparent over a fit parent’s objection. That is a menace to liberty.

Both law and culture vest great authority and responsibility in parents to raise their children as they see best. A long line of United States Supreme Court cases interpreting the liberty provision of the 14th amendment of the United States Constitution shield fit parents from the state intruding upon their parental decision making. The power to grant grandparent visitation overrides, and is inimicable to, this parental authority.

My intense dislike of grandparent visitation statutes developed early in my career when I had to defend one brought by a maternal grandmother who had supported her daughter’s false claim that my client had sexually molested his daughter, resulting in years of stressful and expensive litigation. My client had exceedingly good reasons for not wanting his daughter to have a relationship with her maternal grandmother. But a family court judge felt children should know their grandparents so she awarded the grandmother supervised visitation.

One might think the fact that grandmother’s visitation needed to be supervised would be a flashing red light that this was ill-advised, but family court judges addressing disputed cases are trained to favor their view of a child’s best interests over a parent’s view. In the context of custody litigation between two parents, where neither party has a superior right, a judge’s view of best interests, which likely coincides with at least one parent’s view, is the only just method of resolving such disputes. However in custody disputes between parents and third-parties, a parent’s view of best interests is legally superior.

I had hoped that Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49, 56-57 (2000) would end this nonsense in which family court judges override fit parents’ decisions regarding grandparent visitation. South Carolina’s latest Grandparent Visitation statute requires a finding by “clear and convincing evidence” of “compelling circumstances” to “overcome the presumption that the parental decision is in the child’s best interest.” All of this quoted language is meant to restrain family court judges from imposing their own views of a child’s best interests upon fit parents.

The distinction between deciding best interests and deferring to a parent’s reasonable view of best interests is a subtle but vital part of insuring grandparent visitation statutes don’t intrude upon a parent’s constitutionally protected liberty interests. A parent might not want a child to visit a grandparent for a reason a family court judge doesn’t find compelling. Normally in family court the burden is on the parent to justify his or her decision. In grandparent visitation cases, the burden should be on the court to justify overriding a fit parent’s decision.

“I don’t want my child exposed to a particular faith and the grandparents don’t respect my wishes” or “I don’t want my child eating dairy and the grandparents feed her cheese” should be sufficient for the parent to deny grandparent visitation. Undermining parental authority should always be a valid reason to restrict a child’s contact with third parties. The family court should not be second guessing or imposing its own views on that decision. Frankly a simple “the grandparent doesn’t like me and my kids don’t need to be spending time with folks who don’t like me” should be sufficient to deny grandparents visitation. The state should not require parents to allow their children to have relationships with non-parents who do not like that parent.

Recent experience indicates this new statute is not creating the proper deference to a fit parent’s decision making. Last month I defended my first hearing under the new statute. While elements of the statute constrained the family court from awarding grandparent visitation (the grandparent had not gone 90 days without seeing his grandchild), the judge’s statement to my client at the end of the hearing was chilling. Basically the judge informed my client that if he was the trial judge and he determined my client was unreasonably withholding visitation, he would not hesitate to order it.

This statement, from a judge I consider to be a legal scholar, demonstrates what I consider to be a misunderstanding of the law. It should not matter whether a family court judge agrees with a parent’s reasons for denying a grandparent visitation. So long as a parent has a sincere reason for denying a grandparent visitation and can present some (not even a preponderance of) evidence justifying that reason, the family court should not be intervening.

I understand the rationale for grandparent visitation statutes. A child’s relationship with extended family is valuable. Such relationships typically develop through the parent who is part of that extended family. When that parent no longer has a relationship with the child (often due to that parent’s death) there is a desire to preserve these extended family relationships. Rather than allow any extended family member to seek court intervention, our legislature has vested those rights in grandparents (and, actually, siblings). I have previously blogged that this third iteration of South Carolina’s grandparent visitation statute finally set the balance right. But that balance is worthless if family court judges won’t defer to fit parents’ justifiable decision making.

Grandparent visitation statutes aren’t needed for situations in which parents and grandparents get along. These statutes are only used to allow the state to intrude on the vital interest of parents to restrict their children’s access to folks whom they deem detrimental to their children’s well being. So long as family court judges allow their own opinions about a child’s best interests to override a fit parent’s reasoning, South Carolina’s Grandparent Visitation statute remains a menace.

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