GRANDPARENT RIGHTS IN DIVORCE
WHEN GRANDPARENTS HAVE A CLAIM TO VISITATION RIGHTS OR CUSTODY
In divorce cases, we are often asked about grandparent rights to visitation and even child custody under South Carolina family law. The most typical situation involves one parent (who has legal and physical custody) being spiteful and not allowing the grandparents to have contact with their grandchildren. This is obviously a terrible parenting approach and can further traumatize children who are already dealing with the divorce of their parents. Nevertheless, it is more common than one might think. Another situation is when a parents dies, and the surviving spouse limits or even precludes contact with the grandchildren. Again, this is deplorable but takes place. One final scenario that occurs is when grandparents have a falling out with their own child and are “punished” by rationing out contact with their grandchildren. If you find yourself in this predicament and wish to seek visitation, or even custody in particularly bad circumstances, you should be prepared for an uphill fight under South Carolina law. The Due Process Clause of the Constitution conveys even undeserving or bad parents certain fundamental rights relating to the care, custody, and control of their children. As a result, South Carolina family courts are often reluctant to rule against a fit parent’s choice absent exigent circumstances. However, it can and has been done in the past. You just have to prove that the children are being negatively affected by lack of contact (visitation issue) or even in danger (custody matter). The good news is that South Carolina does recognize grandparent rights in divorce.
GRANDPARENT RIGHTS AS DE FACTO CUSTODIANS
If a grandparent seeks legal custody of their grandchild from a biological or adoptive parent, that grandparent will have to show that he or she (or possibly both) is a “de facto custodian” of the child. The grandparent will have to prove by “clear and convincing evidence” that they have been the primary caregiver and financial supporter and that the child has physically lived in their home for at least six months (if the child is under three years old) or one year (if the child is older than three). Any time spent in the grandparent’s home after the filing date is not included. Any grandparent seeking to pursue this option will want to wait and file their case after they meet the minimum time period required.If the family court judge rules in favor of de facto custodian, the court may then award custody or visitation to the grandparent but must also find that: (1) the parents are unfit or (2) some other compelling circumstance(s) exist. Proving that parents are unfit is legally difficult but can be done in a number of ways. Potential grounds a grandparent can show include the parents abuse or neglect the children, are addicted to drugs or alcohol, make consistently bad decisions on a regular basis, or put the children’s safety at risk. In many cases, the Department of Social Services has already become involved, and much of the necessary proof is already established. In these situations, a grandparent cannot bring a de facto custodian case. Instead, they can petition to be granted temporary physical custody until such time the parents’ ultimate status is determined.
GRANDPARENT RIGHTS TO VISITATION
Prior to June 9, 2014, even if a grandparent was not able to establish themselves as a de facto custodian, they could still seek visitation. South Carolina amended its Code of Laws in 2010 to modify the language found in § 63-3-530(33), which provided for grandparents’ visitation rights. This law was intended to satisfy the constitutional challenges of the United State Supreme Court case, Troxel v. Granville.The “grandparent visitation” law provided a family court judge the authority to order visitation for the grandparent of a minor child under certain limited circumstances:
- the grandparent had to be the natural or adoptive parent of a parent of the child;
- either or both of the parents of the minor child had to be deceased, divorced, or living separate and apart in different residences;
- the court had to find that the child’s parents or guardians were unreasonably depriving the grandparent an opportunity to see the child and that denial had to have been for at least 90 days;
- the court had to find that the grandparent’s relationship with the child was similar to a parent-child relationship; and
- the court had to find by “clear and convincing evidence” that either (1) the child’s parents or guardians were unfit, or (2) there were “compelling circumstances” to overcome the otherwise legal presumption that the parent or guardian’s denial of visitation was in the child’s best interests.
If ALL of these factors are met, then the family court could then award visitation to a grandparent. However, the family court had to decide the visitation schedule carefully so as not to interfere with the parent-child relationship. The court would also consider other relevant circumstances of the child’s life to ensure that the grandparent’s visitation did not interfere with the child’s normal activities.It was not enough to show that a child might benefit from spending time with a grandparent. Rather, the family court judge would have to consider several factors including:
- the children’s relationship with one other and with their parents;
- the children’s adjustment to home, school, and community;
- the mental and physical health of the children and their parents; and,
- in certain circumstances, the expressed wishes of the child or children.
After June 9, 2014, § 63-3-530 was amended by our legislature to make it easier for grandparents to seek a family court Order permitting visitation with their grandchildren. The family court may order visitation for the grandparents of a minor child where either or both of the child’s parents are deceased, divorced, or separated and if:(1) the child’s parents or guardians are unreasonably denying visitation for a period exceeding ninety days; and(2) granting grandparent visitation would not interfere with the parent-child relationship; and(a) the family court finds the child’s parents or guardians are unfit; or(b) the court finds there are compelling circumstances to overcome the presumption that a parental decision is in the child’s best interest.As before, the legal standard of proof is “clear and convincing.” Essentially, the major difference in this amendment to the law is that a grandparent no longer has to show that their relationship with their grandchild is “similar to a parent-child relationship.” It should also be noted that a family court judge can order payment of the parent or guardian’s attorney’s fees if the grandparent gets less than everything sought. Likewise, if the grandparent prevails, the judge may order the parent or guardian to pay the grandparent’s attorney’s fees.
PREPARING A CASE FOR GRANDPARENT RIGHTS TO CUSTODY OR VISITATION
Recognizing the uphill battle that lies ahead, it is critical for a grandparent to gather as much tangible evidence as possible. Judges will often hear conflicting testimony between squabbling parties. Many of the issues that cause rancor in the parent-child relationship spill over into a dispute to see grandchildren. As a result, any pictures of grandparents with their grandchildren are helpful. Also, any receipts, credit card and bank statements, airline itineraries, or other evidence of events attended will be demonstrative of the relationship as well. Proof of any items bought for the kids should be gathered, including clothes, food, medical, dental, and even toys. Grandparents should also preserve any emails and text messages (for internet savvy grandparents) as well as letters with the parents showing communications with and about the grandchildren. Similarly, any birthday or holiday cards to the grandparents signed by the kids will be helpful. And finally, be sure to review phone logs for evidence of consistent phone calls with the grandchildren. In short, the more evidence presented will increase your chances in court. Of course, if at all possible, the best solution is to do whatever is reasonably necessary to repair relations with your children so that everyone can benefit from a relationship. Filing an action in family court should be the absolutely last resort as this option will only serve to solidify the bad feelings. If you lose your case in court, you may very well never have another opportunity in life.
FAMILY LAW ATTORNEYS OF ROBERT J. REEVES P.C.
Attorneys Robert J. Reeves and Thomas W. Holland understand what you are going through in a divorce action. We also appreciate the special relationships between grandparents and their grandchildren. We pledge to do our best to try and effect a peaceable resolution whenever possible. This is the easiest solution even in the most difficult of circumstances. If it cannot be resolved, we stand ready to prepare your case and go to court. In the end, everyone needs to put forth the effort to do what is best for the children. They need and deserve the unconditional love of both their parents and grandparents. We will see what can be done to make that meet that overriding goal.