Grandparent Custody and Visitation: “Best Interest of the Child”

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Grandparent Custody and Visitation: “Best Interest of the Child”

Grandparents can attempt to obtain visitation or custody rights with their grandchildren using several different laws and arguments in family court.  First, grandparents may argue that they are the “de facto custodian” of the grandchild and should be permitted visitation or custody.  Second, grandparents may seek visitation under a new, June 9, 2014, family law that allows a more lenient standard for grandparents to obtain visitation.

Grandparents’ Right to Visitation or Custody – De Facto Custodian

If a grandparent can show that he or she, or both, is a “de facto custodian” of the child, then the grandparent may seek custody or visitation of the grandchild.  The grandparent must prove by clear and convincing evidence, pursuant to S.C. Code Ann. § 63-15-60, that he or she is a de facto custodian according to the following criteria:

A person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who:

(1)    has resided with the person for a period of 6 months or more if the child is under 3 years old; or

(2)    has resided with the person for a period of 1 year or more if the child is 3 years of age or older.

A de facto custodian may receive custody or visitation with a grandchild if the parents are determined to be unfit or other compelling circumstances exist.

This de facto custodian statute allows the family court to grant visitation or custody to a grandparent that has spent significant time and resources taking care of a child and raising them, including circumstances in which the parent has not been present in the grandchild’s life or has had limited involvement in the grandchild’s life.  Under this statute, a court may grant visitation or custody to a grandparent that has “raised” a grandchild even in situations where the parents are still together.  A grandparent may also be given visitation or custody if the parent was in prison or was addicted to drugs and alcohol and could not care for the child.

In some cases, the Department of Social Services, (“DSS”), may have already become involved with the parents, and in these cases, grandparents cannot seek de facto status from the family court.

Grandparent Visitation Under June 9, 2014, Law

In some cases, a grandparent may be awarded visitation if they cannot meet the de facto custodian standard set forth above.  According to a new law signed by Governor Nikki Haley on June 9, 2014, grandparents may seek visitation rights, pursuant to S.C. Code Ann. § 63-3-530, if certain criteria are met.

This new family law gives grandparents the ability to obtain court-ordered visitation with grandchildren, but it is still a rather high standard for family court lawyers to meet.

The new family law states the court can order grandparent visitation if either or both parents of the minor child is or are deceased, divorced, or living separate and apart 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 90 days; and

(2)  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.

This new law prevents courts from allowing grandparent visitation when the parents are together as a family, but it does allow grandparents more rights than the previous law. The previous statute required grandparents to have a relationship that was similar to the relationship between a parent-child to obtain visitation rights.

The new statute allows grandparents to obtain visitation when a parent is incarcerated, dead, or on active military duty, because court-ordered grandparent visitation in those circumstances may be in the best interest of the child due to the fact it may be the only method by which a child can maintain or develop a relationship with one-half of his or her family.  In other words, a grandparent may obtain visitation rights when the parent is unable to visit with the child.  However, if the parent is able to visit with the child, then the grandparents should visit with the child when their son or daughter has the child.  In most cases, the courts will be hesitant to interfere with a fit parent’s decision on what is in the best interest of the child.

Whether a grandparent is attempting to obtain visitation or custody as the de facto custodian or is attempting to obtain visitation under the new grandparents’ statute, proof of the relationship between the grandparents and grandchild is critically important.  Such evidence may include letters, birthday cards, Christmas cards, photographs, text messages, e-mails and evidence of phone calls, as well as evidence of financial support in the form of bank and credit card statements or receipts for items (clothes, doctor bills, entertainment or school supplies), purchased for the benefit of the grandchild.

If you have questions about family law, child custody, or visitation matters in Greenville, South Carolina, or in the surrounding counties of Spartanburg, Anderson, Pickens or Oconee, please give us a call.

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