Aside from custody and visitation rights by a parent, in some circumstances, grandparents may also be entitled to these rights. The issue of grandparent visitation often arises in one of the following two circumstances. First, when a child’s parent dies and their ex-spouse then decides that the grandparents of the deceased spouse cannot see the child anymore. Second, when grandparents fight with their own child and their child will not let the grandparents see their grandchild. South Carolina has one of the most liberal grandparent visitation statutes in the United States. Even so, if you are a grandparent seeking custody and visitation, you will be facing an uphill battle so it is important to understand your burden of proof and prerequisites that need to be met in order to prevail in court.
Fighting for Custody: Proving You Are a De Facto Guardian
Before a judge can consider whether to award you custody as a grandparent over a biological or adoptive parent, you will first need to establish by “clear and convincing evidence” that you are your grandchild’s “de facto guardian.” To prove you are the child’s “de facto guardian,” you will have to prove several elements:
- You are their primary financial supporter and caretaker; and
- The child lives with you for a requisite period of time. For a child younger than three years old, a grandparent must establish the child has lived with them for at least six months. For a child older than three years old, the grandparent must show the child has lived with them for at least one year. The end of this time period is measured by the date the grandparent filed their petition for custody.
If the court determines you have established you are a de facto guardian, then the court may award custody to a grandparent if it finds, by clear and convincing evidence, the following two elements:
- The child’s parents are unfit; or
- That other compelling circumstances exist.
Some circumstances that may warrant a finding of “unfitness” may include when a grandparent can prove:
- One or both parents have been physically or emotionally abusive or neglectful of the child;
- One or both parents are addicted to drugs or alcohol;
- One or both parents repeatedly make bad decisions about child rearing; or
- One or both parents repeatedly put the child’s safety in danger.
“Compelling circumstances” will be considered on a case-by-case basis that may include similar evidence as unfitness to the same level of severity. The court’s determination of unfitness or compelling circumstances is a fact-specific inquiry. It is therefore important that prior to filing a petition for custody, grandparents start gathering relevant evidence and testimony that may help support their case. Some additional factors a court may take into consideration are the stability of the parent’s home environment, the physical and mental health of the child’s parents, and the child’s past relationship with his or her grandparents.
One thing to note is that if parents are engaging in unfit behavior, there is a chance that the South Carolina Department of Social Services (DSS) has already gotten involved with the case. If DSS has gotten involved, a grandparent will not be able to ask a court to find they are de facto custodian.
Fighting for Visitation Rights: South Carolina Law After Troxel v. Granville
The seminal case that discussed grandparent visitation on a national level was Troxel v. Granville, 530 U.S. 57 (2000). In Troxel, the U.S. Supreme Court found parents have a constitutionally protected “fundamental right” under the due process clause to make decisions regarding the care, custody, and control of their children. The court elaborated that there is a presumption that a fit parent’s decision is in the child’s best interest. The Troxel opinion stands for the proposition that for a statute to be constitutional, it must require that a moving party prove parental unfitness or compelling circumstances by clear and convincing evidence. Following the Troxel opinion, Governor Nikki Haley signed an amended grandparent visitation statute (S.C. Code § 63-3-530(A)(33)) into law in June of 2014.
The amended statute outlines several requirements grandparents must meet in seeking visitation with their grandchildren. First, to bring an action under the amended statute, a grandparent must have “standing.”
For a grandparent to have “standing” means that they have a legally recognized right to bring the action. The grandparent visitation statute provides that one of two requirements must be met for a grandparent to be able to sue under the statute:
- The child’s parents must be divorced and/or living separately in different habitats; or
- One or both of the child’s parents are deceased.
The statute goes on to provide that the burden of proof is on the grandparent bringing the petition for visitation to show the parent(s) is unreasonably denying the grandparent of their chance to enjoy visitation with the child, “including denying visitation of the minor child to the grandparent for a period exceeding ninety days.” Second, the grandparent must then prove that if a court awards them visitation, this will not interfere with the parent-child relationship. Finally, similar to seeking custody, a grandparent must prove by clear and convincing evidence that the child’s parent is either unfit or that other compelling circumstances exist to “overcome the presumption that the parental decision is in the child’s best interest.”
It should be noted that there are risks in the form of attorney’s fees if the moving party is unsuccessful. Specifically, the statute provides that a judge may order a “losing party” to pay attorney’s fees and costs to the prevailing party.
Contact Our Greenville Child Custody Legal Team Today
As a grandparent, seeking custody and visitation rights with your grandchild is likely very close to your heart. We understand the sensitivity of the issue – and the fact that it can be an uphill battle – and will work hard to strengthen your case and improve your chances of a successful outcome. To meet with our determined Greenville child custody attorneys today, call us directly or contact us using our online form.
Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.