As family law attorneys in Charleston, we are often asked about whether our laws gives a grandparent rights in South Carolina. In this article, we explain a grandparent’s rights to visitation or custody in South Carolina. Also, we explain an important legal concept known as the psychological-parent doctrine. Lastly, we give pointers on how a grandparent can assert their rights in South Carolina.
What Are Grandparent Rights in South Carolina?
There are two parts to grandparent rights in South Carolina: (1) a grandparent’s right to visitation and (2) a grandparent’s right to custody.
Grandparent Rights in South Carolina – Visitation
The first part of grandparent rights in South Carolina is visitation. South Carolina Code § 63-3-530 allows for grandparents to seek a family court order permitting visitation with their grandchildren when either or both of the child’s parents are deceased, divorced, or separated under these circumstances:
- First, the grandparent must be the natural or adoptive parent of a parent of the child.
- Second, either or both of the parents of the minor child must be deceased, divorced, or living separate and apart in different habitats.
- Third, the court must find that the child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to see the child such as denying visitation for 90 days or more.
- Fourth, the court must find to a higher standard of evidence (called “clear and convincing evidence”) that either (1) the child’s parents or guardians are unfit or (2) there are “compelling circumstances” to overcome the legal presumption that the parent or guardian’s decision to deny visitation to the grandparent is in the child’s best interests.
If all of the factors above are met, then the family court may award visitation to the grandparent. The court must decide on the visitation schedule carefully as it may not interfere with the parent-child relationship. The court will also likely look at other things relevant to the child’s life to ensure that the grandparent’s visitation does not interfere with the child’s normal activities.
Clear and Convincing Evidence – Clear and convincing evidence is a higher standard of proof in court. Evidence is clear and convincing when it is highly and substantially more likely to be true than untrue. The reason why the standard of proofing is high in a grandparent rights claim in South Carolina is because our laws recognize the superior rights of natural parents.
Compelling Circumstances – Compelling circumstances are determined on a case-by-case basis, but the family court will consider the children’s best interests in deciding custody. It is not enough to show that a child may benefit from contact with a grandparent. Instead, the family judge will consider several factors including:
- The children’s relationship with each other and with their parents;
- The children’s adjustment to home, school, and community;
- The mental and physical health of all children and their parents; and,
- In certain circumstances, the wishes of the child or children.
Attorney’s Fees and Costs – A grandparent seeking court-ordered visitation in South Carolina should also be aware that the judge will have the ability to order the grandparent to pay the parent or guardian’s attorney’s fees if the grandparent gets less than everything the grandparent asked for. Likewise, if the grandparent prevails, the judge could order the parent or guardian to pay the grandparent’s attorney’s fees, but if a grandparent is reading this article, the grandparent is likely concerned with much more than just money.
Grandparent Rights in South Carolina – Custody
The second part of grandparent rights in South Carolina is custody. If a grandparent seeks custody of their grandchild from a biological or adoptive parent, the grandparent will first have to show that he or she (or possibly both) is a “de facto custodian” of the child under South Carolina Code § 63-3-60 which provides:
“[A] ‘de facto custodian’ means, unless the context requires otherwise, 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 six months or more if the child is under three years of age; or
(2) has resided with the person for a period of one year or more if the child is three years of age or older.
Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child must not be included in determining whether the child has resided with the person for the required minimum period.
If a grandparent in South Carolina can prove they are a de facto custodian, then the family court may award the grandparent custody if there is clear and convincing evidence of either of the following:
- The natural parent is unfit and is not able to care for the child and provide a good home; or
- Other compelling circumstances exist.
Examples of evidence of unfitness include abandonment, neglect, physical abuse, and emotional abuse. As for other compelling circumstances, those circumstances are decided on a case-by-case basis.
Like grandparent visitation claims, in deciding whether a grandparent should have custody, the child’s best interest is the primary and controlling consideration for the family court.
U.S. Constitutional Limitations on Grandparent Rights in South Carolina
While grandparents rights in South Carolina are laid out in South Carolina Code § 63-3-530, the United States Supreme Court has set some limitations on what a family court judge may decide. In Troxel v. Granville, an unmarried couple had two children who visited frequently with the father’s parents (paternal grandparents). After the father died, the mother decided to limit the paternal grandparent’s visitation to once per month and some time during the holidays. The grandparents filed a lawsuit in family court, and the judge decided that it was in the children’s best interest to spend more time with the grandparents. Howevver, the U.S. Supreme Court disagreed.
In Troxel, the U.S. Supreme Court analyzed the case under the 14th Amendment’s Due Process Clause in the U.S. Constitution. The Supreme Court noted that the 14th Amendment’s Due Process Clause “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Applying the 14th Amendment, the Supreme Court ruled that “the visitation order in this case was an unconstitutional infringement on [the mother’s] fundamental right to make decisions concerning the care, custody, and control of her two daughters.”
What is the Psychological-Parent Doctrine in South Carolina?
In cases involving grandparent rights in South Carolina, our courts have recognized the Psychological-Parent Doctrine, which allows for a third party, including a grandparent, to request custody or visitation with a child. In deciding whether there is a psychological-parent relationship between a grandparent and a child, the family court analyzes the folloing four factors:
- Whether the biological or adoptive parent(s) consented to, and fostered, the third-party’s formation and establishment of a parent-like relationship with the child;
- Whether the third-party and the child lived together in the same household;
- Whether the third-party assumed obligations of parenthood by taking significant responsibility for the child’s care, education, and development, including contributing towards the child’s support, without expectation of financial compensation; and
- Whether the third party has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
How Do Grandparents Make a Claim for Custody or Visitation in South Carolina?
When it comes to grandparent rights in South Carolina, judges hear all sorts of stories regarding the kids’ relationships with their grandparents. Often, the stories don’t match, and the court will try to figure out the truth.
A fundamental way of doing this is for a grandparent to build up their bank of tangible evidence. Pictures of grandparents with the children are excellent. Receipts, credit card and bank statements, airline itineraries, or other evidence of events attended by both the grandparent and child may be useful as well. Receipts or credit cards or bank statements of items bought for the kids should be gathered. These items can be useful, such as clothes, or strictly fun, such as toys.
Grandparents should look for emails, letters, or text messages with the parents to show evidence of them communicating about the kids. They should look for birthday or holiday cards to the grandparents and signed by the kids. They should look for emails, letters, and text messages with the kids. They should check the phone logs for evidence of repeated phone calls with the kids.
Charleston Lawyers for Grandparent Rights in South Carolina
As you can tell from reading this article, the issue of grandparent rights in South Carolina is very complicated. If a grandparent in South Carolina seeks custody of or visitation with a grandchild, the burden of proving the case is high, the factors the court must consider are many, and there are 14th Amendment issues involved. In other words, if you are a grandparent seeking custody or visititation, then don’t go it alone – hire a family law attorney. If you are in Charleston or the surrounding areas, then contact our family court lawyers today.