In South Carolina, grandparents’ rights are derivative of their child’s rights. This means that in typical circumstances, a grandparent may visit with a grandchild only when the grandparent’s child has visitation.
The law is clear that parents have a protected liberty interest in the care, custody, and control of their children, and that this is a fundamental right protected by the Due Process Clause in the United States Constitution. The court must give "special weight" to a fit parent's decision regarding visitation. A court considering grandparent visitation over a parent’s objection must allow a presumption that a fit parent’s decision is in the child's best interest. So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parents children. Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003).
The Family Court can grant visitation to a third party (not just limited to a grandparent) over a fit parent’s objection when faced with compelling circumstances, such as significant harm to a child. Compelling circumstances will be determined on a case-by-case basis, but the Court will consider pursuant to S.C. Code Ann. § 63-15-240 the children's best interests in deciding custody, and the judge considers several factors including: the needs and preferences of the child; the child’s relationship with siblings or other persons; the stability of residences; the mental and physical health of all involved; and past or present abuse and neglect. However, it is not enough just that a child may benefit from contact with a grandparent.
When one parent dies, the parents of the deceased may still be able to have visitation rights if the meet the criteria in S.C. Code Ann. § 63-3-530(33), which allows visitation for a grandparent when either or both parents of the child are deceased, or are divorced, or are living separate and apart in different habitats. To award visitation under this law, the court must find that:
- 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
- The grandparent maintained a relationship similar to a parent-child relationship with the minor child; and
- That awarding grandparent visitation would not interfere with the parent-child relationship; and:
- The court finds by clear and convincing evidence that the child's parents or guardians are unfit; or
- 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.
South Carolina also recognizes the doctrine of a psychological parent, which could apply to a grandparent is some circumstances. There is a four-part test which is used to evaluate whether or not a person qualifies as a psychological parent:
- The child’s biological or legal parent or parents consented to and facilitated the formation and establishment of a parent-like relationship with the child;
- The petitioner and the child lived together in the same household;
- The petitioner undertook obligations of parenthood through responsibility for the child’s care, education, and development without expectation of financial compensation;
- The petitioner has been in a parental role for a length of time sufficient f or a parental bond to be established with the child. Middleton v. Johnson 369 S.C 585, 633 S.E.2d 162 (Ct. App. 2006).
According to S.C. Code Ann. § 63-15-60, a grandparent may also qualify as a de facto custodian in some circumstances. 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:
- Has resided with the person for a period of six months or more if the child is under three years of age; or
- Has resided with the person for a period of one year or more if the child is three years of age or older.
In gathering information to assist in making a decision, a judge may use investigative agencies, psychologists and others. The Judge may also appoint a lawyer to represent the interest of a child or children.
This information was prepared to give you some general information on the law. It is not intended as legal advice about any particular problem. If you have questions about the law you should consult a lawyer. If you do not know a lawyer, you can call the South Carolina Bar Lawyer Referral Service weekdays between 9 a.m. and 5 p.m. The number is 799-7100 in Richland or Lexington Counties, and 1-800-868-2284 from other parts of the state.