New Law Makes it Easier for Grandparents to get Visitation in South Carolina

GRANDPARENT-VISITATION

The South Carolina statute regarding grandparent visitation was amended via bill <H4348>on June 9, 2014. The amended statute makes it a bit easier for grandparents to get visitation in South Carolina, as grandparents are no longer required to show that they have a relationship with their grandchild akin to a parent-child relationship prior to receiving court-ordered visitation. S.C. Code §63-3-530 (A)(33) (the grandparent statute) now provides that the Family Court has jurisdiction to order visitation for the grandparent of a minor child:
…where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats, 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 ninety 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.

For some additional insight as to the new statute’s implications for grandparent visitation in South Carolina, please visit my friend and colleague’s website to view his blog post, <”South Carolina finally does grandparent visitation rights right”>.
This statute only applies to “grandparents,” which is defined within the statute itself as a “natural or adoptive parent of a natural or adoptive parent of a minor child.” However, there are still ways for a non-grandparent third-party to get custody of a child if certain elements are proven and burdens met. For example, as described in Moore v. Moore, 200 S.C. 75, 386 S.E.2d 456 (1989), custody may be awarded to non-parents when the parents are deemed unfit or when the parents relinquish their rights.  In determining a contest between a parent and a non-parent, the family court will consider the following four (4) factors:
1)      Whether the parent is fit and able to care for the child and provide a good home;
2)      The amount of contact (as evidence by visitation, financial support or both) which the parent had while the child was in the care of a third-party;
3)      The circumstances under which temporary relinquishment occurred; and
4)      The degree of attachment between the child and the temporary custodian
Nonetheless, it is important to understand that a rebuttable presumption favors the parent over a third-party.
South Carolina also recognizes the doctrines of “Psychological Parents” and “De Facto Custodians.”
A psychological parent is defined in Middleton v. Johnson 369 S.C. 585, 633 S.E.2d 162 (Ct.App.2006) as someone who, on a continuing day-to-day basis, through interaction, companionship, interplay and mutuality, fulfills a child’s psychological and physical needs for a parent and provides for the child’s emotional and financial support.  For a third-party to show they are a psychological parent they must meet the following four (4) requirements:
1)      The biological or adoptive parent(s) consented to and fostered the formation and establishment of a parent-like relationship with the child;
2)      The petitioner and the child lived together in the same household;
3)      The petitioner 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
4)      The petitioner 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.

De Facto Custodian:
S.C. Code Ann. § 63-15-60, also allows for grandparents or other third-parties to qualify as “de facto custodians” when contesting custody of a biological parent.  In order for a third-party to show that they are a de facto custodian, they must show 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.

If you are a grandparent or a third-party with questions about your rights to visitation or custody in the State of South Carolina, I would be more than happy to speak with you about your options.

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