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

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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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Going the Extra Mile to Prevail on Your Child Custody Modification Action

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Go the Extra Mile

By: J. Wyatt Wimberly, Esquire

Ironically, one of the most rewarding things I’ve had the pleasure of doing in my career as a divorce attorney is to officiate a client’s wedding.  While I would never suggest that two people who are not fully committed to marriage “tie the knot,” I would certainly suggest that marriage could eliminate a potential argument against their case for custody/custody modification in situations where the would-be spouses were already seriously contemplating marriage.  An individual who is currently living with a non-spouse romantic companion and is either a) seeking an initial custody determination (where they were never married to the other parent) or b) seeking a modification to an existing custodial Order/Agreement may be left with the decision to either have their significant other move out or to marry them.   As such, I have now had the honor of marrying two clients, as South Carolina is one of three states in which a notary public can perform marriages.  This enabled these client’s to proceed with their custody actions in the most favorable light possible.

If you are subject to an existing Agreement or Order of the Family Court which speaks to custody of your child(ren), you may seek to have custody modified if the circumstances surrounding the best interests of your child warrant such a transfer.  Generally speaking, a party seeking to have a transfer in custody must meet the burden of showing that: 1) the circumstances have substantially changed; 2) the changes occurred after the initial award of custody and, ordinarily, prior to filing the request to change custody; and 3) the changes substantially affect the interests and welfare of the child or children in question. See. Moss v. Moss, 274 S.C. 120, 262 S.E.2d11 (1980.)

There aren’t many guarantees in family law if any at all.  Getting a transfer of custody is no exception.  It is the goal of the Family Court to have the best interests of the child prevail.  As such, for a parent serious about prevailing on a custody/custody modification action, it would behoove them and their attorney to examine the totality of the circumstances surrounding their custodial arrangement and anticipate any and all factors that a Family Court Judge and/or a Guardian ad Litem may consider as their case progresses.

Although there are many factors a judge will examine to determine custody, the inspiration for this article were the actions clients mentioned above, who went the extra mile to ensure that they were viewed in the most favorable light possible.   As you could imagine, both the custodial and non-custodial parents are likely to move on with their lives after Final Orders or Agreements, which includes the possibility of new romantic interests.  As such, Final Orders or Agreements which speak to custody often contain a provision restraining the parties’ from exposing the child(ren) to a non-spouse romantic partner on an overnight basis (in some cases restraining any such exposure at all).  These restraints are based, in part, on South Carolina case law which considers such exposures to be immoral in conjunction with certain South Carolina statutory law.  For example, S.C. Code Ann. § 16-15-70 describes “fornication” as the living together and carnal intercourse with each other or habitual carnal intercourse with each other without living together of a man and woman, both being unmarried.  S.C. Code Ann. § 16-15-80 goes on to make a conviction of fornication (or adultery) punishable by a mandatory find of $100 to $500, or imprisonment for six months to one year, or both.

Whether it’s going to the great lengths like the individuals above, or taking steps to mitigate other potentially negative facts, it’s important to be committed and prepared to make certain sacrifices and go-the extra mile when facing a child custody battle.

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