Do Grandparents Have Visitation Rights in South Carolina?

Grandparents and parents aren't equal under the law—and they shouldn't be. Grandparent visitation rights are always secondary to a parent's rights. But in certain cases, a court can order grandparent visits, even if the child's parent objects.

A judge will weigh several factors when determining visitation, including the child's emotional and physical needs. Grandparents who want more time with a grandchild, should understand their legal rights and the issues that affect a judge's decision. This article provides an overview of grandparent visitation rights in South Carolina. If you have questions after reading this article, contact a local family law attorney for advice.

Troxel's Impact on Grandparent Visitation

Like divorce and child custody, grandparent rights are matters decided by state law. Although there isn't a federal law governing grandparent visitation rights, the Troxel v. Granville case comes close. In 2000, the U.S. Supreme Court affirmed that a judge must consider a parent's reasons for preventing grandparent visits and that grandparent visitation shouldn't be awarded automatically. Visitation isn't in every grandchild's best interests. A court must assess the child's needs and the parents' wishes before mandating that a child spend time with a grandparent. In situations where grandparent visitation is appropriate, it still must be tailored to fit the needs and schedules of the children and their parents.

Grandparent Visitation in South Carolina

South Carolina laws recognize the important role grandparents can play in a grandchild's life. Grandparent visitation is allowed in cases where a child would benefit from it. A child's best interests are central to any visitation order, as required by the Troxel case. Specifically, a grandparent may be entitled to visitation where either of the child's parents are deceased, divorced, or are living separate and apart, and:

• the child's parents are unreasonably preventing the grandparents from visiting with their child
• grandparent visitation won't interfere with the parent-child relationship, and
• the child's parents are unfit, or
• there are compelling circumstances that overcome the parental decision to prevent grandparent visitation.

Even when grandparent visitation serves a child's best interests, it can't substantially interfere with the parent-child relationship. For example, in one South Carolina case, the maternal grandparents were denied visitation. The lower court originally found that grandparent visitation was in the children's best interests, because it would be a stabilizing factor, in light of the mother's instability. But on appeal, the higher court determined that the mother was a fit parent, and grandparent visits took a substantial amount of time away from her. As a result, the higher court overturned the decision, because no compelling circumstances existed that would overcome the mother's decision to prevent visitation.

Can Grandparents Get Custody of a Grandchild?

Ideally, children will be raised and reared by their parents. However, in situations involving abuse or neglect, a court may need to intervene. A grandparent with a close bond or who has served as the child's primary caretaker can petition a court for custody of a grandchild.

The circumstances when a grandparent can obtain custody are usually limited to those where a parent can't—or isn't willing to—meet the child's most basic needs. Specifically, a grandparent seeking custody must prove that:

• the parent has permanently abandoned the child
• the parent has persistently neglected the child
• the parent forfeited parental rights to someone other than the child's other parent, or
• the parent refuses to take on normal parental responsibilities.

In one South Carolina case, the court made it clear that a strong bond between grandparents and their grandchildren isn't enough to justify court-ordered visitation. The court awarded the mother, not the grandparents, custody of a 6-year-old boy. The mother was a fit and proper parent and deserved custody, even though the child had lived with his grandparents since he was 9-months-old.

In another case, the court reaffirmed a stepparent's right to custody over a grandparent, in the absence of abuse, neglect or abandonment. Shortly after the mother committed suicide, the maternal grandmother filed for custody of the mother's oldest child and visitation with the younger child. The older child's biological father willingly relinquished custody. However, the court denied the grandmother's request because the older child's stepfather (and biological father of the younger child) had acted as the older child's father and was a fit and proper parent. Ultimately the court granted the grandmother's visitation request, but refused to give her custody of the children because it wasn't in their best interests.

Can a Biological Grandparent Obtain Visitation with an Adopted Child?

Placing a child for adoption legally severs ties between a child and the child's biological family. This termination of rights extends to both parents and grandparents. Generally, a grandparent has no right to visitation with a grandchild who's been adopted.

One exception is in the case of stepparent adoption or where the grandparent's son or daughter didn't consent to the adoption. For example, in one South Carolina case, the grandparents were entitled to visitation because their son (the child's father) died and hadn't consented to the adoption. The child's mother remarried and the mother's new husband adopted the child. But the court granted grandparent visitation because a grandparent's ties to a grandchild aren't severed by death.

Changes in parents' relationships often cause a parent to cut off a grandparent's visitation rights. Yet, it's usually in those tumultuous times that a child needs the stability of a grandparent the most. There are laws protecting grandparents and providing hope for those who want to maintain their relationship with a grandchild. If you have additional questions about obtaining court-ordered grandparent visitation in South Carolina, contact a local family law attorney for advice.