South Carolina's grandparent visitation statute was recently amended in June 2014. The prior version required grandparents to have a relationship similar to a parent-child relationship with the minor child as a condition of awarding visitation. This was a difficult standard to meet.
But under the new statute, if the child’s parents are still living together, the grandparents will not be able to obtain visitation. The new version of the statute requires the death of a parent, or divorce or separate habitation of the parents in order for the court to determine whether grandparent visitation would be appropriate.
THE GRANDPARENT VISITATION STATUTE
§63-3-530(A)(33) – The family court has exclusive 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.
The judge presiding over this matter may award attorney's fees and costs to the prevailing party.
For purposes of this item, "grandparent" means the natural or adoptive parent of a natural or adoptive parent of a minor child.
There are no published cases that have interpreted the amended grandparent visitation statute. One case directly on point was decided this year but the decision is unpublished.
That case, Corey v. Corey, UP No. 2016-UP-50 (S.C. App. 2016) involved a mother who appealed the lower court’s decision to award grandparent visitation against her wishes. The grandparents were paternal, and the mother filed the suit initially to terminate Father’s rights. She appealed several issues, but regarding grandparent visitation the appellate issue involved the lower court’s alleged lack of findings regarding the parents’ fitness or compelling circumstances (subpart (b) of the test above).
The court first noted that the Mother was not shown by clear and convincing evidence to be unfit, and that the lower court made no finding on the fitness of mother. But, the court found the circumstances there to be “sufficiently compelling to overcome the mother’s decision on visitation.”
The compelling circumstances included: 1) the family court found it in the children's best interests to be reunited with the paternal grandparents because it would assist in the reunification process between father and the children, 2) the grandparents "have demonstrated love" for the children, and 3) the grandparents "previously had a good relationship with their grandchildren" before the divorce.
Further, the court noted that the fact that the grandparents demonstrated love and previously maintained a good relationship with the children, by itself did not create a circumstance compelling enough to overcome the mother’s decision on visitation. But, when combined with the impact visitation with the paternal grandparents would have on advancing the reunification process with the father following four years of separation and sexual abuse allegations, the circumstances became compelling enough to overcome the presumption that mother’s decision on grandparent visitation was in the children’s best interests. Fostering the relationship between children and father was sufficiently compelling to justify the grandparent visitation.
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