In some divorces, amidst all the family pain and disruption, one or both spouses may decide to prevent grandparents from seeing their grandchildren, no matter how the children or the grandparents feel about the interrupted relationships. The American Grandparents AssociationTM (AGA), founded by grandparents.com, quoted Richard Kent, author of Solomon’s Choice: A Guide to Custody for Ex-Husbands, Spurned Partners, & Forgotten Grandparents: “The state of grandparents’ rights is terrible. … Even if they had what most people would consider a classic grandparent-grandchild relationship and, let’s say, saw their grandchild every Sunday afternoon … they are treated no differently than strangers.”
Grandparents’ visitation rights have long been a murky area of the law, rarely recognized as deserving of legal protection. Although grandparents’ rights are not considered to be constitutional, in recent years state legislatures have passed statutes that allow court-mandated visitation for grandparents. Courts in every jurisdiction must consider the best interests of the child when granting custody or visitation rights to a grandparent.
A little over two years ago, South Carolina Governor Nikki Haley signed “the grandparent visitation statute” SC House Bill 4348) that makes it easier for SC grandparents to obtain court-ordered visitation with their grandchildren. In typical circumstances in South Carolina, a grandparent’s rights are linked to the rights of the child. A grandparent may visit with a grandchild only when the grandparent’s child has visitation rights. The law does not interfere with parents’ fundamental, protected liberty interest in the care, custody, and control of their children, and courts must give special weight to a (fit) parent’s decision regarding visitation.
The new statute is an attempt to balance parents’ fundamental right, protected by the Due Process Clause in the U.S. Constitution, to raise their children as they see fit with the acknowledgement that fit grandparents have some right to a relationship with their grandchildren. Changes in the status of a child’s family do not warrant a grandparent’s being unreasonably denied contact with the child.
According to the South Carolina Bar, a court may grant visitation if one parent is deceased, or the parents are divorced or separated. The court must consider the relationship between the grandparent and the child, as well as the parent and the child. If a court finds that the child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child it can order visitation rights. (Only adoption by new parents cuts off all visitation rights of grandparents.)
Grandparent visitation rights vary from state to state, and South Carolina is still considered to be one of the more restrictive states. However, as more and more grandparents are serving as their grandchildren/s primary caregivers, under South Carolina law a grandparent may also qualify as a de facto custodian, that is, as a person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child. The child must have resided with the person for a period of six months or more if the child is under three years of age, or for a year or more if the child is three years old or older.
The seasoned family law and divorce lawyers at the McGrath Law Firm, founded by attorney Peter McGrath, will walk you through every step of the challenging divorce process to address your concerns and achieve your goals as efficiently as possible. From spousal support, child support, fault, and equitable division of property and debt to valuations, pre-nuptial agreements, and restraining orders, the experienced attorneys at McGrath Law Firm have a successful track record in all aspects of divorce law. Call us to schedule your consultation at (800) 283-1380.