What parents and grandparents need to know about grandparents’ rights

By Sarah J. M. Cox
Attorney at law

Grandparents can play important and vital roles in their grandchildren’s lives. Many people grow up extremely close to their grandparents.  On the other hand, grandparents and parents can clash on many issues, including how best to raise grandchildren.

Over the past 50 years, the issue of grandparents’ rights has slowly evolved. Today, all states have some form of grandparent visitation law. Some grandparent rights laws are fairly limited, though others are so permissive that even unrelated caregivers can petition the court for visitation.

In South Carolina, Family Courts can order parents to let grandparents see their grandchildren under certain circumstances.  The grandparent must show:

  • the grandchild’s parents are either deceased, divorced, or living apart from one another,
  • the parents of the child have been “unreasonably depriving” the grandparent visitation with the child for over 90 days
  • awarding visitation will not interfere with the parent-child relationship, and
  • the parents are unfit or there are other compelling circumstances which overcome the presumption that the parental decision is in the child’s best interests. [1]

The family law attorneys at Burnette Shutt McDaniel help parents and grandparents navigate this complex and emotional situation. We provide guidance and support for parents fighting grandparents’ visitation petitions. We also represent grandparents who wish to see their grandchildren over their children’s wishes.

Compelling circumstances in grandparent rights cases

In a recent South Carolina Supreme Court case, a mother objected to a visitation order her deceased ex-husband’s parents brought. She argued that it was unconstitutional for the Family Court to order visitation when the phrase “compelling circumstances” was undefined.

The Supreme Court upheld South Carolina’s grandparent visitation statute as constitutional, holding that the Family Court should narrowly construe the phrase in keeping with the Constitution.

Interference with the parent-child relationship and grandparent visitation

South Carolina case law on interference with the parent-child relationship is extremely limited, providing family court judges very little guidance on how to determine what constitutes interference.

In Grantham v. Weatherford, the Court of Appeals found that a grandparent who had reportedly publicly blamed the death of her grandchildren’s mother on the children’s father could be granted visitation in part because the grandparent promised to respect the father’s parenting.

It is clearly foreseeable that the parties in this case may have to return to court if the grandparent and father disagree again about the nebulous issue of whether the grandparent is respecting the father’s parenting.

There is a significant burden on parents who decide to fight a petition for grandparent visitation.  Oftentimes, the parent must open the home to a guardian ad litem who assists the court in determining the child’s best interests, pay attorneys’ fees and attend hearings and mediations in a grandparent visitation case.

In South Carolina, this can lead to particularly unfair results, pitting parents with legitimate reasons for denying visitation against grandparents who have more financial resources and time, regardless of a grandparents’ prior relationship with their grandchild.

The attorneys at Burnette Shutt McDaniel understand that grandparent visitation is a complicated, emotional issue regardless of which side you’re on. We help both parents and grandparents find solutions to the complex legalities involved.

Sarah J.M. Cox is an associate at Burnette Shutt & McDaniel whose practice includes grandparents’ rights cases. You can reach her at SCox@burnetteshutt.law or 803.904.7930.

[1] S.C. Code Ann.  63-3-530(A)(33).