South Carolina Grandparents Custody And Visitation Guidelines

South Carolina Grandparents Custody And Visitation Guidelines

In South Carolina, grandparents’ rights are derivative of their child’s rights. This means that in typical circumstances, a grandparent may visit with a grandchild only when the grandparent’s child has visitation.

The law is clear that parents have a protected liberty interest in the care, custody, and control of their children, and that this is a fundamental right protected by the Due Process Clause in the United States Constitution. The court must give “special weight” to a fit parent’s decision regarding visitation.  A court considering grandparent visitation over a parent’s objection must allow a presumption that a fit parent’s decision is in the child’s best interest. So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parents children.

The Family Court can also grant visitation to a third party over a fit parent’s objection when faced with compelling circumstances, such as significant harm to a child. Compelling circumstances will be determined on a case-by-case basis, but the Court will consider the children’s best interests in deciding custody and the judge will consider several factors including: the children’s relationship with each other and with their parents; the children’s adjustment to home, school, and community; the mental and physical health of all children and their parents; and, in certain circumstances, the wishes of the child or children. However, it is not enough just that a child may benefit from contact with a grandparent.

When one parent dies, the parents of the deceased may still be able to have visitation rights if the meet the criteria in S.C. Code Ann. § 63-3-530(33) and can show compelling circumstances.

South Carolina also recognizes the doctrine of a psychological parent which evaluates the following four part test;

  1. that the child’s biological or legal parent or parents consented to and facilitated the formation and establishment of a parent-like relationship with the child;
  2. that the petitioner and the child lived together in the same household;
  3. that the petitioner undertook obligations of parenthood through responsibility for the child’s care, education, and development without expectation of financial compensation;
  4. that the petitioner has been in a parental role for a length of time sufficient f or a parental bond to be established with the child.

In South Carolina , a grandparent may also qualify as a de facto custodian in some circumstances. A de facto custodian means, unless the context requires otherwise, a person who has been shown 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.

In gathering information to assist in making a decision, a judge may use investigative agencies, psychologists and others. The Judge may also appoint a lawyer to represent the interest of a child or children.

Sibling Visitation

One of the more recent additions to the South Carolina jurisdictional code regarding children and family court, is one which allows the family court “to order sibling visitation where the court finds it is in the best interest of the children.”

There are at least three situations in which one could seek application to obtain court ordered sibling visitation and have determined:

  • an adult sibling seeks visitation with a minor sibling;
  • a half-sibling seeks visitation with a minor half-sibling who in the custody of the parent that they do not share;
  • at least one of the siblings is in custody of a third party, such as foster care.

The importance of maintaining sibling bonds could justify the family court overriding the right of parents to maintain control over their minor children.  Further, the action for sibling visitation must not intrude on the rights of the minor child’s parents.

Note:

The foregoing information is provided as general family law guidelines in South Carolina and should not be considered as legal advice specific to your case.  After reviewing the above material, you will be presented with the opportunity to submit more details specific to your case directly to About The Children.org

Submitted by:  Linda O’Marie,  Paralegal

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