Grandparent visitation is a growing issue in today’s society. Sometimes a parent refuses to allow a grandparent to visit a grandchild. Other times, grandparents fear their grandchild is not in a safe living environment. They might want to intervene and seek custody of the grandchildren.
Many grandparents want to know what legal rights they have to their grandchildren. Do grandparents have a legal right to visitation? Can grandparents gain custody of their grandchildren?
The short answer is YES! Grandparents can have court-ordered visitation. They can also take custody of grandchildren to put them in a better living environment. But certain criteria have to be met to activate or trigger those important legal rights.
The Maron Law Group helps grandparents get visitation all across the state of South Carolina. This article tells you how you can seek grandparent visitation.
When Can I Seek Grandparent Visitation in South Carolina?
First, we need to look at the reasoning behind the law. The law says that, generally, the judge will defer to the parents’ decision. The thinking here is that the parents know best what is in the child’s best interest. In most situations, judges do not want to interrupt a parent-child relationship. Judges may be afraid that forcing grandparent visitation would undermine a parent’s authority. Parents may have good reason for excluding grandparents from the child’s life.
The Constitution protects the rights of parents to control their children’s upbringing. But it does not give that same right to grandparents. As a result, grandparents start off with essentially no rights. The United States Supreme Court decided this issue in Troxel v. Granville in 2000.
Generally, judges view parents as having the final say on parenting decisions. Grandparents seeking visitation or custody need to overcome that hurdle. Grandparents need to show there is a compelling reason to override the parents. That’s why certain conditions must be present to trigger those rights.
The following conditions give the grandparent standing to ask the court for visitation.
1. Parent(s) must be deceased, divorced, or separated.
First, one or both parents must be deceased, or divorced, or separated and not living together. If both parents are alive and living together, then grandparent cannot seek visitation. What about where grandparents believe the married parents are mistreating the children? In this situation, it may be best to report suspicions to the Department of Social Services
2. Parents must be unreasonably withholding visitation for 90 days.
Grandparents can only seek visitation after the parents withhold visitation for 90 days. The parents must have also withheld visitation unreasonably. What is “unreasonable” depends on the facts. Counting 90 days after the last time the grandparent saw the grandchild is easy. But the tricky part is determining whether withholding visitation is reasonable.
For example, let’s say that a grandparent struggles with sobriety. Then a parent’s decision to withhold visitation would be reasonable. A less drastic example: if the grandparent encourages the grandchild to misbehave toward their parent. Or the grandparents oppose the parents’ parenting style. This, too, may be reasonable.
But there is a lot of conflict is where the custodial parent refuses to let the grandparents on the non-custodial side of the family visit the child.
For example, the mother, who has custody, refuses to let the father’s parents visit the child. The paternal grandparents ask for visitation, and the mother ignores the requests. This may be “unreasonable.”
3. Grandparent visitation wouldn’t interfere with parent-child relationship.
The grandparent visitation cannot interfere with the parent-child relationship. Just like whether withholding visitation is unreasonable, this too is open to interpretation. Judges look to see if grandparent visitation would strain on the parent-child relationship. If this is the case, then this might hinder a grandparent getting visitation.
It’s important to note that this is narrowly focused on the parent-child relationship. It doesn’t extend to other family members. It does not extend to step-parents. This is true even if the step mother takes an active role in parenting the child. The judge does not consider her relationship to the child. This is because only parents have fundamental rights to parent their children.
4. Grandparent visitation is in the child’s best interest.
This goes back to the main idea that parent’s rights trump those of a grandparent. The law assumes that parents know what is best for their children. As a result, judges don’t want to interfere.
But there is an exception. Grandparents must prove that grandparent visitation is in the child’s best interest. The “child’s best interest” is a standard the judges refer to in cases about children. What is in the child’s best interest depends on the facts of each case. What judges are looking for is what will make the child more healthy. A healthier environment is always in the best interests of the child. A more supportive environment may be what’s in the best interests of the child. Grandparents making sure the child gets on the school bus every day may be in the best interests of the child.
5. …Or The Parent Is Deemed Unfit.
Judges will also grant grandparent visitation, or custody, when a parent is unfit. This often happens after the state terminates parental rights. To end parental rights, the state has to show that the parents are unfit to raise children. This is a tall order. The state needs to show that the child is better outside of the biological parents’ care.
When the court deems parents to be unfit, the parent loses their rights to parent. This means they can no longer make decisions for the child. It means the parent can no longer decide who can have access to the child. It will also limit the parent’s access and communication with their children. When a judge finds parents unfit, it means the parent doesn’t know what’s best for the child.
But even if a parent is fit, grandparents can still argue that grandparent visitation is in the child’s best interest. Here, the judge will decide whether it is appropriate for the court to override the parent’s decision. But to do so, the court must be convinced that ordering grandparent visitation is what is best for the child. Keep in mind it’s not what’s best for the grandparent or parent—it’s what’s best for the child.
How Much Grandparent Visitation Can I Get In South Carolina?
When grandparents win visitation rights, the extent of that visitation depends on the judge. Grandparents are usually awarded less than what a parent would receive for visitation. It’s not uncommon for a grandparent to be awarded one weekend per month and a week or two over the summer. Holidays usually aren’t awarded as the court wants to reserve those for the parent.
But this also depends on the facts of each case. Grandparents can show it’s in the child’s best interest that they have visitation on certain holiday.
How Do I Get Grandparent Visitation?
To get visitation of your grandchild, you must file a case in the county where your grandchild lives. After you file your case, the court can grant you visitation on a temporary basis at a temporary hearing. Because of the complexity of grandparent visitation cases, it would be best to consult with an attorney before filing a case.
The Maron Law Group helps grandparents in the Charleston, Columbia, and Greenville areas get visitation with their grandchildren. Contact us today for a free consultation, or call us at (843) 998-0644.