Although grandparents in South Carolina have very limited legal rights to enforce visitation or custody with their grandchildren, it is possible in many situations.
SC law gives grandparents visitation rights in specific circumstances when the child's parents are dead, divorced or separated - beyond this, courts also tend to favor grandparents' visitation or custody in situations where any third party could step in and file a custody action...
In any case, grandparents will need to understand the law of child visitation and custody in South Carolina, the factors that the Court will consider when deciding, and what evidence or testimony the Court will need to hear when making a decision.
When can grandparents in SC get visitation or custody of their grandchildren, and what needs to be proven?
When Can Grandparents Force Visitation Rights?
If you are a grandparent and your child is refusing to allow you to see your grandchild, you may have an uphill battle to persuade the Court to force visitation over your child's objection - it is not impossible, however.
Let's look at the situations when a Court may order visitation and what must be proven to be successful.
Grandparent Visitation When Both Parents are Alive and Together
In general, "grandparent's rights are derivative of their child's rights."
If the parents are living together, the grandparents can visit the child only with the parent's permission. If the parents are separated or divorced, the grandparents can visit with the child only when the parent has visitation and consents...
So long as the parents are fit, and they are caring for their children, there is a presumption that the parents' decisions are in the child's best interest, and courts will not interfere with the parents' decisions, including whether to allow grandparents to visit...
Although most courts will give special consideration to a grandparent, they must rely on the rule as applies to any third party to force visitation when the parents are together - if there are compelling circumstances, the Court may order visitation.
The fact that a child would benefit from visiting with their grandma or grandpa is, unfortunately, not a compelling circumstance - we need to show something more - that not allowing the visitation would result in harm to the child, for example.
When the Parents are Deceased, Divorced, or Separated
If one or both parents are deceased or if the parents are divorced or separated, and if the parent or guardian is preventing the grandparent from seeing their grandchild, SC law provides a remedy for grandparents in S.C. Code § 63-3-530(33).
The Court will order grandparent visitation rights when:
- The child's parents or guardians have denied visitation of the minor child to the grandparent for a period exceeding 90 days; and
- The grandparent had a relationship similar to a parent-child relationship with the minor child; and
- Awarding grandparent visitation would not interfere with the parent-child relationship; and:
- The court finds by clear and convincing evidence that the child's parents or guardians are unfit; or
- 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 Court can also award attorney fees and costs under S.C. Code § 63-3-530.
When Can Grandparents Get Custody of a Grandchild?
Grandparents do not have any special rights under SC law when it comes to custody, although courts will usually give them special consideration because, well, it's grandma...
You wouldn't be seeking custody of a grandchild unless there were some serious issues with the child's well-being - if a child is being abused or neglected, for example. When a child is abused or neglected, any interested person can intervene, file a custody action, and ask the Court to award them custody.
For most children, the grandparent is certainly "an interested person," and the grandparent will be in a better position than most to take custody and to take over caring for the child or children.
Jobst v. Martin - Grandparents Have Standing to Seek Custody
The SC Court of Appeals confirmed that grandparents have standing to file a custody action in Jobst v. Martin, holding that grandparents, or any interested person, can file a custody action if they have reason to believe that their grandchild is being abused or neglected.
SC Code § 20-7-420(20) says that the family court has jurisdiction to award custody to a child's parent, or to "any other proper person or institution." The Court of Appeals specifically held that this includes grandparents...
SC Code § 63-3-550 says that any person who has knowledge that a child is being neglected can file a custody action. Again, the Court of Appeals pointed out that this includes grandparents...
Can Grandparents Adopt a Grandchild?
Although adoption is not necessary to take custody of a child and become their guardian, there are situations when it may be in the child's best interest.
It's a decision that should be carefully considered - will the parents be able to step back in and raise their children at some point in the future? Although you, the grandparent, now have custody of the child, are the parents still involved in the child's life? Are they paying child support and visiting with their child?
Termination of Parental Rights in SC
Before any person can adopt a child, the parental rights of the biological parent must be terminated - in many cases, this is not appropriate and will prevent an adoption unless there are compelling reasons - the biological parent must be proven to be unfit by clear and convincing evidence - or the biological parent consents.
On the other hand, there are many situations when it is entirely appropriate - the parent may be serving a life sentence in prison, or they may have disappeared from the child's life completely. It's a decision that must be made on a case-by-case basis, but it is a decision that should be carefully considered by all parties.
Why Would Grandparents Adopt a Grandchild?
Children need stability.
They need to feel like they belong, they are safe, and they are part of a family unit. When a child's parents are unable to provide for the child, the grandparents are often an obvious choice and may be in the best position to provide a loving home.
Adoption may not be necessary for this, but there are many reasons that grandparents adopt a grandchild including:
- Permanence: Custody is a temporary situation that can be reversed. Once an adoption is final, the biological parents or others cannot show up and ask a court to give them custody of the child.
- Stability: Knowing that they have a permanent home and that the court will not take them away again can have a positive effect on a child's well-being.
- Inheritance: Adoption ensures that a child will inherit directly from the grandparent - they are now a beneficiary of your estate as if they were your biological child.
- Benefits: There may be other benefits like medical, insurance, retirement, social security that the child will have access to after adoption.
- Medical decisions: Although legal custody may allow the custodian to make medical decisions for the child, the Court can place limits on the custodian's authority - even when a grandparent has custody, the parent still has rights to make decisions for the child. Adoption ensures that you have the right to make medical decisions for the child and that the Court cannot place limits on that right.
Advocating for Grandparents' Rights in Myrtle Beach, SC
The SC child custody and visitation attorneys at Axelrod and Associates believe that, in most cases, grandparents should have the right to visit their grandchildren and be a part of their lives. Depending on your situation, we can help you to enforce visitation with your grandchildren, seek custody of your grandchildren, or adopt your grandchildren.