4701 Oleander Drive, Suite A
Myrtle Beach, SC 29577
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?
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.
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.
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 Court can also award attorney fees and costs under S.C. Code § 63-3-530.
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.
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…
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?
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.
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:
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.
Fields marked with an * are required