CAN A PARENT PUT CONDITIONS ON A GRANDPARENT’S VISITS WITH THEIR GRANDCHILD?

Can a parent put conditions on a grandparent’s visits with their grandchild?

There are limited situations when a grandparent can try to force visitation with their grandchild or try to take custody of their grandchild in SC. What if the parent is offering to allow visitation but the parent places conditions on the visitation like insisting that the visits are supervised?

Does the grandparent have to do what the parent says, or can they ask the family court to intervene?

PARENTS MUST PREVENT GRANDPARENT VISITS FOR 90 DAYS BEFORE THE COURT WILL INTERVENE

Pursuant to S.C. Code § 63-3-530(33), one of the requirements before a grandparent can ask the court to order visitation in SC is that the parent denied visitation for longer than 90 days.

If both parents are alive and are not divorced, grandparents do not have much recourse to force visitation. Grandparents can ask the court to order visitation when:

• One or both parents are deceased;
• The parents are divorced; or
• The parents are living separately.

The additional requirements include:

• the child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding ninety days; and

• awarding grandparent visitation would not interfere with the parent-child relationship; and:(a) the court finds by clear and convincing evidence that the child’s parents or guardians are unfit; or(b) 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.

So, what if the parent allows visits with the grandparents but puts restrictions or conditions on the grandparent visits?

A PARENT CAN PUT REASONABLE CONDITIONS ON A GRANDPARENT’S VISITATION WITH THEIR GRANDCHILD

When a parent places conditions on a grandparent’s visits with their grandchild, is that the same as denying visitation?

In Brown v. Key, the SC Court of Appeals held that placing reasonable conditions on grandparent visitation is not the same as denying visitation and pointed out that other states have reached the same conclusion.

Limitations on Grandparent Visits is not Denial of Visitation

For example, Indiana courts have held that “grandparents are not automatically entitled to ‘have the type of visitation they want.’” In the Indiana case Swartz v. Swartz, the court found that a mother’s decision to limit grandparents’ visitation to Sunday afternoons was reasonable even though the grandparents insisted on overnight visits:

This factor [Mother’s permitting Sunday visitation] is significant because “once a parent agrees to some visitation, the dispute is no longer over whether the grandparent will have any access to the child, but instead over how often and how much visitation will occur.” Where a parent has denied all visitation, the grandparent must “pursu[e] the right to have a relationship with the child.” Thus, “the case for judicial intervention” is strengthened. However, where there is merely a “disagreement between parent and grandparent over how much access is appropriate[,]” judicial intervention is more likely to infringe upon the parent’s fundamental right.

The bottom line is that parents have the right to make important decisions for their children and, unless the parent’s decision is unreasonable, the grandparents’ visitation is being denied, and the conditions listed in the SC grandparent visitation laws are present, the courts are going to allow the parent to make decisions on behalf of their children – even if the grandparents disagree.

Reasonable Conditions on Grandparent Visits is not Denial of Visitation

In finding that reasonable conditions on grandparent visitation are not the same as a denial of visitation, the SC Court of Appeals in Brown v. Key also cites to a Missouri case – Missouri has a similar 90-day requirement.

Although the grandparents did not feel like their visits with their grandchild were long enough or private enough, the Missouri courts found that it was not a denial of visitation where:

• The grandparents visited for a couple of hours while dropping off presents for the grandchild;
• The grandparents attended a party with the grandchild at her daycare; and
• The grandchild visited in the grandparents’ home for several hours while they wrote thank-you notes.

SC courts have reached the same conclusion as Indiana, Missouri, and other states – when a parent puts reasonable conditions on a grandparent’s visitation with their grandchild, that is not a denial of visitation and the courts will not intervene.

Brown v. Key – Grandparents Must Agree to Reasonable Conditions

In Brown v. Key, the grandchild’s Father died in a car accident when the child was one year old. The grandmother did not approve of Father’s relationship with Mother and was apparently supporting Father’s new relationship with another woman before his death.

After Father’s death, Mother repeatedly offered to allow grandmother to visit with her grandchild but insisted that the visits be supervised “because of the hostility between the parties following Father’s death and because Child was young and had not spent much time with Grandmother.”

Grandmother responded, “I will not be supervised” and instead filed an action in the family court to force visitation with the grandchild.

The SC Court of Appeals held that, although a parent cannot get around the statutory 90-day rule “by allowing grandparents a fleeting visit with a child every eighty-nine days or intentionally offering visitation when parent knows grandparent cannot be available,” a grandparent must accept a reasonable offer of visitation.

If the grandparent refuses to accept an offer of visitation, even though conditions or restrictions are placed on the visits, they cannot ask the family court to force visitation.

GOT AXELROD?

If you are a grandparent who is being denied visits with your grandchildren, or if you are a parent and the grandparent is attempting to unreasonably force visits with your child, the SC child custody and visitation attorneys at Axelrod and Associates may be able to help.

Call now at 843-353-3449 or email us a contact form to set up an initial consultation with an experienced SC child custody and visitation attorney on the Axelrod team.