In Troxel v. Granville, the United States Supreme Court ruled that where grandparents rights to custody were concerned, the Due Process Clause, “protects the fundamental right of parents to make decisions concerning the care, custody and control of their children.”
Thus, as a grandparent your “possession and access” (visitation and custody) or grandparents rights are limited. In other words, grandparents do not have a constitutional right to see their grandchildren.
Grandparents Rights to Custody
What is custody?
Custody can mean different things depending on the circumstances. Generally there are three kinds of custody of a child that can be ordered by the family court.
• Primary legal and physical custody means being the person the child lives with and the person that makes most decisions about how to raise the child.
• Visitation means getting to visit the child and helping to make some decisions about how to raise the child.
• Joint legal custody, both parents together make decisions about how to raise the child.
The court can give some jobs to one parent and other jobs to the other parent.
Example: The court could order primary physical custody where the child mainly lives with the mother, but spends every Wednesday night and every other weekend with the father. And, the court could order the mother to pay for the child’s health insurance but the father to pay for the child’s school lunches.
Can an Grandparent get legal custody of their grandchildren?
Unless both parents sign a power of attorney giving you the power to say where the child lives and to make decisions for the child, you must go to court to get custody over a grandchild. This means you have to file a lawsuit in a court asking the court to give you grandparent rights and custody of the child.
To file an original lawsuit asking for custody you should meet one of the following:
• The grandchild has lived with you for 6 months; or
• You must be able to prove that the child is being hurt because of the child’s living conditions or by the people caring for the child; or
• Both of the child’s parents, a surviving parent or the child’s court appointed guardian have agreed that the child should live with you.
Sometimes, someone else has already filed a lawsuit asking a court to say who the child should live with. To enter an existing lawsuit is “to intervene.” A grandparent who wants to intervene in a lawsuit to obtain grandparents rights should:
• Have had a lot of past contact with the child and
• Be able to prove that the child is being hurt because of the child’s living conditions or by the people caring for the child.
What does the court use to decide who should get custody of children?
The court has to answer the question, “What is in the best interest of the child?” The court decides each child’s case individually. However, a grandparent who wants the child to live with them must beat the “parental presumption.” The parental presumption says it is usually best for children to be raised by their parents. Judges know that nobody’s parents are perfect. So, it is not enough to show that a child’s parents are not so good. A grandparent must prove that living with the parents is very harmful to the child. Normally this means a showing that the parents are unfit or have actually abused the child in some manner.
What are some things that courts look at to decide what is in the best interest of a child?
The court may look at things like:
• What the child wants,
• What the child needs for physical and emotional health,
• If the child is in danger,
• If the parents or grandparents would be good at raising the child,
• If the child can get public benefits,
• If the home is stable and safe,
• The acts or omissions of the parent(s), for example, if the parents have committed crimes or have not cared for the child,
• Any excuses the parents have.
The judge can look at almost anything else that he thinks is important when deciding whether to award grandparents rights to custody or visitation of their grandchildren.
How does the “parental presumption” affect my grandparents rights?
The parental presumption says that it is usually best for children to live with their natural parents.
To beat the parental presumption and obtain grandparent rights usually you have to prove:
• The child will be hurt by living with the parents; or
• The parents have a history of family violence; or
• The parents voluntarily sent the child to live with someone else.
A grandparent has to prove that some specific thing the parents are doing is hurting the child emotionally or physically. This proof must be strong because close calls will go to the parent. If the parent is a proper person to have custody right now, the court will not use things the parent did in the past against them. For example, if the parent used illegal drugs in the past but stopped using drugs, then the court can say that the child can live with the parent.
Grandparents Rights to Visitation
What is grandparent visitation?
Generally visitation means getting to call the grandchild and have the child stay overnight with the grandparent on a regular basis.
My child won’t allow me to visit my grandchildren, what are my rights?
The United States Supreme Court has ruled that the right of a parent to decide who his or her child has contact with is one of the fundamental rights of parenthood. This is bad news for grandparents who do not get along with their grandchildren's parents. If the parents will not let the grandparents visit the child, the grandparents have to prove that the parents are unfit or that the child is being hurt by not being able to see the grandparents. This is very hard to prove.
Can I ask a court for the right to visit my grandchildren?
To get a court order allowing visits, a grandparent must file a lawsuit in the family court.
To win, a grandparent must usually show that their child:
• Has not had his or her parental rights terminated;
• Has been in jail or in prison at least 3 months before the lawsuit was filed;
• Has been found to be incompetent by the court;
• Is dead; or
• Does not have court ordered possession or access to the child.
Where does a Grandparent I go from here?
If the child is in immediate danger, you should call 911 or the Department of Social Services. Otherwise, it is best to try to work things out with your family members. If you are cannot agree, then you should talk to an attorney.
Grandparents Rights Laws
The family court found that, because the adoption of Jason was approved, it would analyze the visitation issue as if Stepfather is the biological father of both children. The family court found that, as we ruled in Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003), the grandparent visitation statute could be applied constitutionally. The family court found that, due to the particular facts of this case, maintaining the ties between the mother’s family and the children present compelling and exceptional circumstances to justify ordering visitation with Jason and Katie. After reviewing what amount of visitation is rationally related to achieve its stated goal of maintaining the mother’s memory and what is in the children’s best interest, the court specified the amount of visitation. Grandmother was allowed two weeks of visitation during the summer months and one week during the Christmas holidays. Grandmother was to be responsible for arranging all transportation and its related costs.
Stepfather argues that the grandparent visitation statute, S.C. Ann. § 20-7-420(A)(33), is either unconstitutional on its face, pursuant to Troxel v. Granville, 530 U.S. 57 (2000), or as applied to the instant situation. Section 20-7-420(A)(33) provides that the family court has exclusive jurisdiction to:
order periods of visitation for the grandparents of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats regardless of the existence of a court order or agreement, and upon a written finding that the visitation rights would be in the best interests of the child and would not interfere with the parent/child relationship. In determining whether to order visitation for the grandparents, the court shall consider the nature of the relationship between the child and his grandparents prior to the filing of the petition or complaint.
We addressed the constitutionality of the grandparent visitation statute in Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003). In Camburn, we stated that it is well-settled 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. Id. at 579, 586 S.E.2d at 567 (citing Troxel, supra). We noted that, under Troxel, the court must give “special weight” to a fit parent’s decision regarding visitation. Id. A court considering grandparents’ visitation over a parent’s objection must allow a presumption that a fit parent’s decision is in the child’s best interest:
[S]o 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 parent’s children.
Id. at 579, 586 S.E.2d at 567-568 (quoting Troxel, supra). Parental unfitness must be shown by clear and convincing evidence. Id. (citations omitted).
The presumption that a fit parent’s decision is in the best interest of the child may be overcome only by showing compelling circumstances, such as significant harm to the child, if visitation is not granted. Id. The fact that a child may benefit from contact with the grandparent, or that the parent’s refusal is simply not reasonable in the court’s view, does not justify government interference in the parental decision. Id. In Camburn, we stated that, in sum, parents and grandparents are not on an equal footing in a contest over visitation. Before visitation may be awarded over a parent’s objection, one of two evidentiary hurdles must be met: the parent must be shown to be unfit by clear and convincing evidence, or there must be evidence of compelling circumstances to overcome the presumption that the parental decision is in the child’s best interest. Id. at 579-580, 586 S.E.2d at 568. Accordingly, we have already ruled that the grandparents rights visitation statute is not facially invalid because it can be constitutionally applied in the appropriate circumstances.
A South Carolina Family Law Attorney can assist you if you have questions about grandparents rights and child custody in South Carolina. The attorney can review the facts of your case and advise you on your rights under the law.
For a Greenville Divorce and Child Custody Attorney call
L. Wayne Patterson
10 Century Dr., Suite A
Greenville, S.C. 29607
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