Grandparent Rights in South Carolina: Visitation and Custody

As family law attorneys in Charleston, we often hear whether South Carolina law gives grandparents rights. In this article, we explain a grandparent’s rights to visitation or custody in South Carolina. Also, we explain an important legal concept known as the psychological parent doctrine. Lastly, we give pointers on how a grandparent can assert their rights in South Carolina. So when can a grandparent in South Carolina get court-ordered visitation or custody of a grandchild?

Quick Answer: In South Carolina, a grandparent can ask the family court for visitation only if one or both parents are deceased, divorced, or living apart, the parents are unreasonably denying visitation, visitation would not interfere with the parent-child relationship, and the grandparent proves by clear and convincing evidence that the parents are unfit or that compelling circumstances exist. Because fit parents have a constitutional right to make decisions about their children, grandparents face a high burden.

What Are Grandparent Rights in South Carolina?

There are two parts to grandparent rights in South Carolina: (1) a grandparent’s right to visitation and (2) a grandparent’s right to custody.

Can Grandparents Get Visitation in South Carolina?

The first part of grandparent rights in South Carolina is visitation. South Carolina Code § 63-3-530 allows grandparents to seek a family court order permitting visitation with their grandchildren when either or both of the child’s parents are deceased, divorced, or living separate and apart, if these requirements are met:

• First, the grandparent must be the natural or adoptive parent of the child’s natural or adoptive parent.
• Second, either or both of the parents of the minor child must be deceased, divorced, or living separate and apart in different habitats.
• Third, the court must find that the child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation for a period exceeding 90 days.
• Fourth, the court must find that awarding grandparent visitation would not interfere with the parent-child relationship.
• Fifth, the court must find by a higher standard of evidence (called “clear and convincing evidence”) that either (1) the child’s parents or guardians are unfit or (2) there are “compelling circumstances” to overcome the legal presumption that the parental decision to deny visitation to the grandparent is in the child’s best interests.

If the family court finds that all of the requirements above are met, it may award visitation to the grandparent. The court must carefully decide the visitation schedule so it does not interfere with the parent-child relationship. The court must also give weight to a fit parent’s reasonable limits on visits, including limits intended to protect the child’s normal activities.

Clear and Convincing Evidence – Clear and convincing evidence is a higher standard of proof in court. Evidence is clear and convincing when it is highly and substantially more likely to be true than untrue. The standard of proof is high in a grandparent rights claim in South Carolina because our laws recognize the superior rights of natural parents.

Compelling Circumstances – Compelling circumstances are determined on a case-by-case basis. A fit parent’s decision about who sees the child is presumed to be in the child’s best interest. Showing that a child would benefit from contact with a grandparent or that the parent’s refusal seems unreasonable is not enough. Instead, the grandparent must show something more serious, such as significant harm to the child if visitation is denied.

South Carolina courts have found compelling circumstances where a parent’s deceptive and contemptuous obstruction of visitation harmed the children, but even then the court respected the parent’s reasonable limits on visits. On the other hand, a parent who offers reasonable supervised visits is not necessarily “unreasonably depriving” a grandparent of visitation just because the grandparent wants unsupervised time.

Attorney’s Fees and Costs – A grandparent seeking court-ordered visitation in South Carolina should also know the judge may award attorney’s fees and costs to the prevailing party. The award is discretionary, not automatic. If the grandparent loses, the court could order the grandparent to pay the parent or guardian’s attorney’s fees; if the grandparent prevails, the court could order the parent or guardian to pay the grandparent’s attorney’s fees. But if a grandparent is reading this article, they’re likely concerned with much more than money.

Can Grandparents Get Custody in South Carolina?

The second part of grandparent rights in South Carolina is custody. One common way for a grandparent to seek custody of their grandchild from a biological or adoptive parent is to show that he or she (or possibly both) is a “de facto custodian” of the child under South Carolina Code § 63-15-60, which provides:

“[A] ‘de facto custodian’ means, unless the context requires otherwise, a person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who:

(1) has resided with the person for a period of six months or more if the child is under three years of age; or

(2) has resided with the person for a period of one year or more if the child is three years of age or older.

Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child must not be included in determining whether the child has resided with the person for the required minimum period.”

If a grandparent in South Carolina can prove they are a de facto custodian, then the family court may award the grandparent custody if there is clear and convincing evidence of either of the following:

• The child’s natural parents are unfit; or
• Other compelling circumstances exist.

Examples of evidence of unfitness include abandonment, neglect, physical abuse, and emotional abuse. Courts decide other compelling circumstances on a case-by-case basis.

De facto custodian status is not the only route to custody. For example, grandparents who have knowledge of a child’s neglect may have standing to bring a custody action without proving they are de facto custodians or psychological parents. Either way, a fit parent has a superior right to custody, and the grandparent must present compelling circumstances strong enough to overcome it.

As with grandparent visitation claims, when deciding whether a grandparent should have custody, the child’s best interest is the primary and controlling consideration for the family court. If a child is in immediate danger, a grandparent may also want to learn about emergency custody in South Carolina. For more on how the family court weighs a child’s best interest, see our article on South Carolina’s custody laws.

How Does the U.S. Constitution Limit Grandparent Rights in South Carolina?

While South Carolina Code § 63-3-530 lays out grandparent rights in South Carolina, the U.S. Supreme Court has limited what a family court judge may decide. In Troxel v. Granville, an unmarried couple had two children who frequently visited their father’s parents (paternal grandparents). After the father died, the mother decided to limit the paternal grandparents’ visitation to once per month and some time during the holidays. The grandparents filed a lawsuit, and the trial judge decided that it was in the children’s best interest to spend more time with the grandparents. However, the U.S. Supreme Court disagreed.

In Troxel, the U.S. Supreme Court analyzed the case under the 14th Amendment’s Due Process Clause. The Supreme Court noted that the 14th Amendment’s Due Process Clause “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Applying the 14th Amendment, the Supreme Court ruled that “the visitation order in this case was an unconstitutional infringement on [the mother’s] fundamental right to make decisions concerning the care, custody, and control of her two daughters.” That is why South Carolina requires grandparents to overcome the presumption that a fit parent’s decision is in the child’s best interest.

What is the Psychological-Parent Doctrine in South Carolina?

In cases involving grandparent rights in South Carolina, our courts have recognized the Psychological-Parent Doctrine, which allows a third party, including a grandparent, to request custody or visitation with a child. In deciding whether there is a psychological-parent relationship between a grandparent and a child, the family court analyzes the following four factors:

• Whether the biological or adoptive parent(s) consented to, and fostered, the third-party’s formation and establishment of a parent-like relationship with the child;
• Whether the third-party and the child lived together in the same household;
• Whether the third-party assumed obligations of parenthood by taking significant responsibility for the child’s care, education, and development, including contributing towards the child’s support, without expectation of financial compensation; and
• Whether the third party has been in a parental role long enough to establish a bonded, dependent relationship with the child that is parental in nature.

Being a psychological parent does not, by itself, give a grandparent visitation or custody over a fit parent’s objection. South Carolina courts have allowed visitation where cutting off a psychological-parent relationship would cause the child significant harm, which amounted to compelling circumstances. Custody requires a separate, substantial showing to overcome the parent’s superior right.

Can Grandparents Get Visitation If the Parents Are Married and Living Together?

Generally, no. South Carolina’s grandparent visitation statute applies only when one or both parents are deceased, or the parents are divorced or living separate and apart. If the child’s parents are married, living together, and both alive, the statute does not authorize a family court to order grandparent visitation over their objection. When divorced or separated parents disagree about moving a child to another state, our article on whether a parent can move a child out of South Carolina without permission explains how the family court handles relocation.

Do Grandparents Have Visitation Rights If a Parent Dies in South Carolina?

The death of a parent allows a grandparent to ask for visitation, but it does not guarantee it. The death of a parent alone is not a compelling circumstance. In unusual cases, the need to maintain a child’s ties to a deceased parent’s family may qualify, but the grandparent must still prove every requirement of the statute, including unreasonable deprivation and either unfitness or compelling circumstances by clear and convincing evidence.

Can Grandparents Get Custody If DSS Removes a Child?

A grandparent has no automatic right to intervene in a DSS case or to receive placement of a grandchild just because they are a grandparent. However, when a child is in DSS custody, DSS must try to identify an appropriate relative or fictive kin, and placement plans give preference, absent good cause, to a relative or other known person with a constructive, caring relationship with the child. A grandparent can ask to be considered for placement, but neither rule guarantees it.

Also, you cannot bring a proceeding to establish de facto custodian status while the child is in DSS custody. You can learn more about DSS child abuse and neglect cases in South Carolina in our separate article. If DSS seeks to end the parents’ rights, our articles on terminating parental rights in South Carolina and adoption in South Carolina explain what happens next, including when a relative may be able to adopt the child.

How Do Grandparents Make a Claim for Custody or Visitation in South Carolina?

When it comes to grandparent rights in South Carolina, judges hear all sorts of stories regarding the kids’ relationships with their grandparents. Often, the stories don’t match, and the court will try to figure out the truth.

One fundamental way to do this is for a grandparent to build a bank of tangible evidence. Pictures of grandparents with the children are excellent. Receipts, credit card and bank statements, airline itineraries, or other evidence of events attended by both the grandparent and child may also be useful. Gather receipts, credit card statements, or bank statements for items bought for the kids. These items can be useful, such as clothes, or strictly fun, such as toys.

Grandparents should look for emails, letters, or text messages with the parents to show evidence that they communicate about the kids. They should look for birthday or holiday cards to the grandparents and signed by the kids. They should look for emails, letters, and text messages with the kids. They should check the phone logs for evidence of repeated phone calls with the kids.

Should You Hire a Lawyer for Grandparent Rights in South Carolina?

As you can tell from this article, grandparent rights in South Carolina are very complicated. If a grandparent in South Carolina seeks custody of or visitation with a grandchild, the burden of proof is high, the court must consider many factors, and 14th Amendment issues are involved. In other words, if you are a grandparent seeking custody or visitation, then don’t go it alone – hire a family law attorney. If you are in Charleston or the surrounding areas, then contact our family court lawyers today.

Contact our Charleston divorce lawyers at Futeral & Nelson, LLC today to discuss your case.