The topic of grandparent visitation has become increasingly relevant in South Carolina. Grandparent visitation rights are a complex and nuanced area of family law in the state. Under South Carolina law, grandparents do not have an automatic right to visitation or custody of their grandchildren. Additionally, the law does not place parents and grandparents on equal footing when it comes to visitation.
S.C. Code Ann. § 63-3-530(33) provides that grandparents may be granted visitation if either or both parents of the minor child are deceased, divorced, or living separately, provided the court finds that:
1. The child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including a situation where visitation has been denied for a period exceeding ninety days; and
2. Granting grandparent visitation would not interfere with the parent-child relationship; and either:
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.
The statute also allows the court to award attorney’s fees and costs to the prevailing party. It is important to note that the grandparent must be the natural or adoptive parent of one of the child’s parents; step-grandparents are excluded from this provision.
For example, in Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003), the South Carolina Supreme Court held that because the children were well-cared for by both parents, and there was no clear and convincing evidence that the parents were unfit or that compelling circumstances existed, the family court had erred in requiring the parents to justify their decision. The Court reversed the family court’s order that had allowed grandparent visitation, emphasizing that undue interference with parental rights was impermissible.
However, in Marquez v. Caudill, 376 S.C. 229, 656 S.E.2d 737 (2008), the Court upheld a visitation award to the grandmother, citing the death of a biological parent and the effort to maintain ties with that deceased parent’s family as compelling circumstances. The Court found that this visitation did not interfere with the relationship between the children and their stepfather.
Further, the importance of a strong, parent-like relationship between grandparents and grandchildren was further underscored in Bazen v. Bazen, 428 S.C. 511, 837 S.E.2d 23 (2019). The Court recognized the significance of maintaining such relationships for the welfare of the children, particularly following the death of a parent.
Finally, in Jacobs v. Zarcone, Op. No. 5901 (S.C. Ct. App. filed Mar. 16, 2022), the South Carolina Court of Appeals found that the paternal grandparents had played an active role in the children’s lives, even while their father was alive. The Court noted that although the grandparents were not outright denied visitation, there were instances where the lack of flexibility in the visitation schedule could be seen as an unreasonable denial, which warranted the court’s intervention.
In conclusion, the awarding of grandparent visitation in South Carolina is determined on a case-by-case basis, with courts carefully weighing the unique circumstances of each situation.