In South Carolina, grandparents’ rights are derivative of their child’s rights. This means that in typical circumstances, a grandparent may visit with a grandchild only when the grandparent’s child has visitation.
The law is clear 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 in the United States Constitution. The court must give "special weight" to a fit parent's decision regarding visitation. A court considering grandparent visitation over a parent’s objection must allow a presumption that a fit parent’s decision is in the child's best interest. So 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 parents children. Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003).
The Family Court can grant visitation to a third party over a fit parent’s objection when faced with compelling circumstances, such as significant harm to a child. Compelling circumstances will be determined on a case-by-case basis, but the Court will consider the children's best interests in deciding custody and the judge will consider several factors including: the children's relationship with each other and with their parents; the children's adjustment to home, school, and community; the mental and physical health of all children and their parents; and, in certain circumstances, the wishes of the child or children. However, it is not enough just that a child may benefit from contact with a grandparent.
When one parent dies, the parents of the deceased may still be able to have visitation rights if the meet the criteria in S.C. Code Ann. § 63-3-530(33) and can show compelling circumstances.
South Carolina also recognizes the doctrine of a psychological parent. There is a 4-part test which is used to evaluate whether or not a person qualifies as a psychological parent:
1. that the child’s biological or legal parent or parents consented to and facilitated the formation and establishment of a parent-like relationship with the child;
2. that the petitioner and the child lived together in the same household;
3. that the petitioner undertook obligations of parenthood through responsibility for the child’s care, education, and development without expectation of financial compensation;
4. that the petitioner has been in a parental role for a length of time sufficient f or a parental bond to be established with the child. Middleton v. Johnson 369 S.C 585, 633 S.E.2d 162 (Ct.App. 2006).
According to S.C. Code Ann. § 63-15-60, a grandparent may also qualify as a de facto custodian in some circumstances. 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.
In gathering information to assist in making a decision, a judge may use investigative agencies, psychologists and others. The Judge may also appoint a lawyer to represent the interest of a child or children.
This information was prepared to give you some general information on the law. It is not intended as legal advice about any particular problem. If you have questions about the law you should consult a lawyer. If you do not know a lawyer, you can call the South Carolina Bar Lawyer Referral Service weekdays between 9 a.m. and 5 p.m. The number is 799-7100 in Richland or Lexington Counties, and 1-800-868-2284 from other parts of the state.