In the state of South Carolina, grandparents seeking visitation face an uphill battle. The state had a functional visitation statute until 2000, when the U.S. Supreme Court decision of Troxel v. Granville threw the constitutionality of such statutes into question. Then the following chain of events made it much more difficult for grandparents to win visitation.
Case of Camburn v. Smith
In 2003 the South Carolina Supreme Court used the Troxel opinion to guide their decision in the case of Camburn v. Smith.
The South Carolina judges subsequently found that visitation cannot be awarded over the objections of fit parents. In order to win visitation the parents must be shown to be unfit by "clear and convincing evidence." The only exception to the rule, the court found, was when "compelling circumstances" supported visitation. This decision made it very difficult for grandparents to win visitation cases.
Law Passed in 2010
In 2010 South Carolina lawmakers crafted and passed a law that was designed to meet the constitutionality demands of Troxel v. Granville and Camburn v. Smith. The revised law gives family courts the power to order grandparent visitation if a parent is deceased or if parents are divorced or living separately, but only when two specific criteria are met:
- The parents must be "unreasonably" denying the grandparents contact with the grandchild, with 90 days being the minimum time without contact.
- There must be a finding that grandparent visitation would not interfere with the parent-child relationship.
These requirements are conjunctive, meaning that both must be present. Added to these requirements are the requirements derived from Camburn: The grandparents must either show that the parent is unfit or demonstrate a compelling reason to overrule the parent's decision.
Due to the stringency of these requirements, South Carolina is usually classified as a restrictive state for grandparents' rights. Until 2014, however, another stringent requirement was a part of the law. That part required that a grandparent show that the grandparent-grandchild relationship was similar to a parent-child relationship. In 2014 the legislature revised the law and took away that requirement.
Filing as De Facto Custodian
Some attorneys are proposing that grandparents sue under the status of "de facto custodian." A de facto custodian is one who was a child's primary caregiver and primary financial support for a specified period of time. For children three years old or younger, the specified period is six months. For children older than three, the specified period is one year. Again, proving that one has been a de facto custodian can be quite involved. In addition, these provisions are of no help to grandparents whose relationship with a child has been that of a grandparent rather than a parent. Grandparents in South Carolina who have acted as a parent to a grandchild should document that relationship and take other steps to safeguard their grandparents' rights.
South Carolina also recognizes the concept of psychological parents, but this concept is not contained in any statute.
Instead it derives from the case of Middleton v. Johnson.
To be recognized as a psychological parent, one must meet four tests:
- Your relationship with the child must have been consented to and fostered by the parents.
- You must have lived in the same household as the child.
- You must have assumed a parental role in taking responsibility for the child's care and education, including providing support without the expectation of financial gain.
- You must have spent long enough in the parental role to have established a "bonded, dependent relationship parental in nature."
One who is determined to fill the role of a psychological parent may be awarded contact with a child.
See South Carolina Children's Code. Consult Section 63-3-530A-33 for grandparent visitation or Section 63-15-60 to learn about de facto custodians.
You may also read a summary of grandparents' rights from the South Carolina Bar.
- Learn More: Six Steps for Estranged Grandparents
- See Also: How the Death of Your Child Affects Your Grandparents' Rights