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South Carolina Grandparents' Rights

Law Amended in 2010 Remains a Formidable Obstacle


South Carolina grandparents' rights

South Carolina has struggled with the issue of grandparents' rights.

Image © State of South Carolina

In the state of South Carolina, grandparents seeking visitation face an uphill battle. The state had a functional visitation statute until the U.S. Supreme Court decision of Troxel v. Granville threw the constitutionality of such statutes into question. In 2003 the South Carolina Supreme Court used the Troxel decision to guide their decision in the case of Camburn v. Smith. In that decision the South Carolina judges found that visitation cannot be awarded over the objections of fit parents; therefore, 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.

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 three specific criteria are met. First, the parents must be "unreasonably" denying the grandparents contact with the grandchild, with 90 days being the minimum time without contact. Second, the grandparent must have had a relationship with the child similar to a parent-child relationship. Third, there must be a finding that grandparent visitation would not interfere with the parent-child relationship. These requirements are conjunctive, meaning that all three must be present. Added to these three narrow 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.

Grandparents in South Carolina who think they may have to file for visitation and who have had a parent-type relationship with a grandchild should document that relationship and take other steps to safeguard their grandparents rights. Other grandparents have very little chance of success in court. Some attorneys are proposing that grandparents sue under the status of "psychological parent" or "de facto custodian," but, again, these strategies are of no help to grandparents whose relationship with a child has been that of a grandparent rather than a parent.

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. The principle of a psychological parent is derived from case law, specifically the case of Middleton v. Johnson.

You may also read a summary of grandparents' rights from the South Carolina Bar.

Go back to grandparents rights by state.

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