Can the Family Court Order Grandparent Visitation?

On June 9, 2014 Governor Nikki Haley signed into law House bill 4348 amending S.C. Code § 63-3-530 (A)(33), commonly known as the grandparent visitation statute. The new law is effective immediately.

This law makes it much easier for grandparents to obtain court-ordered visitation with their grandchildren. As modified, subsection 33 now authorizes the family court:

to order visitation for the grandparent of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats, if 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 denying visitation of the minor child to the grandparent for a period exceeding ninety days; and

(2) awarding grandparent visitation would not interfere with the parent-child relationship; and:

(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 judge presiding over this matter may award attorney’s fees and costs to the prevailing party.

For purposes of this item, “grandparent” means the natural or adoptive parent of a natural or adoptive parent of a minor child.

The previous statute required grandparents to have a “a relationship similar to a parent-child relationship with the minor child” as a condition of awarding custody. Few grandparents could meet that requirement. The new statute offers many more grandparents the right to seek court-ordered visitation. Grandparents will still not be able to seek visitation when the child’s parents are living together. However when one or both parents are deceased, or the parents are divorced or not cohabiting, grandparents can seek visitation if such visitation would not interfere with the parent-child relationship and either the parents or guardians are unfit or there are compelling circumstances to overcome the presumption that the parental decision to deny such visitation is in the child’s best interests.  Further, where the previous statute made ninety days of denied visitation a prerequisite for seeking court-ordered visitation, the new statute merely makes that a basis to seek such court intervention.