I would love to see the May 24, 2017 Court of Appeals opinion in Baker v. Hardwick get published. Not just because T. Ryan Phillips and I share office space; not just because I referred him the appeal that he turned into a victory reversal. Baker establishes an important legal principle: the outer limits of standing for the family court to award visitation to non parents.
In Baker the child was placed with the Bakers [the child’s distant relatives] when DSS brought a removal action against the child’s parents. DSS eventually return the child to Hardwick, the child’s father. Meanwhile the Bakers filed for custody. Realizing that Hardwick was likely fit, the Bakers approached trial seeking visitation if they were not awarded custody. The family court awarded Hardwick custody but awarded the Bakers visitation. Before Hardwick’s motion to reconsider was resolved, he was held in contempt for refusing the Bakers visitation. He appealed the contempt order and the underlying visitation order but was unsuccessful in obtaining a stay of the visitation order during appeal.
The Court of Appeals opinion reversed both orders. It found the family court incorrectly determined that the Bakers had standing to seek visitation. The opinion notes the four ways that a non-parent can have standing to obtain visitation: the grandparent visitation statute [S.C. Code Ann. § 63-3-530(A)(33) (Supp. 2016)], the sibling visitation statute [S.C. Code Ann. § 63-3-530(A)(44) (2010)], the De Facto custodian statute [S.C. Code Ann. § 63-15-60(B)], and the psychological parent doctrine. Middleton v. Johnson, 369 S.C. 585, 594, 633 S.E.2d 162, 167 (Ct. App. 2006). Finding none of the four could be applicable here, it found the Bakers lacked standing to seek visitation.
Baker should have been published. It establishes important law on the issue of standing of non-parents to seek visitation in South Carolina. This is an issue that frequently recurs and the family court bar and bench would benefit from the guidance and authority it would supply as a published opinion. There is no published case law that succinctly establishes the various ways that a non-parent party can have standing to seek visitation. This unpublished opinion does succinctly state this law. Because standing can be obtained via two separate statutes (with two different methods within one statute) and one judicially created doctrine, it can be hard to establish the limitations of standing without citing to multiple authorities. Being able to cite to one authority to establish this matter would be helpful.
Further, there is obvious confusion on the limits of standing to seek visitation, as evidenced by the incorrect decision by the lower court. Absent clear authority, this is a incorrect decision I could see other family court judges making. Meanwhile Hardwick case was ordered to make his child available for visitation when the court had no authority to so order him. He was even found in contempt for failing to comply with an ultimately invalid order. The potential for intrusion into a fit parent’s constitutionally protected right to determine who has relationships with his or her child(ren) that stems from this lack of authority would be greatly reduced by having clear authority on this matter.
The issue resolved in this appeal is subject to frequent recurrence, involves constitutionally protected rights, and subjects parents to potential incarceration if the family court incorrectly determines standing. For all of these reasons, this opinion should be published. Attorneys who agree with me, and wish to support Mr. Phillips in his motion to publish, are welcome to send him a supporting affidavit.
