The October 30, 2019, South Carolina Supreme Court opinion in Bazen v. Bazen, 428 S.C. 511, 837 S.E.2d 23 (2019), would be interesting if it merely tested the constitutionality of South Carolina’s most recent version of its grandparent visitation statute–more on that later. However, this case, which featured a mother who mouthed the proper pieties about encouraging a relationship between her children and the parents of their deceased father while finding creative ways to avoid having these paternal grandparents actually spend time with those children, reveals the Supreme Court’s dim view of parents who would lie to the family court. To wit:
We are mindful that families often do not get along, even under the best of circumstances. In the course of such struggles, family members are not always honest with each other. Ordinarily, deceptive behavior within families is beyond the power of the court to address. Deceptive behavior must end, however, when family members bring their disputes into the court system. Tammie’s repeated representations to the family court—and in turn to this Court—that she welcomes visitation, when in fact she refuses it, is unacceptable.
We agree with the family court that Tammie “has unreasonably denied the grandparents opportunity to visit with the minor children by failing to allow communications through the house phone or her cell phone.” We find her intentional, deceptive, and now contemptuous behavior—designed to appear accommodating and cooperative while calculated to prevent the visitation she claims to accept—is an intentional effort to keep the court from fulfilling its responsibility under subsection 63-3-530(A)(33) and the Due Process Clause.
Our concern over Tammie’s behavior goes beyond the fact she intentionally deceived the court. Her behavior has directly and adversely affected the welfare of the children. She damaged the children’s previously positive and loving relationship with their grandparents. More significantly, Tammie’s deliberate attempt to remove the family court from its proper role as arbiter of this dispute, combined with her own refusal to communicate with the grandparents, put the children in the unwelcome role of peacemakers between their grandparents and their mother. This has been particularly true with the eldest daughter. In one instance, for example, she sent a text message to her grandfather essentially asking him not to push visitation because she was afraid it would upset her mother. She texted, “Please stop. . . .You’re breaking a part of — a part of my family. I love you, but you’re hurting my mom so much, and she needs — means everything to me.” As the family court found in the September 2018 contempt order, Tammie’s refusal to comply with the November 2017 order “is exacerbating the situation.”
Tammie’s use of deception to keep the family court from fulfilling its duty to manage this dispute, and her continued refusal to comply with the November 2017 order, places her daughters in the completely inappropriate role of mediating the dispute between her grandparents and her mother. No child should ever be placed in such a position.
We find Tammie’s intentional, deceptive, and contemptuous behavior—that not only cut off the relationship between the grandparents and the children, but also made them proxies for communication between Tammie and the grandparents—is a compelling circumstance that justifies the State to intervene, and to order that Tammie permit the grandparents to have visitation with the children.
A large part of any family law attorney’s practice is, unfortunately, talking parents out of behaviors that undermine the relationships between their children and other loving family members, and developing and highlighting evidence that the opposing party is engaging in such behaviors. This behavior has certainly gotten the attention of our Supreme Court–hence Tammie’s smackdown–and one would expect the family court judges to take notice. Deceptive behavior in family court cases should no longer be tolerated. Now on to the actual analysis of the legal issues.
Bazen involved a constitutional challenge to the latest version South Carolina’s grandparent visitation statute, S.C. Code § 63-3-530(A)(33). Initially Mother and Paternal Grandparents (Grandparents) had a cooperative relationship–Mother even bringing the children to visit Grandparents at times when she and the father were estranged. Eventually however Mother also became estranged from Grandparents. When their son died she tried to limit their contact, going so far as to tell telling the children on Grandparents’ presence shortly after their son’s funeral, “Y’all won’t see Pawpaw [Laverne] any more.” One day Grandparents showed up a Mother’s house unannounced and she admonished them for doing so and told them, “you need to call before you come.” When they would attempt to call she would not answer. Eventually Grandparents filed for visitation.
At trial the family court awarded Grandparents visitation, including some overnight weekend visitation and one week during the summer. Mother appealed and raised a constitutional challenge to the grandparent visitation statute in her appeal. In addressing the constitutional challenge the Supreme Court analyzed the three factors the United States Supreme Court laid out regarding grandparent visitation statues in its Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49, 56-57 (2000), decision: (1) there must exist a presumption that a fit parent will act in the best interest of his or her child, (2) the decision of a fit parent concerning grandparent visitation is entitled deference, and (3) the impact to the parent-child relationship should be considered.
It found South Carolina’s grandparent visitation statute met those criteria. First, subsection 63-3-530(A)(33)(2)(b) specifically recognizes a “presumption that the parental decision is in the child’s best interest.” Second, the Supreme Court noted that it had repeatedly interpreted subsection 63-3-530(A)(33) to require that the decision of the parent—protected by Due Process—be given substantial deference. Third, subsection 63-3-530(A)(33)(2) specifically requires the family court to find “grandparent visitation would not interfere with the parent-child relationship.”
Finally it rejected Mother’s argument that the requirement of “compelling circumstances” to authorize grandparent visitation was unconstitutionally undefined. It found Father’s death satisfied the first element of the grandparent visitation statute, “at least one parent must be deceased, or the parents must be divorced or ‘living separate and apart in different habitats.’” § 63-3-530(A)(33). It found Mother’s behavior satisfied the second element, “the parent has unreasonably deprived the grandparent of the opportunity to visit with the child for more than ninety days.” § 63-3-530(A)(33)(1):
Tammie has consistently refused to permit the grandparents to visit with the children. Laverne and Pansy both testified they attempted to call and visit on numerous occasions. Tammie conceded this in her testimony. However, Tammie repeatedly refused to accept or return their calls when they tried to schedule a visit. On several occasions, they called and asked one of the children to check with Tammie for permission to visit, but Tammie never responded. Even at trial Tammie resisted allowing visitation. When asked whether she would be willing to provide the grandparents with a calendar of school and extracurricular functions so the grandparents could attend, Tammie repeatedly stated they could find that information on “the website.”
The Supreme Court further found this depravation was unreasonable. While acknowledging that the burden of proving unreasonableness falls to grandparents, it noted Mother acknowledged the children loved their Grandparents, that she often needed care providers for the children that the Grandparents could satisfy, and that there was no legitimate reason to deprive the Grandparents of contact. An important part of this Supreme Court ruling is that, “[a]nimosity against the grandparents is not a valid reason to deny them visitation.”
In analyzing the third element of the statute, “the grandparent visitation will not interfere with the parent’s relationship with the child,” § 63-3-530(A)(33)(2), the Supreme Court noted:
[T]here is no evidence anywhere in this record that grandparent visitation will interfere with Tammie’s relationship with her children. Nor has Tammie argued that it might. In fact, the only indication in this record is that a healthy relationship between the children and their paternal grandparents will be good for the children and will not interfere with Tammie’s relationship with her children.
In analyzing the final element, “the family court finds by clear and convincing evidence that the parents are unfit, or ‘there are compelling circumstances to overcome the presumption that the parental decision is in the child’s best interest,’” § 63-3-530(A)(33)(2)(a), (b), the Supreme Court noted that Mother was fit and thus Grandparents needed to show compelling circumstances. It held their son’s death was evidence of compelling circumstances but insufficient, by itself, to establish compelling circumstances. It further held that, “a family court may not overrule a fit parent’s decision and impose grandparent visitation based on its own view of the child’s best interests, or its own conception of what is a compelling circumstance.” It found the family court erred in doing so. However it found compelling circumstances based on Mother’s duplicitous behavior, quoted at length at the beginning of this blog, which unreasonably deprived her children and the Grandparents of the ability to develop a relationship and placed her children in an middle of the dispute.
Despite rejecting Mother’s constitutional challenges to the grandparent visitation statute, the Supreme Court still held that the family court awarded Grandparents too much visitation. It held:
[G]randparent visitation is not the same situation as when the court awards reasonable visitation to a noncustodial parent. Family courts do not defer to the preferences of a custodial parent in deciding visitation for a noncustodial parent. For grandparent visitation, however, courts must give deference to the judgment of the parent. Just as a court must defer to a parent’s decision on the fact of grandparent visitation, a court must also defer to reasonable limitations or conditions a fit parent chooses to impose on grandparent visitation.
The Supreme Court noted that the Grandparents had only had two overnight visitations without a parent being present and they had never had a parent-like relationship with the grandchildren. It noted Mother’s concern that the children’s active extracurricular schedule would be impacted by overnight visitation with grandparents who did not live near them. It therefore overruled the family court’s award of overnight visitation (the family court had awarded Grandparents eight weekends, a three-day period at Christmas, and one week at summer). However it noted that if Mother did not encourage and ultimately allow some overnight visitation the Grandparents could petition the family court for more visitation. Justice Kittridge, in partial dissent, would have authorized overnight visitation immediately.
I was an early critic of South Carolina’s first grandparent visitation statute, believing it to be overly broad. I believed the second version was unduly narrow, and it’s latest version struck a proper balance between a fit parent’s right to determine who their children have relationships with and the state’s interest in allowing children to have relationships with their grandparent when their parents are no longer together. The Bazen decision affirms the constitutionality of this latest version. In doing so, it establishes a few important points for future grandparent visitation cases (and, on the first point, all custody cases):
1) Duplicitous behavior by parents in custody disputes is not to be tolerated.
2) Death of a parent, while a factor in the “compelling circumstances” requirement for grandparent visitation is not sufficient by itself to create compelling circumstances.
3) Grandparents have the burden of proving an unreasonable depravation of visitation.
4) A parent’s animosity is not a reasonable basis to deny grandparents visitation.
5) The family court cannot merely override a fit parent’s decision and substitute its own judgment on a child’s best interests and “compelling circumstances.”
6) Unlike visitation for a parent, the family court must defer to and consider a fit parent’s views in awarding grandparent visitation.
While the Court said it was upset with Mother’s behavior, I certainly wouldn’t call the result a smackdown. In fact even while Justice Few expressed his contempt for what she did, I felt they rewarded her – they drastically reduced the grandparents’ visitation from what the lower court had awarded, and gave Mom one more chance to avoid the 4 month contempt sentence. I don’t disagree with the result except for its appearing to reward Mom’s behavior.
I would consider it a smack down. I believe the Supreme Court is telling us that extremely liberal visitation for grandparents who did not have a “parent like“ relationship with the grandchildren is not appropriate. Still the Supreme Court clearly had problems with the mother’s behavior.
Had mother genuinely offered the grandparents visitation I believe the Supreme Court would’ve simply reversed.