Court of Appeals reverses grant of visitation to grandparents

Posted Friday, February 21st, 2025 by Gregory Forman
Filed under Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific, Visitation

The February 12, 2025, Court of Appeals opinion in Dendy v. Gamble reversed a family court’s award of visitation to Grandparents. This opinion exposes the limitations of non-parents attempting to get visitation through South Carolina’s de facto custody and grandparent visitation statutes or as psychological parents.

Dendy addressed visitation with B.G., who was born in 2010 in Louisiana.  Shortly after B.G.’s birth, her Maternal Grandmother brought her to South Carolina pursuant to a Louisiana social services safety plan.  The expectation was that Grandparents would seek legal custody of B.G. but they never did.

B.G. lived with Grandparents until 2015. Due to Grandparents needing to care for Grandmother’s own mother, they transferred physical custody of B.G. to mother’s sister (Aunt) and her then boyfriend.  In 2016, with Mother’s consent, Aunt and Uncle sought legal and physical custody of B.G., which they obtained in 2017.  Grandparents were not made parties to this case and claimed they had no knowledge of it.

Until 2019, Grandparents regularly visited with B.G.  But after an argument between Aunt and Grandmother about B.G.’s haircut, Aunt and Uncle cut Grandparents out of B.G.’s life completely.  In 2020, after not seeing B.G. for over a year, Grandparents filed an action for custody or, in the alternative, for visitation.

Trial took place in Spring 2023. By the time of trial, B.G. had not seen Grandparents in four years and expressed to the guardian ad litem that she did not wish to visit them.  The trial judge found it was in the best interests of the minor child to keep custody with Aunt and Uncle but awarded Grandparents regular visitation and awarded them some attorney’s fees.  Aunt and Uncle appealed.

The Court of Appeals found numerous errors in the family court’s analysis.  The Court of Appeals first held that the family court erred in finding Aunt and Uncle have “no priority in this matter” under the 2017 final order giving them custody.  The Court of Appeals noted this error resulted in the family court treating the present case as a dispute between non-parent third parties, thus depriving Aunt and Uncle of the presumption afforded to parents and legal guardians that their decisions are in the child’s best interest. In reaching this decision the Court of Appeals, noted the 2017 final order granted Aunt and Uncle “other rights,” which it held includes the right to make decisions about visitation.

The opinion cites Camburn v. Smith, 355 S.C. 574, 579, 586 S.E.2d 565, 567 (2003) for the proposition that “[a] court considering third party visitation over a parent’s objection must allow a presumption that a fit parent’s decision is in the child’s best interest.” However, the Camburn analysis specifically considered the rights of parents. Parents have a liberty interest under the 14^th Amendment of the United States Constitution.  I don’t believe the liberty interest analysis applies to non-parent custodians.

By finding Aunt and Uncle were due this legal presumption, the Court of Appeals held they “are entitled to the presumption that their decisions are in B.G.’s best interest, which may be overcome only by showing compelling circumstances, such as significant harm to the child, if visitation is not granted.”

The Court of Appeals next addressed the application of South Carolina’s De Facto Custodian statute. S.C. Code Ann. § 63-15-60. While the family court found Grandparents were de facto custodians, based on raising B.G. the first five years of her life, the Court of Appeals disagreed, noting “[t]he question turns on whether the legislature intended for the de facto custodian statute to apply to custodians from any point in a child’s life or only to recent custodians.” While declining to create a bright-line test, the Court of Appeals held that waiting until five years had passed since B.G. had lived with them was too long:

At that point, Grandparents were clearly no longer discharging the duties of a parental relationship. Further, the record before us does not contain any compelling circumstances that would warrant an award of visitation to Grandparents. Thus, the family court erred in finding Grandparents were de facto custodians.

In a footnote, the Court of Appeals also noted that finding a party is a de facto custodian does not end the visitation analysis:

[W]e take this opportunity to note that meeting the statutory definition of de facto custodian does not automatically warrant custody or visitation—the family court still has the discretion to grant visitation or custody but only if clear and convincing evidence shows that a child’s natural parents are unfit or that other compelling circumstances exist.

The Court of Appeals next addressed Grandparents’ psychological parent claim. It noted, a psychological parent-child relationship exists when a third party steps in to fill a parental void. It reversed the family court’s determination that Grandparents were B.G.’s psychological parents, holding:

Here, the family court determined that Grandparents were B.G.’s psychological parents. This determination was incorrect. While we acknowledge that Grandparents may have been B.G.’s psychological parents at one point, this status lapsed when B.G. moved in with Aunt and Uncle. Once Grandparents took on a traditional grandparent role, they could no longer claim to be B.G.’s psychological parents. Further, with Aunt and Uncle assuming parental roles, no “parental void” needed to be filled by Grandparents. Additionally, because Mother agreed to grant Aunt and Uncle legal custody in 2016—an agreement that did not terminate her parental rights—we do not find that Mother continued to consent to and foster a parent-like relationship between B.G. and Grandparents. Moreover, once Aunt and Uncle became legal custodians, they certainly did not foster a parent-like relationship between B.G. and Grandparents. For this reason, the family court erred in finding Grandparents were B.G.’s psychological parents.

In a footnote, the Court of Appeals took additional issue with the family court’s psychological parent analysis, noting merely finding a psychological parent relationship exists is insufficient to award custody or visitation:

In a dispute between mere third parties, psychological-parent status may be sufficient to justify a custody award. But in a dispute between a biological parent and a third party, psychological-parent status is not sufficient on its own to warrant custody or visitation—there must be other compelling circumstances. Aunt and Uncle, under the custody agreement, gained the superior rights of natural parents concerning visitation. Thus, even if Grandparents were properly determined to be B.G.’s psychological parents, visitation would only be warranted if compelling circumstances existed to overcome the presumption that Aunt and Uncle’s decision to deny visitation was made in B.G.’s best interest.

Citations omitted.

The Court of Appeals finally addressed the grandparent visitation statute, S.C. Code § 63-15-530(A)(33). The family court did not find that statute applied because it treated the case as a dispute between mere third parties and found Grandparents were de facto custodians and psychological parents.

The Court of Appeals found the family court erred in finding the grandparent visitation statute did not apply, noting the case presented the child’s biological grandparents seeking visitation over the objection of fit, legal custodians. It found most elements of that statute were met: B.G.’s parents lived separately, B.G.’s guardians had denied Grandparents the opportunity to visit for a period exceeding ninety days, and awarding grandparent visitation would not interfere with the parent-child relationship between Aunt and Uncle and B.G.

However, it found there was not clear and convincing evidence of compelling circumstances that justify ordering visitation over Aunt and Uncle’s objection. The Court was troubled by the scant evidence of a legitimate reason for Aunt and Uncle’s decision to cut Grandparents out of B.G.’s life. However,it held there was no evidence that Aunt’s refusal to allow Grandparents to visit B.G. had caused B.G. significant harm. Further, B.G. expressed to the guardian ad litem that she had no desire to visit her grandparents. Thus, the Court of Appeals declined to award Grandparents visitation pursuant to the grandparent visitation statute.

Because the Court of Appeals reversed the award of visitation to Grandparents it also reversed the award of attorney’s fees.

While not disputing the result in Dendy, I do question some of the reasoning the Court of Appeals used.  I do not believe the Camburn analysis applies to custodians who are not legal or biological parents. While I agree the passage of time may lessen a party’s ability to obtain visitation under a theory of de facto custodian or psychological parent, I don’t see time limits in the de facto custodian statue and such rule setting is the province of the supreme court.  Perhaps it would have been better for the Court of Appeals to give the passage of time more focus on the best interests analysis.

If the Supreme Court grants certiorari on this case, I would anticipate it sustaining the Court of Appeals—family courts are still too generous in awarding grandparent visitation—but I would not be surprised if it disapproved of this court’s analysis.