The dissolution of a marriage or a parental relationship can traumatize more than just the parents and the children; grandparents stand to suffer a substantial loss of quality time with their grandchildren that they may have once enjoyed. Charleston Family Court lawyers are frequently faced with distraught grandparents looking to recover the close relationship they had and lost with their their grandchildren. The law in South Carolina is very specific on the topic, and quite frequently not what the grandparents want to hear.

Under normal circumstances, our courts will not interfere with a fit parent’s decision to deny visitation to grandparents.

The law presumes that fit parents can and will make decisions that are in their children’s best interests, and unless some significant harm would be caused to the children by denying them time with their grandparents, our courts will not interfere with those decisions.

Grandparents would normally need to have compelling evidence either that the parent denying visitation is not fit (i.e., is incapable in some fashion of adequately caring for their children), or that the children would suffer some real and significant harm as a result of the loss of their relationship with their grandparents (not just the loss of the benefit of a positive and healthy family relationship).

What can constitute “significant harm” to the grandchildren, justifying an award of visitation?

Existing case law provides Charleston Family Court lawyers with little guidance on the exact circumstances that would qualify as significant harm, but in at least one case, our courts have made clear that the death of a parent would suffice to justify the preservation of ties to that parent’s family. Even then, the grandparent visitation must be tailored in such a fashion so as to not unduly interfere with the children’s ongoing relationship with the surviving parent.

Anecdotally, this firm has procured visitation for maternal grandparents in a case where the mother was habitually absent from the lives of the children as a result of her heavy drug abuse issues. The argument in that case was that such absence was tantamount to the death of that parent, but the case was not appealed, so our appellate courts were not given an opportunity to weigh in on that decision.

In the absence of an unfit parent or significant harm, what is left for grandparents who want to visit with their grandchildren?

Our courts have routinely held that the right of grandparents to visit with their grandchildren is subservient to the right of their child/parent to visit with the child. If a father is granted visitation with his children every other weekend, he is free to share that time with his own parents. If that same father is denied visitation with his children, then the grandparents will likely be out of luck. If that father has his parental rights terminated, the grandparents will likewise lose their rights to their grandchildren. Such situations can be frustrating and sad indeed.

A grandparent may also argue that he or she should have visitation with their grandchildren under the doctrine of “psychological parenthood.” A psychological parent may garner visitation even over the objection of a fit parent if he or she can show (paraphrasing): a) that the biological parent fostered a parent-like relationship between grandparent and child; b) that the grandparent and child lived together in the same household; c) that the grandparent acted as a parent in assuming a large role in the child’s upbringing, both in development and financially, without recompense; and d) that the grandparent acted in this parental role or a sufficient time to have created a bonded, parental relationship.

Are there additional alternatives?

Any grandparent seeking visitation with a grandchild should consult with an experienced Charleston Family Court lawyer immediately. As stated above, this firm was able to get visitation rights in a particular case under circumstances that may not have fit the legal guidelines for such rights precisely. Charleston Family Court lawyers with experience in this field will possess the required skill and negotiation strategies to gain you the visitation you desire, even under less than perfect circumstances. If you are willing to fight for your grandchildren, our Charleston Family Court lawyers will be willing to fight for you.

Helpful reading:

Troxel v. Granville, 30 U.S. 57 (2000)
Camburn v. Smith, 355 S.C. 574 (2003)
Latimer v. Farmer, 360 S.C. 375 (2004)
Marquez v. Caudill, 376 S.C. 229 (2008)
Brown v. Earnhardt,302 S.C. 374 (1990)
Middleton v. Johnson, 368 S.C. 581 (Ct.App. 2006)

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J. Michael DeTreville

Charleston Divorce Attorney at DeTreville Law & Mediation, LLC

J. Michael DeTreville is a licensed attorney practicing in Charleston, SC. His primary focus is on Family Court matters (separation, divorce, child custody and support, alimony and property division). He also represents Charlestonians who have been charged with a crime or injured by the negligence of others. Please call him at 843-571-0537 if he may be of assistance to you in any of these areas.

J. Michael DeTreville

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