Grandparent Custody South Carolina
Grandparent custody in South Carolina is not what a grandparent might expect. When a parent prevents grandparents from visiting their grandchildren, whether they have custody following a divorce or the death of their spouse or a child’s parent punishes their own parents by restricting access to their grandchildren, remedies are difficult to obtain under South Carolina law. Difficult does not mean impossible.
Grandparent Custody SC – Due Process Clause
Under South Carolina law, The Due Process Clause of the State Constitution affords even mediocre parents who make grievous, but not illegal, parenting mistakes autonomy over their parenting choices unless it can be proved to the court that their choices are harming the children. If children are being negatively affected by lack of contact the court may order visitation under certain circumstances. If the situation in the home is dangerous to the children it becomes a custody matter rather than a visitation issue.
The best time to assert grandparent custody claim to get visitation of grandchildren is during a divorce—not afterward.
Grandparent Visitation of Grandchildren SC
Under South Carolina section §63-3-530 the family court may 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:
- 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
- Awarding grandparent visitation would not interfere with the parent-child relationship; and:
- The court finds by clear and convincing evidence that the child’s parents or guardians are unfit; or
- 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.
A “grandparent” can refer to the natural or adoptive parent of a natural or adoptive parent of a minor child.
Grandparent Legal Custody
Grandparents who have been acting as the primary caregiver to a grandchild can seek legal custody of the child. In order to do so, the grandparent must have evidence that they have provided both financial support and been the primary caregiver to the child for a minimum amount of time. Custody, with all rights of guardianship, as described in Section 21-21-55 can be awarded to the grandparents who document that they have been the primary caregiver for:
- Six months for children under age 3
- One year for children over age 3
In order to be awarded custody, the parents must be proven unfit, which is not an easy task. It is easier to get visitation. There may be other compelling circumstances that would allow custody to be granted. Evidence of financial support and primary caregiving duties can be documented in a variety of ways including:
- Photographs, especially date-stamped photographs.
- Receipts, bank statements, and other evidence of financial support.
- Documentation of travel schedules and expenses if the grandchildren do not reside near the grandchildren.
- Evidence of attendance at school events and meetings.
- Documentation of food, clothing, and toys purchased for the grandchildren.
- Documentation of medical and dental expenses paid and insurance premiums paid on behalf of grandchildren.
- Copies of electronic communications via email, text, and social media between grandchildren and grandparents.
- Cards and letters (if the card or letter was sent to the grandchild, retain a copy).
- Phone bills that show evidence of phone calls between grandchildren and grandparents.
Parents who engage in the following activities may be considered unfit parents:
- Addicted to drugs
- Addicted to alcohol
- Abuse the children
- Neglect the children
- Make consistently bad decisions on a regular basis
- Make decisions that put the safety of the child in jeopardy
If the Department of Social Services (DSS) is involved, grandparents can petition the court to be granted temporary physical custody pending the final determination of whether the parents are fit.
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