Those who are Worthy: Grandparents and Third Parties Seeking Visitation and Custody

[T]he interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court – The United States Supreme Court

For good reason, the Highest Court of the United States recognizes that parents have a special interest in the care, custody, and control of their children.  However, parents can create situations where a relative, such as a grandparent, or a third party finds themselves seeking custody of a minor child.

Grandparents, especially, may find themselves seeking custody of their grandchild.  And, because the United States Supreme Court gives parents a protected liberty interest in the care, custody, and control of their children, grandparents seeking legal custody of a grandchild find themselves facing a tough legal road to gaining custody.

In South Carolina, grandparents seeking Court-ordered visitation, as opposed to custody, find help from the South Carolina Legislature, which statutorily created visitation rights specifically for grandparents.  If the statutory elements for grandparent visitation can be established, a court may grant visitation rights to grandparents.

Grandparents’ Visitation Rights

Section 63-3-530(33) of the South Carolina Code of Laws (2010) gives a Family Court the ability to order visitation for the grandparent, which is defined as the natural or adoptive parent of any parent to 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:

  1. 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
  2. the grandparent maintained a relationship similar to a parent-child relationship with the minor child; and
  3. that awarding grandparent visitation would not interfere with the parent-child relationship; and:
    1. the court finds by clear and convincing evidence that the child’s parents or guardians are unfitor
    2. 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.

Visitation differs from Custody

Grandparents seeking custody of their grandchild will not find a South Carolina statute specifically addressing grandparentcustody rights.  In other words, statutorily, there is no specific statute outlining how a grandparent may obtain custody of a grandchild.  However, grandparents and third parties alike may use routes such as the statutorily defined de facto custodian and the case law-defined psychological parent status to seek custody of a minor child.

Even if de facto custodian or psychological parent status can be established, the Courts are careful to grant custody of a minor child to a grandparent or third party only under very limited circumstances.  Additionally, the United States Supreme Court’s ruling in Troxel v. Granville may present further hurdles for a grandparent or third party seeking custody or visitation under de facto custodian or psychological parent status.

De Facto Custodian

Where a grandparent or third party establishes by clear and convincing evidence that he/she is a de facto custodian, then he/she has standing to seek custody or visitation.  Section 63-15-60 of the South Carolina Code of Laws (2008) defines a de facto custodian as a person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who:

  1. has resided with the person for a period of six months or more if the child is under three years of age; or
  2. has resided with the person for a period of one year or more if the child is three years of age or older.

The statute goes on to point out, importantly, that any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child will not be included in determining whether the child has resided with the person for the required minimum period outlined in subparagraphs (1) and (2) above.

Once a grandparent or third party establishes de facto custodian status, the Family Court may grant custody or visitation IF it finds by clear and convincing evidence that:

  1. the child’s natural parents are unfit; OR
  2. other compelling circumstances exist.

It is important to note that if the child(ren) at issue is in the custody of the Department of Social Services (DSS), the custody and visitation of that child(ren) is addressed according to the statutes governing DSS cases and a person may not seek to establish de facto custodian standing.

Psychological Parent Doctrine

In Middleton v. Johnson, the South Carolina Court of Appeals adopted a four-prong test as a good framework for determining whether a psychological parent-child relationship exists and that the test would ensure that a nonparent’s eligibility for psychological parent status will be strictly limited.

The four-prong test states that, in order to demonstrate the existence of a psychological parent-child relationship, the petitioner must show:

  1. that the biological or adoptive parent[s] consented to, and fostered, the petitioners formation and establishment of a parent-like relationship with the child;
  2. that the petitioner and the child lived together in the same household;
  3. that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; [and]
  4. that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

The South Carolina Court of Appeals discussed each prong of the test:

Regarding the first prong, the court noted the first factor is critical because it makes the biological or adoptive parent a participant in the creation of the psychological parent’s relationship with the child. This factor recognizes that when a legal parent invites a third party into a child’s life, and that invitation alters a child’s life by essentially providing him with another parent, the legal parent’s rights to unilaterally sever that relationship are necessarily reduced.  Regarding the second prong, the court stated the requirement that the psychological parent and the child have lived together further protects the legal parent by restricting the class of third parties seeking parental rights.  The court stated that the last two prongs are the most important because they ensure both that the psychological parent assumed the responsibilities of parenthood and that there exists a parent-child bond between the psychological parent and child. The psychological parent must undertake the obligations of parenthood by being affirmatively involved in the child’s life. The psychological parent must assume caretaking duties and provide emotional support for the child. The Court of Appeals stated that these duties, however, must be done for reasons other than financial gain, which guarantees that a paid babysitter or nanny cannot qualify for psychological parent status. The court further noted that when both biological parents are involved in the child’s life, a third party’s relationship with the child could never rise to the level of a psychological parent, as there is no parental void in the child’s life.

As the South Carolina Court of Appeals noted, “the test will limit the persons who may seek to be considered a psychological parent, but it will assist those who are worthy to be called such”.

Those who are Worthy

The South Carolina Court of Appeals put it best when it stated that a test such as the psychological parent test “will assist those who are worthy to be called such”.  If you find yourself in a position where you feel you are worthy of seeking custody or visitation of a minor child, keep in mind that you face difficult case law-defined tests, statutory elements, and legal standards.  However, also know that if you feel you are worthy of seeking custody or visitation of a minor child, there are legal options.