In this day and age when many grandparents are the virtual parents of their grandchildren, it's important for grandparents to understand their legal rights to custody and visitation. The first thing to know is that laws across most states (custody and visitation are primarily under state law) give very little recognition to grandparent rights. It would surprise most to know that most courts presume a parent's decision to alienate grandparents from grandchildren is made in the best interest of the children. Some states, like South Carolina, are beginning to offer some rights, and nationwide the grandparent rights movement is making headway with state legislatures to give more rights to grandparents. As I am licensed in South Carolina, I am only going to write about custody/visitation in South Carolina. However, know that the states are quite similar with regards to grandparents.
In 2014, the South Carolina passed a law granting rights for grandparents to seek visitation in South Carolina courts under certain circumstances.
On June 9, 2014 the SC Governor signed House bill 4348 amending S.C. Code § 63-3-530 (A)(33), (grandparent visitation statute).
Subsection 33 now authorizes:
to 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:
(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) awarding grandparent visitation would not interfere with the parent-child relationship; and:
(a) the court finds by clear and convincing evidence that the child’s parents or guardians are unfit; or
(b) 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.
For purposes of this item, “grandparent” means the natural or adoptive parent of a natural or adoptive parent of a minor child.
The 2014 statute offers more rights for grandparents to seek court-ordered visitation. When one or both parents are deceased, or the parents are divorced or not cohabiting, grandparents can seek visitation if visitation if being unreasonably denied (unreasonable being at least one visit every 90 days). This must not interfere with the parent-child relationship. Critically, either the parents or guardians must be considered unfit, OR grandparents can show compelling circumstances to overcome the presumption that the parental decision to deny such visitation is in the child’s best interests.
In addition to the grandparent rights statute, grandparents may have other grounds to seek visitation and even custody of grandchildren. The legal theories of de facto custodian, or psychological parent may be grounds a grandparent can pursue. This legal standing is not necessarily predicated upon the status of being a grandparent, and non-grandparents can seek these grounds for custody and/or visitation. However, in many cases, the grandparent may meet the elements necessary for standing. For example, raising the grandchild for six months prior to one year old, or for a year after the child is one year old (with parent(s) consenting) can meet elements necessary for standing.
The key is to ask your respective attorney about all three means to have standing for visitation and/or custody. Ensure that if you have elements allowing for de facto custodian and/or psychological parent you plead such in addition to the grandparent's visitation statute. Sometimes, showing you are willing to fight for what's right for the children will bring people to the table to offer an agreement to custody and/or visitation.