What About the Rights of the Grandparents?

Posted by Leslie SarjiAug 17, 20140 Comments

When a family is torn apart by a divorce , there will likely be a fight between the parents over who has primary custody of the children. Generally, one parent will become the custodial parent, meaning the child will primarily live with that parent, and the other parent will become the non-custodial parent. Non-custodial parents are granted visitation rights in order to spend time with their child or children.

What About the Rights of the Grandparents?

Regardless of the divorce, grandparents often want to see and visit with their grandchildren. Grandparent rights are an extension of their divorced child's visitation rights. This means that grandparents may visit with their grandchildren at periods of time during which their divorced child has visitation.

What if the Custodial Parent Objects to the Non-custodial Grandparents' Request to Visit?

Although it seems sad that one parent would want to prevent the other parent's grandparents from being able to visit with the children, it is an objection that is brought before the family court quite often. South Carolina case law has made it clear that the courts will not generally interfere with the rights of a custodial parent who is fit to care for the children. However, in situations where the parent is deemed to be unfit, or if other compelling circumstances exist, custody and/or visitation rights can be awarded by the court to the grandparents.

De Facto Custodians

Grandparents can seek custody of their grandchildren in certain situations. For instance, grandparents can be deemed by the Family Court to be de facto custodians of the child if they can demonstrate by clear and convincing evidence that they have served as the primary caregiver for the child for an extended period of time, prior to seeking custody of the child. The amount of time requirement is based on the age of the child.

For children who are under three years old, the grandparents must show that the child resided with them for half a year. For children who are three years old or older, the grandparents must show that the child lived with them for more than a year. The court will award custody of the children to the grandparents if it is further found by the court that the children's parents are unfit or if other compelling circumstances exist that make it in the best interest of the child if the grandparents are award custody.

When De Facto Custodian Evidence Falls Short

Even if the grandparents cannot successfully establish de facto custodian status, the grandparents may still be awarded visitation rights to the child or children. However, the court only awards such visitation rights in limited circumstances. In order for grandparents to be awarded visitation over a parent's objection, there are certain criteria that must be met:

  1. Visitation rights will only be awarded to grandparents who are the natural or adoptive parents of the child's parent.
  2. The parents of the child must be dead, divorced or living separately from one another.
  3. For a period of three months or more, the parent denying the other's grandparents visitation must be unreasonably depriving the grandparents of the opportunity to visit with their grandchildren.
  4. The child and the grandparents must share a parent-child-like bond with one another.
  5. The grandparents must show that either the parent making the denial is unfit, or that there is a compelling reason to go against the parent's objection to permitting the grandparents to visit with the grandchild.

Contacting a Charleston Family Law Attorney

If you are interested in obtaining custody of your grandchild or simply would like visitation rights with your grandchild, please contact the family law attorneys at Sarji Law Firm, LLC. Our child custody attorneys can assist you with your fight to see your grandchildren. Call us today at 843-323-4341.

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