In the area of child custody and parental rights, there is sometimes a lesser-talked about legal battle for grandparents seeking the privilege to care for or visit their grandchildren. The constitutional hardline is that parents possess a protected right in the care, custody, and control of their children. It is a fundamental right protected under the Due Process Clause of the United States Constitution. However, this very right is subject to augmentation where the parent is unfit to care for his or her children. Where parental fitness is tested, other parties then have the right to make a claim to the court for custodial rights. In other instances, a third party may petition the court for visitation rights where parental rights are still intact.
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Full custodial rights given to a third party is a rarity if both or one parent is alive and fit to care of the child. However, there are some instances where grandparents are given parental rights over their grandchild or grandchildren. In South Carolina, a grandparent is permitted to qualify as the de facto parent only in a few circumstances. A de facto custodian is the individual in the child’s life who has shown to be the primary caregiver and financial supporter of the child. The person seeking de facto parental recognition must prove their position in the child’s life by clear and convincing evidence among other factors.
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There are a few instances where a court will grant visitation rights to a third party over the parents’ objections. One instance is where the court determines harm will be done to the child if visitation is not allowed. Another instance is where a parent dies and the grandparents become an extension of the deceased parents. Pursuant to S.C. Code Ann. § 63-15-240, a judge may grant visitation rights to a grandparent when the visitation would be in the best interest of the child. It is important to note that the analysis will not favor what merely benefits the child, but also what will avoid harming the child. Secondly, under South Carolina law, and in an instance where a parent is deceased, a court can make a determination to award grandparent visitation. The court has to determine (1) whether the child will be deprived of the relationship, (2) whether a parent-child relationship was maintained, and (3) whether awarding visitation will interfere with the actual parent-child relationship.
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If you need assistance with your family law case contact the Minor Law Offices today. We provide passionate, knowledgeable, and honest legal assistance with a client-focused and result-driven approach. If you are seeking custody or visitation of your grandchildren, call us now. We are happy to provide you with the peace of mind in knowing that your family will be protected.
The information contained in this post is provided for informational purposes only, and should not be construed as legal advice on any matter.
Donae A. Minor is a Carolinas Attorney serving both North Carolina and South Carolina. Attorney Minor practices Family Law emphasizing on Child-Custody, Men’s Rights and Grandparent/Non-Parent Custody Actions, and Business Law focusing on Small Business matters. Attorney Minor also provides legal assistance with Personal Injury matters and Appeals. Prior to starting Minor Law Offices, Attorney Minor worked in Corporate America in the Financial and Healthcare industries and obtained a MBA degree from Pfeiffer University.