The Current Status of Grandparent Visitation
Do grandparents have the right to visit their grandchildren or not? Sounds like an easy question, but the answer is becoming somewhat less clear. They did, but now they don't (probably), but they might again. A little history is in order to better understand this complex issue...
In summer of 2000, the U.S. Supreme Court issued the landmark decision, Troxel v. Granville, which declared Washington state's grandparent visitation law unconstitutional. In a 6-3 decision, the Court held that the Washington Statute violated the right of parents, under the Due Process Clause of the Constitution's Fourteenth Amendment, to make decisions concerning the care, custody, and control of their children. Justice Sandra Day O'Connor wrote for the Court that the "liberty interest at issue in this case -- the 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."
Under the Troxel case, the court must give "special weight" to a fit parent's decision regarding visitation. A court considering grandparents' visitation over a parent's objection must allow a presumption that a fit parent's decision is in the child's best interest. So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.
South Carolina Code § 20-7-420(33) provided that the Family Court could order periods of visitation for the grandparents 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 regardless of the existence of a court order or agreement, and upon a written finding that the visitation rights would be in the best interests of the child and would not interfere with the parent/child relationship. However, this statute is very similar to Washington's statute which was determined to be unconstitutional in the Troxel case.
The S.C. Supreme Court addressed this tension in a 2003 case, Camburn v. Smith, 355 S.C. 574, in which Acting Chief Justice James E. Moore wrote that "parents and grandparents are not on an equal
footing in a contest over visitation. Before visitation may be awarded over a parent's objection, one of two evidentiary hurdles must be met: the parent must
be shown to be unfit by clear and convincing evidence, or there must be evidence of compelling circumstances to overcome the presumption that the parental decision is in the child's best interest."
After these decisions, most people thought that the time for grandparents' visitation had passed due to the high burden of proof now required. Since the Troxel case was decided, states have examined the constitutionality of their non-parent visitation statutes. Richard Victor, founder and executive director of the Grandparents Rights Organization, says his organization "has been working diligently for 4 1/2 years to overturn the media misperception of Troxel that said grandparents have no rights. Since the Troxel decision in 2000, 47 states have affirmed and supported their grandparent visitation statutes and have made them constitutional."
Washburn University law professor Linda Elrod, the editor of the Family Law Quarterly for the ABA's Family Law Section, claims that most courts have imposed four different requirements to find non-parental visitation laws valid in the wake of Troxel:
- They limit the number of people who can seek relief.
- They give deference to parents' wishes.
- They require the grandparents to show they have a relationship with the child.
- They use the standard of what is in the child's best interest.
Professor Elrod says the fourth factor is where some states differ. "Probably a majority of states say the best interest of the child" standard applies, whereas a "few states feel that the Constitution requires them to say the grandparents have to show the child would be harmed by a lack of contact." Since Camburn, South Carolina falls into the latter category, at least for now.
The October 21, 2005, edition of the ABA Journal eReport contains an article by Geri L. Dreiling, Grandparents' Rights Survive which discusses the aftereffects and possible changes in the aftermath of Troxel.
If a citizen of SC has been given a order for visitation from another state, can the SC Supreme Court over turn the ruling?
My son has gone through a bitter custuy fight. His wife left to join the military when Shawn was 3 months, he is now 2 1/2 years old. It was decided this week that the wife would have full custody due to the judges decision. She never had any contact with baby until 3 months ago. As his grandmother and I have been a nuturing figure in his life do I have any hope for visitation rights, if I ask the court or retained an attorney. I have never spoken bad about the mother or did anything to her accept stand by my son, but it is evident she has great disdain for me. do I stand a chance, this is causing me much sadness and dispair as I love my grandson and he has become an integral part of my life, I feel like I have had a death in my family due to this, Help!
My son has gone through a bitter custody fight. His wife left to join the military when Shawn was 3 months, he is now 2 1/2 years old. It was decided this week that the wife would have full custody due to the judges decision. She never had any contact with baby until 3 months ago. As his grandmother and I have been a nuturing figure in his life do I have any hope for visitation rights, if I ask the court or retained an attorney. I have never spoken bad about the mother or did anything to her accept stand by my son, but it is evident she has great disdain for me. do I stand a chance, this is causing me much sadness and dispair as I love my grandson and he has become an integral part of my life, I feel like I have had a death in my family due to this, Help!
Our grandaughter is seven years old. Her mother took her away from us when she was about two and 1/2 years old. After fighting for visitation for our grandparents rights,her mother had to let us have our visitation with her. By that time she was four and we had alot of time to make up for. As our visits became more frequent,even her mom and step dad became involved in all of our family gatherings and life was good.Then my son got out of prison from serving time for grand theft and our rights went "Puff".She took our Santana away again. Believing that our son had changed,we drained our savings to help him,which was a big mistake. Now our funds are drained,he's gone again,married with an new son in Chicago and Santana's mom is mad at us. It's such a mess. Santana has twin four year old cousins,an Aunt who adores her,great aunts and uncles who adore her,a great grandma and Pawpaw and NaNa who are devastated by our great loss and hers. She was extremely close to NaNa and NaNa was extremely close to her.We were like best friends. Do these people who do this have any idea what they are doing to their children when they alienate them from the rest of the family? Santana has been in counseling since this happened in 2004. Before this,she didn't even know what the word trauma meant.Is there anybody who can help us to get our rights back and do you know what Someone would have to do to press the issue of Grandparents Rights here
in SC,such as proposal of a bill or some organizations. I would like to help others like myself to prevent these parents' indifferences doing injustices like this because they are mad at their
ex.The children should not suffer because the parents despise each other.That's only going to hurt the child or children involved. What kind of adults will that make them?
My husband case full custody of his now 9 y/o son. His mother has supervised visitation, with her mother (child's grandmother) as the supervisor of these visits. According to the custody order his mother is not to EVER be alone with the child, due to mental health issues that affect her ability to make good decisions. However, the grandmother has been allowing the mother to be alone with the child, and the mother is planning to take the child out of state to visit a "friend" durring an upcoming visit without the grandmother. What can we do to protect the child?
My parents were granted legal custody of my niece shortly after her birth. Though she has always known that this is her grandparents, she is basically their daughter. My niece now has children that she has unfortunately abandoned. The each live with their fathers. Her now seven year old daughter lives with her father. After he started keeping her, he moved several hundred miles from the maternal family. My niece does not pay the ordered child support and evidently has no desire to visit with her child. The rest of the family does want to see her and talk to her. Her father will not allow us to see her or talk to her on the phone--for no reason. She has always been close to all of us. I know that she would benefit from having a relationship with us. What are our chances of receiving visitation if we go to court? Is their any thing that can aide Great-Grandparents rights to their family?
As of today, Jan. 14, 2007 Santana's mother is still not letting us see her. Although she is now talking to my daughter and Santana gets to see her twin cousins......her mother still hasn't allowed us to see her. She says that Santana just does not want to see her father, which we have no problem with.We were allowed to buy her birthday gifts this year and Christmas presents for her and her half brothers, which we are truly grateful for. And her mother has allowed me to speak with her on the phone, which we are also truly grateful for, but after talking with Santana on the phone it is obvious that she still misses her NaNa and Paw Paw as much as we miss her. We often wonder if she cries for us, wonders why we don't come to see her or why her cousins (our grandsons) get to see her and she does not. It has been a truly devastating 8 years for us and Santana. And we don't want to place anymore trauma on our precious grandchild, but we honestly don't know if not seeing us is in her best interest or if it is hindering her. Our funds are drained, and at this point we don't even know if going back to court again would help her or hurt her. We are both very confused at this point. Is there anybody out there who could possibly shed some light on this. I promised Santana that we would always be there for her. She made me promise, and now we are not. What can we do?
My son past away 4 years ago, 4 months after his death, his wife disapeared with my 4 grandchildren. The loss was overbearing. I have an idea of where they are. Can someone help me? I just need to see them and hold them again, we were so very close. I pray to God everynight to watch over them, as the mother has never been stable. Checking people seach I know she has meoved 4 times in the last 4 years. I have been looking for help all this time. Please, is there anyone out there who can ease my pain.
Id like to post a question I have a 1yr old grandson.My son and his mom were not married.My son is incarcerated at this time.The young lady allowed me to be there to witness the birth of the child,which caused me to bond with him right away. Then about 2 months after the child was born there arose an issue about some pictures. The next thing i knew iam not allowed to see my grson anymore. Now with my son being incarcerated i don't know if i have any rights to petition the courts to see my grson. I have a general power of attorney from my son and am wondering if that would help me with the right to petition on his behalf. It hurts so bad when you are denied the opportunity to bond and have relationship with your own children's children. It's hurts real bad.
Is there a new law recently made in new york which allows aunts and uncles to have standing for visitation
I am a resident of sc, and my childs father and grandparents live in ohio. About 3 years ago she filed for grandparents rights thru Ohio, and won. I spent a great ammount of money fighting but couldn't make it to the hearings due to the fact that they were out of state and i was a single mother. I have now been married for almost 2 years. So my question is: is there any way to get out of this grandparents visitation? I dont have a problem with them seeing her, however i do feel that the visitation aloted to her was to much, she gets my child for 1 month every four months. It is very hard on me emotionaly when she is gone as well as when she comes back. They let her do whatever she wants when she is there and she is now 5 so this is causing problems with her behavior. So someone please help me!! Can i get out of this without spending a ton of money on a lawyer again?
You should update this article. According to the Court of Appeals in the unpublished opinion in Blackwell v Birket grandparents and parents violate public policy if they agree that the grandparents may have contact with their grandchildren. Shame on the grandparent who agrees to babysit a grandchild in South Carolina because they are in violation of public policy. see bellasophie.com
Our precious granddaughter has just turned 16 in June. For almost six years I practically raised her while her parents (my son) and (ex-daughter - law) gave into their desires for freedom and the search for the perfect "lover". I was delighted to have this time with her and do all the things awarded as a grandparent. Living in SC we made the beach a vacation every weekend, movies, shopping, "scoopy Do" marathons.
At age 2 mom & dad divorced, I was scared because I thought my time with my granddaughter would be limited. My fears were erased as mom and dad settled into thier new "loves". Their 2 year old was spending more and more time with me and I embraced this with immense thankfullness.
Then my fears were awakened each Sunday when it was time to take her home to her mother. She began acting out by becoming angry because she could not stay with me. I would hold her and explain to her that she was so lucky to have so many people who wanted and loved her. "NO" she would say and would bury her little head in my neck and sob.
At age 3 I began picking her up from daycare and then kindergarden then on to Elementary. My concern grew and grew to the point that this precious little girl showed signs of neglect and later abuse. (ex) shoes to small where the blisters were so severe she could hardly walk. Her hair was dirty and her clothes too small and also dirty. I addressed these issues with the school and because "I was just the grandmother" my concerns were dismissed. The bruises, belt marks and then the black eye were dismissed also. The police tried to help they did all the necessary paperwork but it fell to deaf ears in the Horry Co. Courts.
Where was my son in all this, in La La Land with his new wife with 2 children of her own and where this "child" from the "other woman" didn't matter. I came to realize this was not my child, I was only the grandmother and there was nothing I could do about it. I began to deterioate physically and I didn't know why, all I knew was that my time with this special little girl was becoming less and less frequent.
In 2003 (granddaughter 6)I made the decision to save my life in order to be able to save my granddaughter. I felt that maybe this would make my son step up to the plate and put his daughter first. That maybe "mom" would see how important she was to her daughter. I have several friends making sure (granddaughter) knew her "grammy" loved her and she would always be in my heart and that one day she would be able to make the decision of where she wanted to live. One of my friends in 2003 contacted me and reported my granddaughter was being abused by her stepfather. My only recourse was to call the police to make sure she was alright. They did go to the home however, my granddaughter was asked if her stepfather hurt her "today" she was 6 she replied "not today".
From that point on I have had to rely on neighbors and friends to give me information about my granddaughter. My ex-daugher-in-law reported that I was "prejudice" because the stepfather was hispanic. It went on deaf ears when explaining only because he hurt her was the reason for my anger.
Speeding things up, this past year they moved and I finally found out where my granddaughter was going to school. Then the miracle of FB brought treasured moments for my husband and I to have contact with my granddaughter. Just as suddenly our joy began it was destroyed in a few short weeks. Mom found out and deleted our contact and sent my granddaughter to "Mexico" for the summer, against a court order at that.
Last May we found a friend from school who allowed us to send a phone to her (granddaughter). Words cannot express the feelings of love that was shared in hearing her voice for the first time in 4 years. June, she turned 16, through the internet we found out where she actually lived. We had always promised her that if she was not living with us when she turned 16 that we would be there on her birthday.
Yes we were able to hold her and squeeze her and shower her with many kisses before her mother called the police to escort us off the property. We begged her mother to please put her personal feelings aside and to look at her daughter and see her pain. Even the officers asked the mother to reconsider "no" it was her property and she wanted us removed.
Now it is July her mother found the phone, once again no contact, no more sharing of love and support for this very alone precious teen. I am begging for someone out there to help us with words of encouragement and direction of how we can be a part of our granddaughters life. With prayers to ease this pain both for us and for our granddaughter, please respond with how we can proceed with grandparents rights before it is too late.
I raised my grandson from practically birth to the age of 5. Then suddenly out of the blue on Dec 4, 2009 his mother, with the police, came for him. I have been trying to fight to see him every since. My entire life has been turned upside down and I'm heart broken over the loss of this child. My grandson has special need's and nobody cares. His rights have been violated and it's going on 2 1/2 years and I still haven't seen him. I promised him the night he was taken from his home with no toys, no clothing, nothing of his own. How can it be ok for a child to be torn away from it's entire life by an irresponsible parent? And placed into a situation without a single part of it's very own identity attached? How can a system support such actions? This is terrorism in my opinion. A higher form of child abuse when a child's entire life will be affected as a result of a desperate mother making hasty decisions regarding an innocent child. Our criminal justice system is full of children with this very story. I pray my grandson will not be a part of this system as I'd fought very hard to raise him to be a proper young man. I did not waste our life together ruining his innocence against his Mother who is a very damaged adult. I wanted my grandson to have a very happy, fruitful life and shield him from the ugly of what had happened to him. I promised him, I would never stop until I got to seen him again. I will never, ever give up the fight but I need help. I was the ONLY mother this child knew.. My daughter gave birth to this child and wanted nothing to do with him until it became a problem for her new boyfriend. My grandson did not know his own Mother as she was a party animal who had time for men, but never her own son. She had to show up with the child to prove to the new boyfriend she was a straight up person or else. She tore our lives apart for her lie and the courts are supporting such a betrayal to this innocent child. I taught my grandson stranger danger and he believed he was being kidnapped. Can you imagine what it is like to be torn away from your Mother? by a stranger? And you are told your mother is dead? This world is a mess and our courts are allowing these adult children to terrorize their own children along with their parents. There are no winner's for situations such as this. I'm at a loss for what to do next. I cry non-stop out of fear for what's being done to this child by a place I raised him to be proud of. It's a daily nightmare. I will never stop until I take my last breath, fighting for an innocent child who didn't ask for any of this mess he's in. I need help.