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?