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The Current Status of Grandparent Visitation

Posted by J. Benjamin Stevens | Oct 27, 2005 | 0 Comments

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.

About the Author

J. Benjamin Stevens

Aggressive, creative, and compassionate are words Ben Stevens' colleagues freely use to describe him as a divorce and family law attorney. Ben is a Fellow in the prestigious American Academy of Matrimonial Lawyers, the International Academy of Family Lawyers, and is a Board Certified Family Trial Advocate by the National Board of Trial Advocates. He is one of only four attorneys in South Carolina with those simultaneous distinctions. To schedule a consultation with Ben Stevens call (864) 598-9172.

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