But recently felt blessed when I heard a friend say she was not allowed visitation with her granddaughter. How can this be?
Family situations are complex. One only has to read the fact patterns for a few appellate court cases to see the difficult job judges have balancing grandparent interests with parental rights of deciding who and how extended-family-members will be allowed to interact with and influence young children. Following the US Supreme Court case of Troxel et vir v. Granville, 120 S.C. 2054, 147 L.Ed.2d 49, 68USLW 4458 (June 5, 2000) state laws have swung away from liberal grandparent visitation.
In situations where one or both of the natural parents are deceased, or are divorced or living apart, South Carolina law, S.C. Code §63-3-530 (33)(Thompson-West as amended in 2010) now requires for a family court to find:
- the parents have unreasonably denied grandparent visitation in excess of 90 days, and
- that the grandparent has maintained a relationship with the grandchild similar to that of a parent-child, and
- awarding grandparent visitation would not interfere with the parent-child relationship, and
- the court finds by clear and convincing evidence the parents are unfit or there are compelling circumstances to overcome the presumption that the parent’s decision is in the best interest of the child.
These high burdens of proof have been deemed necessary to overcome a parent’s14TH Amendment Due Process Rights which guarantees individuals a heightened protection from government interference with certain fundamental rights and liberties, including the parents’ right to make decisions for their children. As a practical matter grandparents are usually counseled to tread lightly and focus on non-controversial events, not major holidays, for visitation since sometimes religious and cultural differences can have a huge impact on family relationships.
As of June 12, 2013 South Carolina recognized grandparent rights in situations where DSS becomes involved to avoid children being placed in foster care or put up for adoption. In these circumstances grandparents now have standing as early as a probable cause hearing to be considered for expedited placement and to be named a party and appear at all hearings. S.C. Code 63-7-730
If you are raising your grandchildren you are not alone. A Pew Research Report released on September 7, 2013 showed that nearly 8 million or approximately 10% of American grandchildren live in a household headed by a grandparent. With or without the parent the vast majority of these kids, 71%, live in households where the grandparents had taken the grandchildren in. The Pew Report, which draws off the 2000 US Census and a 2005-11 American Community Survey, showed that a large amount of the parents were disabled in some way, unemployed, teen parents, unmarried, lacked a high school diploma or had other rocky financial situations, such as were going through a separation or divorce. Of course other factors can cause grandparents to be repeat parents such as the death of a parent or a parent’s substance abuse, mental illness, jail time or military deployment. The Pew Report found 55% of these grandchildren have been living with the grandparent as the childrens’ primary caregiver for over three years. This situation of grandparents being repeat parents is not limited to the poor or any particular race or ethnic group as 39% are white, 26% black, 25% Hispanic, and 3% Asian.
While your grands may not actually live with you or depend upon you for financial support, your caregiving is undoubtedly a great blessing to your children and grandchildren. Having knowledge of the shifting dynamics of the modern family enables attorneys to more effectively advise their clients on their estate planning. I find a significant number of adult grandchildren play a role in caring for grandparents in their later years. This was the case in my own family where my brother’s children, my niece and a nephew, moved in with their beloved Poppy Ed. I recall my Dad changing diapers and slow dancing teething grands to sleep. As “his gang” grew he took them to the movies and the horse stables. Hopefully, you will find yourself blessed again.
Disclaimer: Information contained in this column is meant to be of general information on frequently asked questions concerning disability, elder law, estate planning and probate law, and does not contain specific legal advice to a client. No attorney-client relationship is created by reading this column.