Can Grandparents Seek Custody of Grandchildren?

South Carolina’s grandparent visitation law protects the rights of grandparents under certain circumstances to visit their grandchildren.  But what if, as a grandparent, you are concerned that your child may not be a fit parent for his child?  Can you seek custody of your grandchild? Yes, it is possible as a grandparent to obtain custody of your grandchild.  But it is not easy.

There is a strong legal presumption that children belong with their biological parents unless the parents are demonstrably unfit. The U.S. Supreme Court in Troxel v. Granville reiterated that the Due Process Clause of the Constitution protects parents’ fundamental rights to the care, custody and control of their children.  Thus, for a grandparent to obtain custody of her grandchild, she must surmount two substantial hurdles.  First, she must prove that she is the child’s “de facto custodian.”  Next, she must show that the biological parent (or parents) is unfit.

De Facto Custodian

Under Section 63-15-60 of the South Carolina Children’s Code, a “de facto custodian” is a person who has shown, by clear and convincing evidence, that she has been the primary caregiver and financial supporter for a child who has resided with her for the required statutory period of time.  The time periods are:

• six months or more if the child is under three years old; or
• one year or more if the child is three or older.

The statute specifies that any period of time after the legal proceeding has begun does not count; it is therefore important that the statutory time period has been met before any action is filed.

Only after a grandparent has established that she is a de facto custodian is she able to seek custody.  Thereafter, if she can demonstrate that the parents are unfit, or that other compelling circumstances exist, the court may grant her custody.  Note that the simple fact that the parents may have left the child with the grandparents long enough to establish de facto custodianship is not by itself sufficient evidence to demonstrate unfitness.

Proving Parental Unfitness

The Children’s Code states that parental unfitness must be proved by clear and convincing evidence.  A grandparent can prove that a grandchild’s natural parent is unfit by showing, for example:

• the parent is addicted to drugs or alcohol;
• the parent has abused or neglected the child;
• the parent is irresponsible and makes decisions endangering the child; or
• the parent cannot obtain adequate housing or provide for the child’s economic needs.

Consult a Greenville Family Lawyer

If you are a grandparent concerned for your grandchildren’s well-being, or if you wish to seek visitation with your grandchildren, a good first step is to consult a knowledgeable family lawyer.  Robert Clark is a family lawyer based in Greenville with years of experience representing individuals in complex and sensitive family situations.  Robert Clark has the skills and compassion to help with whatever your family law needs may be.  Contact him at Greenville Family Law for a consultation today.