COLUMBIA, S.C. - The South Carolina Supreme
Court sharply limited the ability of Family Court judges to order
visitation rights for grandparents in a ruling Monday.
Susan and Terry Smith appealed a lower court ruling. The couple
said the judge unconstitutionally required visits between their
three children and her parents, Benjamin and Bethanne Camburn of
Conway.
Showing "a child may benefit from contact with the grandparent,
or that the parent's refusal is simply not reasonable in the court's
view, does not justify government interference in the parental
decision," the unanimous high court said in overturning a Family
Court decision.
Before Monday's ruling, grandparents in South Carolina could
petition for visitation with their minor grandchildren if the
parents of the children were separated or divorced. The grandparents
had to show that the visits would be in the best interest of the
children and that they had an existing relationship with their
grandchildren.
The grandparents had to show that visits would not interfere with
the parent-child relationship.
Now, however, grandparents would have to show other factors, such
as "significant harm" if visitation wasn't allowed, the court
said.
"That's going to be a really tough one for grandparents to meet,"
said Rochelle Bobroff, a lawyer for AARP.
Before 1965, grandparents had no rights under the law to visit
their grandchildren, the AARP says. Legislatures changed that and
every state has some form of grandparent visitation rights law.
But those laws are under greater scrutiny since a 2001 U.S.
Supreme Court decision that overturned broad child visitation rights
for grandparents and others.
With that decision, a court has to "allow a presumption that a
fit parent's decision is in the child's best interest," the state
Supreme Court said. The Family Court's ruling granting visitation
"unduly interfered" with the parents' rights in the "care, custody
and control of their own children," the high court said.
The South Carolina decision is similar to state supreme court
opinions in Georgia, Iowa, Michigan, Tennessee and Washington that
have said courts can require grandparents show a child would be
harmed without their visits. But other cases have used a standard of
what's in the child's best interest, including a recent case in
Massachusetts, Bobroff said.
South Carolina's case was different in one regard, Bobroff
said.
"In all of the cases that I've ever seen, there really isn't an
allegation that the parents are unfit," Bobroff said.
The lower court noted that while the Smiths were separated, she
took her children to Maryland, where the biological father of one of
the children fled to avoid arrest; she kept the children out of
school during that time and her parents had her involuntarily
committed to a psychiatric care when she returned.
"There is no clear and convincing evidence here that mother or
husband is unfit, nor did the Family Court make any such finding,"
the state Supreme Court
said.