Seeking Custody of your Grandchildren

In a previous post, we discussed the legal standard for obtaining court-ordered visitation with your grandchildren as a grandparent in South Carolina. However, if your child has become an unfit parent to your grandchildren, or conditions exist in your grandchild’s home that have left you deeply concerned about their well-being, there are circumstances under which you as a grandparent can obtain primary custody of your grandchildren. Read on to learn about this process.

As a general prerequisite to seek custody of your grandchildren, you must first prove to the court that you have standing to do so. In order to prove standing, you must show either that you are a psychological parent to the children, or that you are the children’s de facto custodian.

Psychological parenthood is defined with a four-part test first developed by South Carolina courts in the 2006 case of Middleton v. Johnson. In order to have standing to obtain custody, a grandparent (or other nonparent) must show:

  • That the biological or adoptive parent[s] consented to, and fostered, the grandparent’s formation and establishment of a parent-like relationship with the child;
  • That the grandparent and grandchild lived together in the same household;
  • That the grandparent assumed obligations of parenthood by taking significant responsibility for the grandchild’s care, education and development, including contributing towards the grandchild’s support, without expectation of financial compensation; and
  • That the grandparent has been in a parental role for a length of time sufficient to have established with the grandchild a bonded, dependent relationship parental in nature.

Essentially, a grandparent has to show that the biological parent invited the grandparent into the child’s life in such an intimate way that the pool of possible applicants for custody is a small group, and that the grandparent has shown an ability and willingness to take on the responsibilities of parenthood. Once a grandparent or other nonparent has made such a showing, the family court has the discretion to award visitation or custody to such a party if doing so would serve the child’s best interest.

Under statutory law in S.C. Code Ann. Section 63-15-60, a grandparent (or other nonparent) may prove to be the grandchild’s De Facto Custodian where the grandparent has been the “primary caregiver for and financial supporter of a child who:

  • has resided with the person for a period of six months or more if the child is under three years of age; or
  • has resided with the person for a period of one year or more if the child is three years of age or older.”

Basically, this describes a situation where the grandparent has taken on all duties of parenthood and wishes to make his or her role as a parent legal and official. Where the court finds that a grandparent is the child’s de facto custodian, the court has the discretion to award custody to the grandparent where the grandparent can also prove that the child’s biological parents are unfit, or that other compelling circumstances exist. The court will consider evidence of substance addiction, abuse or neglect of the children, or other unsafe conditions in the child’s home in order to conclude that the parents are unfit.

Other options for grandparents facing similar circumstances are to consider seeking grandparent visitation (see our previous blog post for more details) or adoption (in which case certain grounds must be proven to terminate the parents’ parental rights to the child). Establishing any of these grounds involves complex factual showings, and a grandparent seeking to extract their grandchildren from such desperate circumstances should consult with an experienced family law attorney for help.

If you are a grandparent seeking assistance with obtaining custody of a grandchild, or if you are a parent fighting to retain custody of your children, contact Spartanburg’s compassionate and knowledgeable family law attorneys at The Cate Law Firm for a consultation, at (864) 585-4226.

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