Grandparent Visitation Petition - South Carolina

PETITION FOR GRANDPARENT VISITATION

(South Carolina — S.C. Code Ann. § 63-3-530(A)(33))

I. PARTIES

1.1 Plaintiff(s) — Grandparent(s)

Co-Plaintiff (spouse / other grandparent), if applicable:

1.2 Defendant(s) — Parent(s) / Custodian

1.3 The Minor Child

II. JURISDICTION AND VENUE

2.1 Subject-matter jurisdiction. The Family Court has exclusive jurisdiction over this action under S.C. Code Ann. § 63-3-530(A)(33), which authorizes the Family Court to order visitation for the grandparent of a minor child in the circumstances set forth therein.

2.2 UCCJEA home state. South Carolina is the home state of the minor child under the Uniform Child Custody Jurisdiction and Enforcement Act, S.C. Code Ann. §§ 63-15-300 et seq., because:

☐ The child has lived in South Carolina with a parent or person acting as a parent for at least six (6) consecutive months immediately before the filing of this action; or

☐ South Carolina was the child's home state within six (6) months before filing and a parent or person acting as a parent continues to live in this State; or

☐ Other basis: [____________]

2.3 Venue. Venue is proper in [____________] County because the minor child resides in this county and/or the Defendant(s) reside in this county.

2.4 Other proceedings.

☐ There are no other pending or prior proceedings concerning the custody or visitation of the minor child.

☐ There are other proceedings — Court: [____________]; Case No.: [____________]; Nature: [____________].

III. STANDING — STATUTORY THRESHOLD CIRCUMSTANCE

3.1 Plaintiff has standing under S.C. Code Ann. § 63-3-530(A)(33) because at least one of the following threshold circumstances exists (check all that apply):

☐ One or both of the parents of the minor child is or are deceased.

☐ The parents of the minor child are divorced.

☐ The parents of the minor child are living separate and apart in different habitats (regardless of the existence of any court order or agreement).

3.2 Supporting facts for the circumstance(s) checked above:

[____________________________________________________________]

IV. FACTUAL ALLEGATIONS

4.1 History of the relationship. Plaintiff has had a significant relationship with the minor child, as follows:

[____________________________________________________________]

4.2 Unreasonable deprivation — § 63-3-530(A)(33)(1). The child's parents or guardians are unreasonably depriving Plaintiff of the opportunity to visit with the child, including by denying visitation for a period exceeding ninety (90) days, as follows:

[____________________________________________________________]

Date contact was last permitted: [__/__/____]. Number of days denied as of filing: [____].

4.3 No interference with the parent-child relationship — § 63-3-530(A)(33)(2). Awarding the requested grandparent visitation would NOT interfere with the parent-child relationship because:

[____________________________________________________________]

V. CONSTITUTIONAL AND STATUTORY STANDARD

5.1 Special weight to a fit parent's decision (Troxel / Camburn). Plaintiff acknowledges that parents have a fundamental constitutional right to make decisions concerning the care, custody, and control of their children, and that a fit parent's decision regarding visitation is entitled to special weight and a presumption that it is in the child's best interest. Troxel v. Granville, 530 U.S. 57 (2000); Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003).

5.2 Statutory burden — § 63-3-530(A)(33). To obtain court-ordered visitation, Plaintiff must establish each of the following, and the Court must find:

(1) That the child's parents or guardians are unreasonably depriving Plaintiff of the opportunity to visit with the child, including denial of visitation for a period exceeding ninety (90) days; and

(2) That awarding grandparent visitation would not interfere with the parent-child relationship; and either

(a) That, by clear and convincing evidence, the child's parents or guardians are unfit; or

(b) That, by clear and convincing evidence, there are compelling circumstances to overcome the presumption that the parental decision is in the child's best interest.

5.3 Election of the (a)/(b) basis. Plaintiff proceeds under (check one or both):

☐ § 63-3-530(A)(33)(a) — the parents/guardians are unfit (clear and convincing evidence). Supporting facts: [____________]

☐ § 63-3-530(A)(33)(b) — compelling circumstances overcome the presumption (clear and convincing evidence). Supporting facts: [____________]

5.4 Compelling circumstances / significant harm. Where Plaintiff proceeds under (b), Plaintiff alleges that compelling circumstances exist, which the Family Court may find based on, among other things, significant harm to the child, the death of a parent and the effort to maintain ties to that deceased parent's family (Marquez v. Caudill, 376 S.C. 229, 656 S.E.2d 737 (2008)), the child's adjustment to home/school/community, and the physical and mental health of the child. Plaintiff specifically alleges:

[____________________________________________________________]

VI. BEST INTEREST OF THE CHILD

6.1 Subject to the heightened standard in Section V, Plaintiff alleges that the requested visitation is in the best interest of the minor child, considering the following:

☐ The nature and quality of the relationship between the child and Plaintiff: [____________]

☐ The child's adjustment to home, school, and community: [____________]

☐ The mental and physical health of the child and the parties: [____________]

☐ The benefits to the child of maintaining a relationship with Plaintiff: [____________]

☐ The potential harm to the child from too many persons holding court-ordered rights: [____________]

6.2 Child's preference (if of sufficient age and maturity).

☐ The child has expressed a desire to maintain a relationship with Plaintiff: [____________]

☐ The child is too young or immature to express a preference.

VII. PROPOSED VISITATION SCHEDULE

7.1 Regular visitation. Plaintiff requests:

☐ Weekly: [____________] ☐ Monthly: [____________] ☐ Other: [____________]

7.2 Holidays and special occasions.

7.3 Transportation / exchange. [____________]

7.4 Communication. Telephone/video contact: [____________]

VIII. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court:

A. Assume jurisdiction under S.C. Code Ann. § 63-3-530(A)(33);

B. Find that one or more of the threshold circumstances (deceased / divorced / living separate and apart) exists;

C. Find that the Defendant parents or guardians are unreasonably depriving Plaintiff of visitation, including denial exceeding ninety (90) days, and that the requested visitation would not interfere with the parent-child relationship;

D. Find, by clear and convincing evidence, ☐ that the parents/guardians are unfit ☐ that compelling circumstances exist to overcome the presumption that the parental decision is in the child's best interest;

E. Enter an order awarding Plaintiff reasonable visitation with the minor child pursuant to the schedule in Section VII, or as the Court deems just;

F. Award attorney's fees and costs to the prevailing party as authorized by § 63-3-530(A)(33); and

G. Grant such other and further relief as the Court deems just and proper.

IX. VERIFICATION

STATE OF SOUTH CAROLINA )
COUNTY OF [____________] )

I, [PLAINTIFF NAME], being first duly sworn, state that I am a Plaintiff in this action; that I have read the foregoing Complaint; and that the facts stated therein are true and correct to the best of my knowledge, information, and belief.

_________________________________
[PLAINTIFF NAME], Plaintiff

Subscribed and sworn to before me this ___ day of __________, 20___.

_________________________________
Notary Public
My Commission Expires: ___________

X. SIGNATURE

Respectfully submitted this ___ day of __________, 20___.

_________________________________
[PLAINTIFF NAME], Pro Se
OR
_________________________________
[ATTORNEY NAME], S.C. Bar No. [____________]
[FIRM NAME]
[ADDRESS] | [PHONE] | [EMAIL]
Attorney for Plaintiff(s)

XI. NOTICE TO DEFENDANT (SUMMONS)

TO THE DEFENDANT(S): YOU ARE HEREBY SUMMONED and required to answer the foregoing Complaint, a copy of which is served upon you, and to serve a copy of your answer upon the undersigned at the address shown above within thirty (30) days after service hereof, exclusive of the day of service. If you fail to answer within the time stated, the Plaintiff(s) will apply to the Court for the relief demanded in the Complaint, and judgment by default may be rendered against you. You have the right to be represented by an attorney.

XII. CERTIFICATE OF SERVICE

I certify that on [__/__/____] a true and correct copy of the foregoing Summons and Complaint (and accompanying UCCJEA affidavit) was served upon each Defendant by ☐ personal service ☐ certified mail ☐ service of process server ☐ other [____________], at the address(es) listed above.

_________________________________
[PLAINTIFF / ATTORNEY SIGNATURE]

SOURCES & REFERENCES

• S.C. Code Ann. § 63-3-530(A)(33) — Family Court exclusive jurisdiction to order grandparent visitation: threshold circumstance (deceased / divorced / living separate and apart); (1) unreasonable deprivation, including denial exceeding 90 days; (2) no interference with the parent-child relationship; (a) parental unfitness by clear and convincing evidence; (b) compelling circumstances by clear and convincing evidence; definition of "grandparent"; attorney's fees to prevailing party. (Amended 2014 by H.4348.)
• Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003) — a fit parent's decision is entitled to special weight; visitation over a fit parent's objection requires compelling circumstances such as significant harm to the child.
• Marquez v. Caudill, 376 S.C. 229, 656 S.E.2d 737 (2008) — a biological parent's death and the effort to maintain ties to the deceased parent's family may be a compelling circumstance.
• Troxel v. Granville, 530 U.S. 57 (2000) — a fit parent's decision regarding visitation is entitled to special weight.
• S.C. Code Ann. §§ 63-15-300 et seq. — Uniform Child Custody Jurisdiction and Enforcement Act; § 63-15-336 (affidavit).

This Petition is a preparation aid only. South Carolina grandparent visitation requires a death/divorce/separation threshold AND clear-and-convincing proof of either parental unfitness or compelling circumstances (often significant harm to the child) to overcome the constitutional presumption favoring a fit parent's decision. Consult a licensed South Carolina family law attorney before filing.