A mother who set ground rules before letting her infant son visit with the mother of the child’s late father didn’t deprive the grandmother of her visitation rights, the South Carolina Court of Appeals has ruled.

The child’s father was killed in a car crash shortly after the child’s birth and the child’s paternal grandmother demanded unsupervised visitation. The relationship between the child’s mother and grandmother was strained, however, and the mother did not feel comfortable letting the grandmother have unsupervised visits with the child. The mother offered to let the grandmother visit with the child at least once a month under supervision.

South Carolina law permits a family court to order visitation for the grandparent of a child if either or both parents are deceased, divorced, or living apart. The grandmother contended the mother violated the statute by unreasonably denying her of visitation with the child for more than 90 days. She filed a lawsuit demanding unsupervised visits, and Aiken County Family Court Judge Dale Moore Gable granted her request.

In a unanimous Jan. 4 opinion, the Court of Appeals disagreed and reversed the family court’s ruling. Judge Aphrodite Konduros, writing for the court, said that Gable had erroneously applied the grandparent visitation statute to conclude mother had unreasonably withheld opportunity for visitation.

“The record indicates that grandmother was offered supervised visitation on multiple occasions,” Konduros wrote. “We reject grandmother’s contention that supervised visitation was unreasonable, holding that once a parent agrees to grandparent visitation, any further judicial intervention would likely infringe upon the parent’s fundamental rights.”

The grandmother was not unreasonably deprived of the opportunity for visitation just because she disagreed with the conditions that the mother set, Konduros wrote. Rather, the conditions were reasonable under the circumstances given the hostility between the mother and grandmother and the lack of a close bond between the grandmother and the child.

“The record reveals Grandmother was offered supervised visitation on multiple occasions during the year following Father’s death,” Konduros wrote. “Grandmother’s central point of contention is that mother’s insistence that visitation be supervised was unreasonable. We cannot agree.”

Konduros said that the court was not suggesting that a parent can circumvent the 90-day statute by intentionally and disingenuously thwarting grandparents’ opportunities to visit with their grandchildren, and each case must be decided on the particular facts and circumstances presented. But grandparents refusing to accept the type of visitation offered, provided it is reasonable, will “likewise fail to carry the day.”

Attorney Brian Katonak of Aiken represented the mother. He said that if the child’s father was alive, the father could set the terms of when or if his son would see his grandmother.

“Their argument was that the grandmother got to choose the visitation she wanted and would be not be restricted by the mother’s desires,” he said. “I read it as the mother can dictate the terms as long as you offer some sort of visitation.

Jessica Partain, a family law attorney with The Peck Law Firm in Charleston who was not involved in the case, said that she was happy to see the ruling come down.

“We at the trial level find ourselves floundering a bit on what is unreasonable denial and what we need to look for when advising clients on the potential weaknesses of their case,” Partain said.

“We see quite a bit of latitude with certain judges in giving grandparents visitation. It is clear in the statute that parents have superior rights, and I appreciate seeing more guidance from the Court of Appeals reaffirming what we have been told: that parents have those superior and natural rights to make decisions for their children.”

Brad Owensby of Aiken, who represented the grandmother, could not be reached for comment.

Follow Bill Cresenzo on Twitter @bcresenzosclw



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