Court of Appeals Clarifies Grandparent Visitation

Court of Appeals Clarifies Grandparent Visitation Rights in South Carolina
Dendy v. Gamble Reinforces Custodial Parents’ Rights in Third-Party Visitation Disputes

Overview
In a significant decision filed February 12, 2025, the South Carolina Court of Appeals reversed a family court’s grant of visitation to grandparents, clarifying important principles about de facto custodian status, psychological parenthood, and grandparent visitation rights. The case, Dendy v. Gamble, Appellate Case No. 2023-001358, provides crucial guidance for family law practitioners handling custody and visitation disputes involving third parties.

Case Background
The case centered on a dispute between a minor child’s grandparents and her legal custodians—the child’s aunt and the aunt’s partner. The child, B.G., was born in 2010 and initially lived with her grandparents from infancy until approximately age five. In 2015, B.G. began living with her aunt and uncle, who obtained permanent legal and physical custody through a court order in 2017 with the mother’s consent.

After a falling out in 2019 over a disagreement about the child’s haircut, the grandparents had no contact with B.G. for over a year. In 2020, they filed suit seeking custody or, alternatively, visitation. By the time of trial in 2023, four years had passed without contact, and the child expressed to the guardian ad litem that she did not wish to visit her grandparents.

The family court granted the grandparents visitation, finding they were de facto custodians and psychological parents of the child. The aunt and uncle appealed.

Key Legal Holdings
De Facto Custodian Status Has Time Limits
The Court of Appeals held that de facto custodians lose standing once they no longer discharge the duties incidental to a parental relationship. While the court declined to establish an exact timeframe for when this status expires, it found that five years after the child last lived with them, the grandparents were clearly no longer functioning as de facto custodians.

The court reviewed other states’ approaches and noted that many jurisdictions include recency requirements in their de facto custodian statutes. The underlying principle is that the status doesn’t continue indefinitely once the custodial relationship has ended.

Practice Point: Attorneys should carefully evaluate the timeline between when a third party last served as primary caregiver and when they filed their petition. Even if someone previously met the definition of de facto custodian, that status may have lapsed.

Psychological Parent Status Can Expire
The court emphasized that psychological parent status is not permanent. Once the grandparents transitioned to a traditional grandparent role and the aunt and uncle assumed parental responsibilities, the grandparents could no longer claim psychological parent status. Additionally, there was no “parental void” for the grandparents to fill once the aunt and uncle became legal custodians.

The court reiterated the four-part test from Marquez v. Caudill for establishing psychological parenthood, with particular emphasis on the requirement that the biological or adoptive parents must have consented to and fostered the parent-like relationship. Once the mother agreed to grant legal custody to the aunt and uncle, she no longer fostered a parent-like relationship with the grandparents.

Practice Point: Third parties seeking to establish psychological parent status must demonstrate not only a historical parent-like relationship but an ongoing one at the time of the petition.

Legal Custodians Have Parental Presumption
Perhaps most significantly, the Court of Appeals clarified that legal custodians are entitled to the same presumption afforded to parents—that their decisions regarding visitation are in the child’s best interest. This presumption can only be overcome by showing compelling circumstances, such as significant harm to the child if visitation is not granted.

The family court erred by treating the case as a dispute between “mere third parties” and by stating the 2017 custody order had “no priority.” The appellate court emphasized that one family court judge has no authority to ignore or overrule the valid order of another family court judge.

Practice Point: When clients have been granted legal custody through a court order, they possess the fundamental right to make decisions about their child’s care, including decisions about third-party visitation. This right deserves the same constitutional protection as a biological parent’s rights.

Grandparent Visitation Statute Still Applies
The court held that S.C. Code Ann. § 63-3-530(A)(33), the grandparent visitation statute, applies even when grandparents seek visitation from legal custodians rather than biological parents. However, the statute’s requirements must still be met, including clear and convincing evidence of compelling circumstances to overcome the presumption that the custodians’ decision is in the child’s best interest.

The court found no such compelling circumstances in this case. Unlike cases where visitation was granted to maintain a child’s connection to a deceased parent’s family, or where evidence showed the child suffered significant harm without visitation, this case presented no evidence of harm to the child from the lack of grandparent contact.

Practical Implications
For Custodial Parents and Legal Guardians
This decision strengthens the position of legal custodians facing third-party visitation petitions. Key takeaways include:

Court orders granting legal custody carry significant weight and cannot be disregarded by subsequent family court judges
Legal custodians have the right to make decisions about third-party visitation without being required to justify those decisions
Third parties face a substantial burden in proving compelling circumstances

For Grandparents and Third Parties
The decision emphasizes the difficulty of obtaining court-ordered visitation over a custodian’s objection. Important considerations include:

Historical custody or a close relationship alone is insufficient—compelling circumstances must exist
De facto custodian and psychological parent status can expire over time
The fact that visitation might benefit the child or that the custodian’s refusal seems unreasonable is not enough to warrant court intervention

For Practitioners
Attorneys handling these cases should:

1. Carefully evaluate standing: Assess whether third-party clients truly meet the current requirements for de facto custodian or psychological parent status, not just whether they met them historically
2. Focus on compelling circumstances: If representing third parties, build a record showing actual harm to the child or other compelling circumstances, not just that visitation would be beneficial
3. Preserve custodial rights: If representing custodians, emphasize the constitutional protections afforded to their decision-making authority and the valid court orders establishing their custody
4. Consider timing: Be aware of how much time has passed since the third party served in a custodial role, as extended periods strengthen the custodian’s position

The Court’s Encouragement
While ruling in favor of the aunt and uncle, the Court of Appeals acknowledged the troubling nature of cutting grandparents out of a child’s life based apparently on the aunt’s strained relationship with her own mother. The court encouraged the aunt and uncle “to foster an ongoing relationship between B.G. and Grandparents.”

This language reflects the tension between protecting custodial rights and promoting children’s relationships with extended family. While courts cannot force visitation absent compelling circumstances, they can encourage parties to put the child’s interests first.

Conclusion
Dendy v. Gamble provides important clarification on third-party visitation rights in South Carolina. The decision reinforces that legal custodians possess robust rights to make decisions about their children, including visitation decisions, and that these rights deserve constitutional protection. While grandparents and other third parties may seek court-ordered visitation, they face a high burden of proof that requires showing compelling circumstances through clear and convincing evidence.

For families navigating these complex disputes, the decision emphasizes the importance of working together when possible while respecting the fundamental rights of those entrusted with a child’s care.

This blog post is for informational purposes only and does not constitute legal advice. If you are facing a custody or visitation dispute involving third parties, contact an experienced family law attorney to discuss your specific situation.

Klok Law Firm LLC | Family Law Attorneys | Charleston, South Carolina

By Suzanne Klok|2025-11-12T16:34:58+00:00March 15th, 2025|Family Law, Grandparent Visitation, Third-Party Visitation Rights|Comments Off on Court of Appeals Clarifies Grandparent Visitation

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Court of Appeals Clarifies Grandparent Visitation Rights in South Carolina
Dendy v. Gamble Reinforces Custodial Parents’ Rights in Third-Party Visitation Disputes

Overview
In a significant decision filed February 12, 2025, the South Carolina Court of Appeals reversed a family court’s grant of visitation to grandparents, clarifying important principles about de facto custodian status, psychological parenthood, and grandparent visitation rights. The case, Dendy v. Gamble, Appellate Case No. 2023-001358, provides crucial guidance for family law practitioners handling custody and visitation disputes involving third parties.

Case Background
The case centered on a dispute between a minor child’s grandparents and her legal custodians—the child’s aunt and the aunt’s partner. The child, B.G., was born in 2010 and initially lived with her grandparents from infancy until approximately age five. In 2015, B.G. began living with her aunt and uncle, who obtained permanent legal and physical custody through a court order in 2017 with the mother’s consent.

After a falling out in 2019 over a disagreement about the child’s haircut, the grandparents had no contact with B.G. for over a year. In 2020, they filed suit seeking custody or, alternatively, visitation. By the time of trial in 2023, four years had passed without contact, and the child expressed to the guardian ad litem that she did not wish to visit her grandparents.

The family court granted the grandparents visitation, finding they were de facto custodians and psychological parents of the child. The aunt and uncle appealed.

Key Legal Holdings
De Facto Custodian Status Has Time Limits
The Court of Appeals held that de facto custodians lose standing once they no longer discharge the duties incidental to a parental relationship. While the court declined to establish an exact timeframe for when this status expires, it found that five years after the child last lived with them, the grandparents were clearly no longer functioning as de facto custodians.

The court reviewed other states’ approaches and noted that many jurisdictions include recency requirements in their de facto custodian statutes. The underlying principle is that the status doesn’t continue indefinitely once the custodial relationship has ended.

Practice Point: Attorneys should carefully evaluate the timeline between when a third party last served as primary caregiver and when they filed their petition. Even if someone previously met the definition of de facto custodian, that status may have lapsed.

Psychological Parent Status Can Expire
The court emphasized that psychological parent status is not permanent. Once the grandparents transitioned to a traditional grandparent role and the aunt and uncle assumed parental responsibilities, the grandparents could no longer claim psychological parent status. Additionally, there was no “parental void” for the grandparents to fill once the aunt and uncle became legal custodians.

The court reiterated the four-part test from Marquez v. Caudill for establishing psychological parenthood, with particular emphasis on the requirement that the biological or adoptive parents must have consented to and fostered the parent-like relationship. Once the mother agreed to grant legal custody to the aunt and uncle, she no longer fostered a parent-like relationship with the grandparents.

Practice Point: Third parties seeking to establish psychological parent status must demonstrate not only a historical parent-like relationship but an ongoing one at the time of the petition.

Legal Custodians Have Parental Presumption
Perhaps most significantly, the Court of Appeals clarified that legal custodians are entitled to the same presumption afforded to parents—that their decisions regarding visitation are in the child’s best interest. This presumption can only be overcome by showing compelling circumstances, such as significant harm to the child if visitation is not granted.

The family court erred by treating the case as a dispute between “mere third parties” and by stating the 2017 custody order had “no priority.” The appellate court emphasized that one family court judge has no authority to ignore or overrule the valid order of another family court judge.

Practice Point: When clients have been granted legal custody through a court order, they possess the fundamental right to make decisions about their child’s care, including decisions about third-party visitation. This right deserves the same constitutional protection as a biological parent’s rights.

Grandparent Visitation Statute Still Applies
The court held that S.C. Code Ann. § 63-3-530(A)(33), the grandparent visitation statute, applies even when grandparents seek visitation from legal custodians rather than biological parents. However, the statute’s requirements must still be met, including clear and convincing evidence of compelling circumstances to overcome the presumption that the custodians’ decision is in the child’s best interest.

The court found no such compelling circumstances in this case. Unlike cases where visitation was granted to maintain a child’s connection to a deceased parent’s family, or where evidence showed the child suffered significant harm without visitation, this case presented no evidence of harm to the child from the lack of grandparent contact.

Practical Implications
For Custodial Parents and Legal Guardians
This decision strengthens the position of legal custodians facing third-party visitation petitions. Key takeaways include:

Court orders granting legal custody carry significant weight and cannot be disregarded by subsequent family court judges
Legal custodians have the right to make decisions about third-party visitation without being required to justify those decisions
Third parties face a substantial burden in proving compelling circumstances

For Grandparents and Third Parties
The decision emphasizes the difficulty of obtaining court-ordered visitation over a custodian’s objection. Important considerations include:

Historical custody or a close relationship alone is insufficient—compelling circumstances must exist
De facto custodian and psychological parent status can expire over time
The fact that visitation might benefit the child or that the custodian’s refusal seems unreasonable is not enough to warrant court intervention

For Practitioners
Attorneys handling these cases should:

1. Carefully evaluate standing: Assess whether third-party clients truly meet the current requirements for de facto custodian or psychological parent status, not just whether they met them historically
2. Focus on compelling circumstances: If representing third parties, build a record showing actual harm to the child or other compelling circumstances, not just that visitation would be beneficial
3. Preserve custodial rights: If representing custodians, emphasize the constitutional protections afforded to their decision-making authority and the valid court orders establishing their custody
4. Consider timing: Be aware of how much time has passed since the third party served in a custodial role, as extended periods strengthen the custodian’s position

The Court’s Encouragement
While ruling in favor of the aunt and uncle, the Court of Appeals acknowledged the troubling nature of cutting grandparents out of a child’s life based apparently on the aunt’s strained relationship with her own mother. The court encouraged the aunt and uncle “to foster an ongoing relationship between B.G. and Grandparents.”

This language reflects the tension between protecting custodial rights and promoting children’s relationships with extended family. While courts cannot force visitation absent compelling circumstances, they can encourage parties to put the child’s interests first.

Conclusion
Dendy v. Gamble provides important clarification on third-party visitation rights in South Carolina. The decision reinforces that legal custodians possess robust rights to make decisions about their children, including visitation decisions, and that these rights deserve constitutional protection. While grandparents and other third parties may seek court-ordered visitation, they face a high burden of proof that requires showing compelling circumstances through clear and convincing evidence.

For families navigating these complex disputes, the decision emphasizes the importance of working together when possible while respecting the fundamental rights of those entrusted with a child’s care.

This blog post is for informational purposes only and does not constitute legal advice. If you are facing a custody or visitation dispute involving third parties, contact an experienced family law attorney to discuss your specific situation.

Klok Law Firm LLC | Family Law Attorneys | Charleston, South Carolina