Rights of Biological Parents vs. Third Parties (like grandparents)

Generally, there is a presumption in favor of a biological parent having custody of his or her child. The South Carolina Supreme Court has long recognized a biological parent’s superior rights over those of third parties with regard to custody, in the absence of a showing that the biological parent is unfit. Kay v. Rowland, 285 S.C. 516, 331 S.E.2d 781 (1985), citing McDowell v. Richardson, 279 S.C. 268 (1983).

For grandparents seeking custody of grandchildren, the question then, is whether the biological parent is unfit to have or retain custody of the children.

Evidence that the parents were drug users and drug dealers, see Baker v. Wolfe, 333 S.C. 605 (Ct. App. 1998), was sufficient to show the biological parent to be unfit to have custody.

South Carolina also has a “de facto custodians” statute, which gives standing to third parties seeking visitation or custody of children when the third parties have been the primary caregivers of children for specified periods of time, if the natural parents are unfit or other compelling circumstances exist. The statute can be found at section 63-15-60 of the South Carolina Code.

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