November 8, 2018
From Aiken County Dale Moore Gable, Family Court Judge
Austin Katonak, of Law Office of Brian Katonak, PA, of Aiken,
Bradford M. Owensby, of Brad Owensby Law Firm, L.L.C., of
Aiken, for Respondent.
Key (Mother) appeals the family court's order mandating
visitation between her child (Child) and Child's paternal
grandmother, Lori Brown (Grandmother). Mother maintains the
family court erred in finding Grandmother established her
right to visitation pursuant to section 63-3-530(33) of the
South Carolina Code (Supp. 2018). We reverse.
and Grandmother's son, Justin Cantwell (Father), dated
when they were teenagers. Child is a product of that
relationship, born in March 2012. In April 2013, when Child
was a little over one year old, Father was killed in a car
accident. Approximately two weeks prior to Father's
death, the relationship between Father and Mother became
strained as it appeared Father had become involved with
another girl. The relationship between Mother and Grandmother
had also become strained as it appeared Grandmother may have
been promoting this new relationship. Prior to that time,
Mother and Father had spent some time together at
Grandmother's home, and after Child was born, Mother and
Child would come to Grandmother's house to spend time.
Mother and Child would occasionally spend the night at
Grandmother's house, but about half of that time,
Grandmother left to spend the night with her boyfriend.
Father's death, the relationship between Mother and
Grandmother further deteriorated. For reasons that are not
entirely clear, Mother opened a probate case for
Father. Notice regarding this matter was received
by Grandmother immediately following Father's funeral-a
matter that greatly upset Grandmother. A few weeks later,
Mother sent a letter to Grandmother stating the probate case
was being dropped and neither she nor Child desired anything
from Father's estate. According to Mother, this was in
response to harassment from Grandmother about the case. The
letter also stated, "If you would like to check on
[Child] or set up a time to see [Child], you can contact my
parents at 803-[XXX-XXXX] or 803-[XXX-XXX]." Mother and
Child lived with Mother's parents at all relevant times
in this case.
record demonstrates the parties communicated primarily via
text messages.Mother offered to let Grandmother visit
with Child on several occasions but wanted those visits to be
supervised. Mother testified this was because Child did not
have a particularly close bond with Grandmother and because
significant tension existed between the parties after several
incidents. Mother testified she offered to let
Grandmother visit with Child at least once a month for the
year after Father's death. Grandmother filed a complaint
against Mother in February of 2014 seeking unsupervised
testified she could not specifically recall the date she
first contacted Mother about seeing Child but indicated she
had texted Mother and Mother's mother, Lisa Day,
regarding her desire to visit with Child in the months after
Father's death. However, none of those text messages
resulted in a visit and the exchanges often deteriorated into
an argument. Specifically, in June 2013, Grandmother texted
Mother, asking "Can I pick [Child] up Saturday and keep
her two hours?" Either Mother or Mrs. Day responded:
"I understand nobody has asked to see [Child] but
Billyand he meets us and comes here. The one
time that you asked." The record does not reveal any
further communication from Grandmother at that point, but the
parties agree a visitation did not occur. Grandmother
testified she sent a text on June 28 seeking to pick up Child
and spend a few hours together but received no response. At
some point, Mother texted Grandmother stating "This is
Heather and I told you from now on it has to be supervised.
I'm not trying to be mean, but she's still young and
you haven't been around her but a few times." In
another text, Mother stated, "so you want to see
[Child]. Can be supervised. Let me know. Bye."
Grandmother responded, "I will not be supervised."
Mother also offered to let Grandmother and her boyfriend
visit Child at Grandmother's sister's home.
Grandmother responded she did not get along with her sister
and would just let the judge decide.
Halloween of 2013, Grandmother requested to see Child and
told Mother if she did not hear from her by 2 p.m. she was
going to take the case to court. Mother responded that
"because you don't want - - want to have somebody
around, you can come by the house if you want to bring her
something before I take her trick or treating."
According to Grandmother, she did not go to Mother's
house to visit because she was advised by her attorney not to
do so. Two days later, Grandmother contacted the Department
of Social Services (DSS) to do a well-being check on
the months after Father's death, Child visited with other
members of Father's family-all supervised and with
Mother's support. Grandmother did visit with Child in
November 2014 as part of the mediation process in this case
and that visit went reasonably well. Grandmother testified a
second visitation was set for December 2014 but when she
arrived Mother and Child were not there. Mother testified her
understanding was that the parties would evaluate how the
November visitation went and then determine whether to have a
second visitation. Mother testified she was not contacted by
her attorney about a December visitation.
family court determined Mother had unreasonably denied
visitation with Grandmother for a period exceeding ninety
days and "there are compelling reasons for allowing
grandparental visitation; to wit, this is the only child of
grandmother's deceased child and the child will likely
not know her or her father or the child's paternal family
unless visitation is ordered." The family court ordered
visitation for every fourth weekend of the month from
Saturday at 10 a.m. until Sunday at 6 p.m. This appeal
appeal from the family court, this court reviews factual and
legal issues de novo. Simmons v. Simmons, 392 S.C.
412, 414, 709 S.E.2d 666, 667 (2011); see also Lewis v.
Lewis, 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011).
"Although this court reviews the family court's
findings de novo, we are not required to ignore the fact that
the [family] court, who saw and heard the witnesses, was in a
better position to evaluate their credibility and assign
comparative weight to their testimony." Sanders v.
Sanders, 396 S.C. 410, 415, 722 S.E.2d 15, 17 (Ct. App.
2011). "The burden is upon the appellant to convince
this court that the family court erred in its findings."