June 12, 2019
from Horry County Ronald R. Norton, Family Court Judge.
Whitney Boykin Harrison, McGowan Hood & Felder, LLC, of
Columbia; Carolyn R. Hills and Jennifer Darrow Hills, Hills
& Hills, PC, of Myrtle Beach, for Appellant.
Wesley Snow, Dusenbury, Snow & Evans, PA, of Florence;
Charles Edward Parrish, Charles Edward Parrish, PA, of
Conway, for Respondents.
a challenge to the family court's order permitting
grandparent visitation under subsection 63-3-530(A)(33) of
the South Carolina Code (Supp. 2019). We reject the
mother's argument the subsection is unconstitutional. We
find the grandparents satisfied the requirements of the
subsection and are entitled to have some visitation. Thus, we
affirm. However, we find it necessary to accommodate
reasonable restrictions the mother sought to impose on
visitation. In light of this finding, we modify the
Facts and Procedural History
and Tammie Bazen married in 1999 and lived in Myrtle Beach.
The marriage was unstable, with frequent separations and
accusations that Stacey was unfaithful. Their first daughter
was born in 2004. They later had a son, but he never left
neonatal intensive care and died before he was two months
old. In 2008, they had twin girls. At the time of
Stacey's death in 2013, he and Tammie were again
separated. Stacey was living at the home of his
parents-Laverne and Pansy Bazen-in Pamplico, South Carolina.
Pamplico is located in eastern Florence County, approximately
fifty miles from where the children live with Tammie in
grandparents saw the children frequently until Stacey died,
mostly in Myrtle Beach. During the periods of Stacey and
Tammie's separation, including at the time of
Stacey's death, the children would visit with Stacey at
the grandparents' home. The grandparents developed a
positive, loving relationship with the children. The children
were 9 and 5 at the time of Stacey's death.
family court found, Tammie and the grandparents "had a
great amount of animosity between them." Tammie's
relationship with the grandparents soured when the twins were
very young. After she was told Stacey was having an affair,
she discussed the situation with Stacey's father,
Laverne. Tammie felt Laverne did not support her. When Tammie
and Stacey eventually reconciled, she felt her relationship
with his parents was different. She testified, "I
didn't feel welcomed anymore. I didn't feel any
kindness. It was really kind of like hands-off; kind of --in
a way, fake to me; like they were going through the motions.
There was no true kindness." She testified the
grandparents resented her for reporting Stacey to the police
for assaulting her, and Laverne told her she "never
loved" his son.
after Stacey died, Tammie had a dispute with the grandparents
over Stacey's estate. The dispute carried over into their
communication about the grandparents seeing the children. At
one point not long after Stacey's funeral, Tammie told
the children-in the presence of the
grandparents-"Y'all won't see Pawpaw [Laverne]
any more." After that day, the grandparents saw the
children only occasionally until early 2015 when their great
grandmother passed away. After that, the grandparents did not
see the children again until Thanksgiving 2015, when they
went to Tammie's home unannounced. After a short visit
that day, Tammie told them not to show up unannounced and
said "you need to call before you come." The family
court summed up the relationship between Tammie and the
grandparents during trial, stating, "It's so
painfully obvious to the court that these people do not get
grandparents filed suit in family court in July 2016 seeking
an order pursuant to subsection 63-3-530(A)(33) requiring
Tammie to allow visitation. The case went to trial in October
2017. The family court entered an order on November 17, 2017,
granting visitation. Tammie appeals the November 2017 order.
Because Tammie challenges the constitutionality of subsection
63-3-530(A)(33), the court of appeals transferred the appeal
to this Court pursuant to Rule 203(d)(1)(A)(ii) of the South
Carolina Appellate Court Rules, which requires appeals to be
filed in the Supreme Court "where the principal issue is
one of the constitutionality of the law," and pursuant
to Rule 204(a), permitting the court of appeals to transfer
an appeal to the appropriate appellate court.
Process Clause of the Fourteenth Amendment to the
Constitution of the United States protects a parent's
"fundamental right" to make decisions concerning
the welfare and upbringing of her minor children. Camburn
v. Smith, 355 S.C. 574, 579, 586 S.E.2d 565, 567 (2003)
(citing Troxel v. Granville, 530 U.S. 57, 66, 120
S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56-57 (2000)). However,
subsection 63-3-530(A)(33) grants the family court power
"to order visitation for the grandparent of a minor
child" against the wishes of a parent if the grandparent
establishes the elements set forth in the subsection. Those
1) at least one parent must be deceased, or the parents must
be divorced or "living separate and apart in different
habitats," § 63-3-530(A)(33);
2) the parent has unreasonably deprived the grandparent of
the opportunity to visit with the child for more than ninety
days, § 63-3-530(A)(33)(1);
3) the grandparent visitation will not interfere with the
parent's relationship with the child, §
4) the family court finds by clear and convincing evidence
that the parents are unfit, or "there are compelling
circumstances to overcome the presumption that the parental
decision is in the child's best interest," §
argues subsection 63-3-530(A)(33) is unconstitutional because
it infringes on her right as a parent to decide when and
under what circumstances the grandparents may visit the
children over her objection. She also argues-even if the
subsection is not unconstitutional-the family court applied
it in her case in such a way as to unconstitutionally
infringe on her parental decision-making authority.
Constitutionality of Subsection 63-3-530(A)(33)
relies primarily on Troxel, in which the Supreme
Court of the United States found a "nonparental
visitation statute" in the State of Washington to be
"breathtakingly broad." 530 U.S. at 67, 120 S.Ct.
at 2061, 147 L.Ed.2d at 57. "Thus," the Supreme
Court held, "in the State of Washington a court can
disregard and overturn any decision by a fit
custodial parent concerning visitation whenever a third party
affected by the decision files a visitation petition, based
solely on the judge's determination of the child's
best interests." 530 U.S. at 67, 120 S.Ct. at 2061, 147
L.Ed.2d at 57-58. The Court recognized that the Due Process
Clause of the Fourteenth Amendment "'provides
heightened protection against government interference with
certain fundamental rights and liberty interests, '"
530 U.S. at 65, 120 S.Ct. at 2060, 147 L.Ed.2d at 56 (quoting
Washington v. Glucksberg, 521 U.S. 702, 720, 117
S.Ct. 2258, 2267, 138 L.Ed.2d 772, 787 (1997)), and "the
interest of parents in the care, custody, and control of
their children  is perhaps the oldest of the fundamental
liberty interests," 530 U.S. at 65, 120 S.Ct. at 2060,
147 L.Ed.2d at 56; see also 530 U.S. at 66, 120
S.Ct. at 2060, 147 L.Ed.2d at 57 (stating "it cannot now
be doubted that the Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their
children"). A plurality of four Justices stated
"the visitation order in this case was an
unconstitutional infringement on [the parent's]
fundamental right to make decisions concerning the care,
custody, and control of her two daughters." 530 U.S. at
72, 120 S.Ct. at 2063, 147 L.Ed.2d at 60. Two other Justices
concurred in the judgment. 530 U.S. at 75, 80, 120 S.Ct. at
2065, 2067, 147 L.Ed.2d at 62, 65.
the Court left open "the precise scope of the parental
due process right in the visitation context," 530 U.S.
at 73, 120 S.Ct. at 2064, 147 L.Ed.2d at 61, the Court's
plurality set out general parameters a nonparental visitation
statute should include to avoid infringement on a
parent's constitutional rights. Tammie argues- and we
agree-those parameters include "three key principles to
promote proper visitation: (1) there must exist a
'presumption that a fit parent will act in the best
interest of his or her child,' (2) the decision of a fit
parent concerning grandparent visitation is entitled
deference, and (3) the impact to the parent-child
relationship should be considered." Appellant's Br.
12 (citing and quoting Troxel, 530 U.S. at 68-70,
120 S.Ct. at 2061-62, 147 L.Ed.2d at 58-59).
63-3-530(A)(33) addresses each of the "parameters"
Tammie contends are not addressed. First, subsection
63-3-530(A)(33)(2)(b) specifically recognizes a
"presumption that the parental decision is in the
child's best interest." Second, we have repeatedly
interpreted subsection 63-3-530(A)(33) to require that the
decision of the parent-protected by Due Process-be given
substantial deference. See Marquez v. Caudill, 376
S.C. 229, 248, 656 S.E.2d 737, 747 (2008) (repeating
"the court must give 'special weight' to a fit
parent's decision regarding visitation" (citing
Camburn, 355 S.C. at 579, 586 S.E.2d at
567)). Third, subsection 63-3-530(A)(33)(2)
specifically requires the family court to find
"grandparent visitation would not interfere with the
primary argument, however, focuses on the fourth element, and
in particular, the requirement of "compelling
circumstances." Tammie argues that because the term
"compelling circumstances" is undefined, "the
statute fails to provide the necessary tailoring to withstand
[the] strict scrutiny" the Due Process Clause requires.
See In re Luckabaugh, 351 S.C. 122, 140, 568 S.E.2d
338, 347 (2002) ("Legislation restricting or impairing a
fundamental right 'is subject to "strict
scrutiny" in determining its
constitutionality.'" (quoting Hamilton v. Board
of Trustees, 282 S.C. 519, 523, 319 S.E.2d 717, 720 (Ct.
App. 1984))). She contends, "The statute effectively
permits the family court to second guess parental decisions
for any reason it wants by not providing criteria, like
harm," and the statute "improperly allows the State
to override parental decisions based on its own determination
that the circumstances presented are compelling." For
reasons we will explain in Section II B in our discussion of
each element in the factual context of this case, we reject
we find subsection 63-3-530(A)(33) is not unconstitutional.
See Marquez, 376 S.C. at 249, 656 S.E.2d at 747
(stating "we have already ruled that the grandparent
visitation statute is not facially invalid because it can be
constitutionally applied in the appropriate
circumstances" (citing Camburn, 355 S.C. at
579-80, 586 S.E.2d at 568)).
Subsection 63-3-530(A)(33) as Applied
finding subsection 63-3-530(A)(33) is constitutional means
that if the subsection is applied correctly, there will be no
unconstitutional infringement on the parent's fundamental
right to make decisions concerning the welfare and upbringing
of her minor children. If the subsection is not applied
correctly, however, there could be such an unconstitutional
deprivation. Because we review substantive decisions of the
family court de novo, Stoney v. Stoney, 422 S.C.
593, 596, 813 S.E.2d 486, 487 (2018), we proceed to ensure
the subsection is applied correctly in this case by examining
each of the elements the grandparents must satisfy.
death satisfies the first element. The remaining elements will
require more analysis.
the second element, we find Tammie deprived the grandparents
of the opportunity to visit. Officially, Tammie contends she
is willing to permit visitation. In her answer, Tammie denied
the allegation she did not allow Laverne and Pansy to visit
their grandchildren. She testified she never said
"no" when they requested visitation. While she
admitted she is "not accommodating them the way they
would like for me to," she testified she has "no
issues" with them calling and visiting the children. As
the family court found, "[Tammie] stated several times
that she had no objection to the grandparents seeing the
children at extracurricular functions, school functions,
visits at or near the vicinity of the children's home,
and had no issue with the children having telephone contact
with the grandparents."
reality, however, Tammie has consistently refused to permit
the grandparents to visit with the children. Laverne and
Pansy both testified they attempted to call and visit on
numerous occasions. Tammie conceded this in her testimony.
However, Tammie repeatedly refused to accept or return their
calls when they tried to schedule a visit. On several
occasions, they called and asked one of the children to check
with Tammie for permission to visit, but Tammie never
responded. Even at trial Tammie resisted allowing visitation.
When asked whether she would be willing to provide the
grandparents with a calendar of school and extracurricular
functions so the grandparents could attend, Tammie repeatedly
stated they could find that information on "the
family court found Tammie "has . . . denied the
grandparents opportunity to visit with the minor children by
failing to allow communications." We agree with that
finding. Tammie claims she is willing to allow visitation.
Nevertheless, the grandparents have not been able to see the
children since Thanksgiving 2015, except on a few occasions
when they showed up unannounced at the children's home or
at sporting events, despite Tammie's admonition against
to the second element, we must consider whether Tammie
depriving the grandparents the opportunity to visit the
children has been unreasonable. The family court found
Tammie's denial was unreasonable, and we agree. Tammie
testified, "I know they love [their grandparents]."
The guardian wrote in her report, "There is certainly a
benefit to maintaining a connection and contact between the
girls and their father's side of the family." Tammie
explained the children had a hard time getting over the death
of their father and described her own efforts to ensure
"the girls would never forget their father." Tammie
testified she frequently needs someone to stay with the
eldest daughter or the twins while she is out with one of the
others. The children's grandparents could easily fill
this role, and they have clearly indicated their eagerness to
serve it. There are, therefore, several reasons Tammie should
welcome and encourage visitation.
important question for the "unreasonably"
requirement of the second element, however, is whether Tammie
has any reason to prevent the visitation. If she has a
legitimate reason to do so, the Due Process Clause and
subsection 63-3-530(A)(33) require that her reasonable
decision be honored. In Camburn, for example, the
mother refused visitation with the grandparents "because
she felt it was not a 'healthy environment.'"
355 S.C. at 577, 586 S.E.2d at 567. We stated, "She
objects that Grandfather drinks, uses abusive language, and
denigrates the children's fathers. Because Grandfather
was physically and mentally abusive to her when she was a
child, she does not consider him her father."
Id. Refusing visitation under those circumstances
was reasonable, and in Camburn we upheld the
mother's refusal on that basis. 355 S.C. at 580, 586
S.E.2d at 568; see also Brown v. Key, 425 S.C. 490,
498, 823 S.E.2d 212, 216 (Ct. App. 2019) (finding the
mother's decision to ...