Grandparents Visitation Rights

Litigation In Family Court: Why Does It Take So Long?

Ever wonder why litigation in family court takes so long?  A recent experience I had is a perfect example of how the family court system actually encourages the litigation that has caused our courts to have one of the highest backlogs in the nation. 

Mom and Dad got divorced in January of this year after a lengthy and contested divorce. Dad (my client) and Mom have been doing a wonderful job co-parenting their small child ever since. The child has been adjusting remarkably well to the new family arrangement thanks to Mom and Dad putting the child’s well being before their personal issues.

Two weeks ago, Mom and Dad were served with a Complaint in family court filed by an attorney representing Mom’s parents (the Grandparents of their child). The Grandparents were not happy with the time they were getting to spend with the child, so they filed a lawsuit to try to get a family court judge to order Mom and Dad to give them visitation. A Temporary Hearing was scheduled by Grandparent’s Attorney to try to get temporary visitation ordered prior to a trial on the merits (which could not be scheduled for over one year due to a huge backlog of pending cases).

I was stunned by the lawsuit. Mom and Dad were just starting to get back on their feet and were model “post divorce” parents. They have limited funds and the last thing they needed was this lawsuit. Fortunately, I thought, the law regarding Grandparents visitation rights was clearly on their side.

In Troxel v. Granville the United States Supreme Court ruled that parents have a protected liberty interest in the care, custody and control of their child. The court declared that this is a fundamental right granted to parents by the Due Process Clause of the United States Constitution. The court found that for so long as the parents adequately care for their child, there is no reason for the state to interfere with the parent-child relationship.

In addition, South Carolina Supreme Court ruled in Camburn v Smith that the only way for Grandparents to overcome a “fit” parents decision was to show compelling circumstances, such as significant harm to the child, if visitation was not granted.

Dad had provided me excellent affidavits in support of his position that the Grandparents should only spend time with the child at times when Mom and Dad feel appropriate. One of Dad’s witnesses was even a pediatrician employed by Duke University who spoke of the wonderful job Mom and Dad were doing raising their child!

Furthermore, Grandparents lawyer did not even know how to properly plead the allegations he made against Mom and Dad. No allegation was made by the lawyer that the parents were not fit to raise their child. Nor did the lawyer allege any “compelling circumstances” showing how the child would be harmed if visitation was not granted to them. He simply stated that they loved their grandchild and wanted the court to order a regular visitation schedule for them.

I filed a motion to dismiss Grandparents lawsuit for “failure to state facts sufficient to support a cause of action” pursuant to our Rules of Civil Procedure. I had excellent facts on my side, controlling law from both the United States and South Carolina Supreme Courts, and a Complaint that failed to state the required elements of Grandparents claim. I was confident that the matter would be dismissed at the Temporary Hearing and that Grandparents would be required to reimburse Dad for the fees he had paid me to defend the lawsuit ($2,500).

At the Temporary Hearing the judge denied the Grandparents request for temporary visitation. However, the judge did not dismiss the lawsuit, but instead appointed a Guardian ad Litem, ordered the parties to engage in discovery pursuant to the rules of civil procedure and required mediation. In essence, the judge ordered the parties to engage in litigation over the Grandparents claims.

Mom and Dad are now running up credit card debt to defend against Grandparents lawsuit. Grandparents will certainly lose their case, but in the meantime they will cause a great deal of emotional and financial suffering to Mom and Dad. How in the world is this a good thing for the child?

Our judges have the authority to be “gatekeepers” over the cases being presented to them for litigation. A frivolous lawsuit in family court, such as the one filed by the Grandparents, has huge repercussions to members of our community. At this early stage in Grandparent’s case Mom and Dad have missed work, they have had to collect Affidavits from friends, co-workers, the child’s teachers and doctors proving their fitness to be parents. They now must contend with a Guardian and protracted litigation. No other kind of case in the legal system will effect members of our community to the same extent as a family court case.

In addition to the emotional and financial suffering with which Mom and Dad are now forced to contend, another case has been added to the court’s docket! Another case must now be forced through a system with one of the highest backlogs of any court system in the United States. Another case is now in the system that will further add to delays for litigants who have legitimate issues needing resolution by our family court judges.

The easy decision for the judge in my case was to let the litigation proceed. The difficult decision would have been to dismiss the Grandparent’s allegations as unfounded and not properly presented to the court.  We pay our judges a lot of money and provide them with excellent benefits, including a lifetime pension upon retirement. In return, we are owed more than simply letting every lawsuit filed in the family court to proceed through the litigation process.

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