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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 111567
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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My son and s wife are seperating under South Carolina law.

Customer Question

My son and his wife are seperating under South Carolina law. Son SSgt in Air Force is being deployed at the end of the month. His wife seperated from the Air Force Active Duty when their child was born in May. Wife is college educated with military experience and now in the Air Force Reserves. She keeps taking off with the child to West Virginia where her family lives and we as grandparents live. So no date of sepertion can be established and my son is running out of time to react. If she decides to remain in WV after he has deployed can I seek Grandparent visitation during his deployment. She is under the belief that she does not have to work and he must provide them with everything he makes during this year of seperation. Which will be when she decides to leave or he leaves. The baby is 4 months old and we have had relationship prior.
Submitted: 1 year ago.
Category: Family Law
Expert:  Samuel II replied 1 year ago.

Hello

This is Samuel and I will discuss this and provide you information in this regard.

I suggest, you can file for the Grandparent visitation, as you can show you had a relationship and a forming bonding with the baby.

However, you must file in the state and county where the child has live for the past 6 months. And since the child is only 4 months, then in the state and county where the child was born. Therefore, it appears you need to file in SC. You can read the SC law in this regard at this Link under S.C. Code § 63-3-530 (A)(33)

(33) to order visitation for the grandparent of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats, if the court finds that:

(1) the child's parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding ninety days; and

(2) awarding grandparent visitation would not interfere with the parent-child relationship; and:

(a) the court finds by clear and convincing evidence that the child's parents or guardians are unfit; or

(b) the court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child's best interest.

The judge presiding over this matter may award attorney's fees and costs to the prevailing party.

I suggest that in your Petition you can note that the Mother has family nearby in W Va and that you have requested to have visits with the child when she visits but the Mother has declined.

I also suggest that you might consider writing the Mother a letter making that request to visit with your grandchild when she is in W Va. , citing the SC law and state that if she is not amenable to allowing the visits without the court's order, you are prepared to bring the petition to the SC courts and you will request the court order her to pay your legal expenses in this regard. Mail that letter certified with a return receipt so you can show the court you made the request and she did indeed get the request, but has ignored it.

Please let me know if you have other questions in this regard. Keep in mind, I can only answer and provide information for what you ask. I do not know what you need to know, unless you tell me. Please rate positive as this is how I get credit for my time and information.

Thank you

Customer: replied 1 year ago.
I had stated that I had read the law in both states. I have texted her requesting visitation.
Customer: replied 1 year ago.
I paid 36.00 for info that I stated to you?????
Expert:  Samuel II replied 1 year ago.

Thank you. I can only answer what you ask and I always like to provide accurate information And you asked, as I understand it - if you could file in W. Va. That answer is no unless the child has lived there for at least 6 months. You must file in SC. I am in the habit of always providing law to back up my answers. And yes, you said you read the law - but I really do not know if you read the correct law. So I like to provide the accurate information

If, however, you are not satisfied with my true, detailed answer to your concern, please DO NOT rate this and I will opt out and your deposit will remain in tact.

Just let me know. Thank you

Expert:  Samuel II replied 1 year ago.

I could have just simply said "NO" you cannot file in W Va and then you would have followed up and said why not - or maybe you would have been happy with a simply answer. I do not know what you really know or need to know to fully understand how the law works. In that regard, I always provide more information than asked.

Expert:  Samuel II replied 1 year ago.

But now I will opt out and perhaps another attorney professional here will assist you further. Good luck with everything.

Customer: replied 1 year ago.
But I also stated the mother and child are moving back to WV
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

I am a DIFFERENT CONTRIBUTOR.

Your previous contributor was correct in that until the child and mother are actually residing in WV for the 6 months continuously, you cannot file there. Once they are living there, then the issue becomes whether or not the SC court retains jurisdiction on the case, since that is the court where they filed the custody/divorce action in first and they retain jurisdiction over child custody.

Grandparents rights could be a separate action filed in WV once she is living there for the requisite time. However, you need to know that the US Supreme Court has essentially gutted the grandparents rights laws based on their decision in TROXEL V. GRANVILLE (99-138) 530 U.S. 57 (2000). The US Supreme Court has stated that the rights to make decisions for the child are fundamental rights (basic civil rights) of the biological parents and they cannot be interfered with unless the parents are found to be unfit by clear and convincing evidence. So what grandparents rights you get will be based on any custody rights your son obtains in SC in the divorce proceeding. If she gets sole custody, then the US Supreme Court states she has the right to deny you visitation. If your son gets "joint custody" (even joint with her as primary physical custodian), he has a right in the legal decisions for the child and he can decide you should be able to visit with the child and if she refuses, then you can go to court based on your son's decision, with your son (or his attorney) to seek to enforce his decision to allow you to visit with the child.

However, if this case is filed in SC, you have to get the order in SC, because the WV court cannot take jurisdiction away from the SC court even if she is moving and living in WV unless the SC court agrees to relinquish jurisdiction. If the SC court agrees to give up jurisdiction, then you can file for grandparent visitation with your son and through your son's joint custody decision making rights.

These cases get very complicated thanks to the US Supreme Court decision making this a civil right of parents (not grandparents), so you would need to start this now with the SC court in the custody case, where your son has to get the SC court to put in the custody order that he has the right to grant you visitation in his absence and get the SC court to put that in the custody order. Then you can take that SC custody order and file it in WV with a petition to recognize and enforce foreign judgment and if the mother does not comply with the judgment, you can go through the WV court to make them enforce it against her.

You cannot do this pro se, you will need an attorney or your son's attorney in SC to get this started and then to enforce it in WV if you need to, you would need a WV attorney to file the judgment and seek enforcement there.

Customer: replied 1 year ago.
In SC you must be seperated for one year in order to obtain a divorce. My so had just been informed that he is being deployed for 6 months as stated in original question. He has no problem with us and visitation. By the time I wait for SC law which states I must wait 90 days before I can file and then go through the process he will be home. At this point my son is not even getting to see his daughter because she keeps taking off with her. Time is critical here he could leave any day and is trying to do as much as possible. Thank you but I would like to opt out. The issue of her stating she doesn't have to work or seek employment which was part of my question was never addressed
Expert:  Law Educator, Esq. replied 1 year ago.

Thank you for your reply.

The problem is that once the case was filed in SC, the SC case has jurisdiction. If they did not file yet in SC, then your son can get an attorney and file for divorce and custody in WV and you can seek visitation through that action in WV.

You are asking for something that cannot be done and whether you like the way the laws are set up or not, we can only tell you what they are.

She does not have to work or seek employment, there is no law mandating she does so. The court, in the divorce if the court finds she can work, then the court can deny her spousal support and can impute income to her for purposes of calculating child support, but they cannot force her to work in any other way. The court will impute income to her based on what she could make and she will still be liable for her share of child support based on that imputed income and your son would be liable for his share based on his income. So the court will not generally let her off without working when she is voluntarily unemployed or under employed and can work.

Time is critical for you, but not for the court I am afraid and as the court states, just because time is a factor for a party in the case it does not make it an emergency for the court, because your son's case could continue to be handled through his attorney.

I am sorry that you feel otherwise, but the laws have been explained here, you are going to have to go through the legal process to get what you are seeking.