Bazen v. Bazen ( 2019 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Laverne Bazen and Pansy Bazen, Respondents,
v.
Tammie Bazen, Appellant.
Appellate Case No. 2018-000337
Appeal from Horry County
Ronald R. Norton, Family Court Judge
Opinion No. 27925
Heard June 12, 2019 – Filed October 30, 2019
AFFIRMED AS MODIFIED
Whitney Boykin Harrison, McGowan Hood & Felder,
LLC, of Columbia; Carolyn R. Hills and Jennifer Darrow
Hills, Hills & Hills, PC, of Myrtle Beach, for Appellant.
Stuart Wesley Snow, Dusenbury, Snow & Evans, PA, of
Florence; Charles Edward Parrish, Charles Edward
Parrish, PA, of Conway, for Respondents.
JUSTICE FEW: This is 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 visitation schedule.
I. Facts and Procedural History
Stacey 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 Myrtle Beach.
The 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.
As the 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.
Soon 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 along."
The 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.
II. Analysis
The Due 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 elements are:
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, § 63-3-530(A)(33)(2);
and
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," § 63-3-
530(A)(33)(2)(a), (b).
Tammie 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.
A. Constitutionality of Subsection 63-3-530(A)(33)
Tammie 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.
Although 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).
Subsection 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)).1 Third, subsection 63-3-
530(A)(33)(2) specifically requires the family court to find "grandparent visitation
would not interfere with the parent-child relationship."
Tammie's 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
1
In Camburn, we referenced the Supreme Court's criticism in Troxel of the State of
Washington nonparental visitation statute's failure to require any "special weight"
be given to a fit parent's determination of the children's best interests. 355 S.C. at
579, 586 S.E.2d at 567 (quoting Troxel, 530 U.S. at 69, 120 S. Ct. at 2062, 147 L.
Ed. 2d at 58).
(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 Tammie's argument. 2
Therefore, 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)). 3
B. Subsection 63-3-530(A)(33) as Applied
Our 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
2
Tammie also argues "the statute does not require any evaluation of the petitioning
grandparent, including whether a grandparent is a fit caregiver." We disagree. A
family court must consider the fitness of a grandparent in determining whether the
denial of visitation, or any limitation, is unreasonable under the second element. See
Camburn, 355 S.C. at 580, 586 S.E.2d at 568 (relying on evidence of grandparent
unfitness in finding the mother's decision to deny visitation was reasonable).
3
Subsection 63-3-530(A)(33) has been overhauled since our decisions in Camburn
and Marquez. In 2010, the subsection was amended to include for the first time
requirements of "unreasonably depriving" visitation and "compelling
circumstances" to overcome the presumption in favor of a fit parent's decision. Act
No. 267, 2010 S.C. Acts 1920, 1921. The subsection was amended in 2014 to
eliminate the additional 2010 requirement "the grandparent maintained a
relationship similar to a parent-child relationship with the minor child." Act No.
270, 2014 S.C. Acts 2524, 2524; see Grantham v. Weatherford, 425 S.C. 111, 116,
819 S.E.2d 765, 767-68 (Ct. App. 2018) (quoting the 2010 version).
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.
Stacey's death satisfies the first element.4 The remaining elements will require more
analysis.
As to 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."
In 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 website."
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
4
As we will explain in our discussion of Marquez below, Stacey's death is relevant
to the fourth element. However, it "satisfies" only the first element.
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 doing so.
Also as 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.
The 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 limit
visitation was reasonable where she "wanted the visitation supervised because of the
hostility between the parties following Father's death and because Child was young
and had not spent much time with Grandmother").
The burden of proving the unreasonableness of Tammie's behavior is on the
grandparents. However, nothing in this record suggests any reason Tammie may
have for denying visitation as she has done. We see no basis for legitimate concern
over the fitness of the grandparents, or their ability to adequately supervise the
children during visits. The family court found Tammie "was allowing her feelings
about the grandparents to interfere with what may be in the best interests of the
children." Animosity against the grandparents is not a valid reason to deny them
visitation. While we are careful to keep the burden of proof on the grandparent
seeking visitation, a reasonable denial of visitation must have some basis in the
parent's view of the best interest of the child.
We pause here to stress that whether a parent's decision to deny visitation is
unreasonable is not dispositive of a subsection 63-3-530(A)(33) analysis. It is only
one of the elements. The grandparents must still establish the other elements. As
we stated in Marquez, "The fact . . . the parents refusal is simply not reasonable . . .
does not justify government interference in the parental decision." 376 S.C. at 249,
656 S.E.2d at 747. We find, however, the second element is satisfied in this case
because Tammie has been "unreasonably depriving the grandparent[s] of the
opportunity to visit with the child[ren]."
As to the third element, there is no evidence anywhere in this record that grandparent
visitation will interfere with Tammie's relationship with her children. Nor has
Tammie argued that it might. In fact, the only indication in this record is that a
healthy relationship between the children and their paternal grandparents will be
good for the children and will not interfere with Tammie's relationship with her
children.
We now turn to the pivotal issue in this case, the fourth element. No one questions
Tammie's fitness as a parent. Therefore, the grandparents must satisfy this element
with clear and convincing evidence of "compelling circumstances" to overcome the
presumption in favor of a fit parent's decisions about her children. We begin our
discussion of this element by addressing two legal arguments Tammie makes
concerning what circumstances may be sufficiently "compelling" to avoid
infringement of her constitutional rights.
First, she argues the undefined term "compelling circumstances" leaves the family
court with "ungoverned" discretion to second-guess sound decisions of a fit parent.
We disagree. We have construed the term "compelling circumstances" narrowly—
and will continue to do so—in light of the constitutional rights it is designed to
protect. See, e.g., Camburn, 355 S.C. at 579, 586 S.E.2d at 568 ("The fact that a
child may benefit from contact with the grandparent, or that the parent's refusal is
simply not reasonable in the court's view, does not justify government interference
in the parental decision."). 5 As the remainder of our discussion will demonstrate, a
family court may not overrule a fit parent's decision and impose grandparent
visitation based on its own view of the child's best interests, or its own conception
of what is a compelling circumstance.
Second, Tammie argues we should overrule Marquez to the extent it holds the death
of a parent is a "compelling circumstance" to justify invalidating a parent's decision
regarding visitation. We believe Tammie reads Marquez too broadly. Marquez was
"an extremely close case," 376 S.C. at 250, 656 S.E.2d at 748 (Toal, C.J., concurring
in part), with remarkably unique circumstances. 6 In those unique circumstances, we
stated "a biological parent[']s death and an attempt to maintain ties with that deceased
parent[']s family may be compelling circumstances justifying ordering visitation over
a fit parent[']s objection." 376 S.C. at 249, 656 S.E.2d at 747 (emphasis added). It
was the need to "maintain ties" for the benefit of the children in the unique
circumstances—not merely the death of the mother—that drove our decision in
Marquez. Marquez does not stand for the proposition that a biological parent's death
5
See infra note 7.
6
The mother had one very young child before she married David Caudill. 376 S.C.
at 233, 656 S.E.2d at 739. The father of that child was never involved, and his
parental rights were terminated. 376 S.C. at 234, 656 S.E.2d at 739. Five years after
the mother married David, they had a child together. 376 S.C. at 233, 656 S.E.2d at
739. When the second child was almost four, the mother committed suicide. Id. At
the time of her death, she and David were separated, and David had pending an
action for custody of both children. 376 S.C. at 234, 656 S.E.2d at 739. When the
mother died, the grandmother sued for custody. 376 S.C. at 233, 656 S.E.2d at 739.
The first child "consistently had behavioral problems." 376 S.C. at 236, 656 S.E.2d
at 740. Two guardians "testified [the children] should not be divided." 376 S.C. at
239, 656 S.E.2d at 742. In these unique circumstances, the family court permitted
David to adopt the first child, and awarded him custody of both children. 376 S.C.
at 234, 656 S.E.2d at 739. The court then proceeded to analyze whether the
grandmother should have visitation, "analyz[ing] the visitation issue as if the
Stepfather is the biological father." 376 S.C. at 247, 656 S.E.2d at 746. The facts
and circumstances of Marquez bear little relationship to the facts here.
alone may be a compelling circumstance. 7 There is, therefore, no reason to question
our decision in Marquez.
Many courts have recognized "significant harm" to a child resulting from
unreasonably deprived grandparent visitation as a compelling circumstance. See,
e.g., Marquez, 376 S.C. at 249, 656 S.E.2d at 747 (reciting "significant harm to the
child" as an example of a "compelling circumstance"); Camburn, 355 S.C. at 579,
586 S.E.2d at 568 (same); see also Blixt v. Blixt, 774 N.E.2d 1052, 1060 (Mass.
2002) (requiring "the grandparents must allege and prove that the failure to grant
visitation will cause the child significant harm"); Williams v. Williams, 501 S.E.2d
417, 418 (Va. 1998) (interpreting Virginia nonparental visitation statute to require
finding of harm to the child from denial of visitation as condition precedent to
awarding visitation).
Here, there is no allegation—and no proof—that denial of visitation to the
grandparents will cause significant harm to the children. The family court did not
specifically identify any compelling circumstance in this case. Rather, the family
court relied on an overbroad interpretation of Marquez, stating,
The Court in Marquez . . . held that "a biological parents
death and an attempt to maintain ties with that deceased
parents family may be compelling circumstances
justifying ordering visitation over a fit parents objection."
In the present case we appear to have just that situation of
the death of a parent. It is also established . . . the parties
are unable or unwilling to communicate with each other
and all three of the children have expressed a desire to visit
with their paternal grandparents.
Unlike in Marquez, however, the family court in this case did not explain any reason
there is a need to maintain ties for the benefit of the children. Without such an
7
We decided Marquez in 2008, before the Legislature amended subsection 63-3-
530(A)(33) to include the requirement of a "compelling circumstance." See Act No.
267, 2010 S.C. Acts at 1921. However, this Court has enforced the "compelling
circumstance" requirement since 2003, when we decided Camburn. 355 S.C. at 579,
586 S.E.2d at 568.
explanation based on specific circumstances, the simple facts a parent died, the
mother is "unwilling to communicate," and "the children have expressed a desire to
visit" do not satisfy the fourth element. Thus, we do not agree that this finding by
the family court is a "compelling circumstance" sufficient to justify overruling
Tammie's decision.
Fulfilling our duty to conduct a de novo review, Stoney, 422 S.C. at 596, 813 S.E.2d
at 487, we proceed to examine whether the grandparents established compelling
circumstances by clear and convincing evidence. As we explained above, Tammie
has consistently said she consents to visitation at the same time she has consistently
refused to permit it. Certainly, Tammie is aware the courts may order visitation only
if she refuses it. With this knowledge, she attempted to keep the courts from getting
involved by pretending to consent. Tammie insists the grandparents must call to get
permission to come to her house to see the children, knowing she will then refuse to
answer the phone. This is one example of how Tammie has manipulated the judicial
process for the purpose of preventing the grandparents from seeing the children. See
Brown, 425 S.C. at 498, 823 S.E.2d at 217 (recognizing the danger that "a parent can
circumvent the statute by intentionally and disingenuously thwarting a grandparent's
ability to meet the statutory requirements—for example, by . . . intentionally offering
visitation when parent knows grandparent cannot be available").
At oral argument before this Court, counsel for the grandparents moved to
supplement the record with the family court's September 2018 order finding Tammie
in contempt for continuing to refuse to allow visitation. By subsequent written order
of the Chief Justice, we granted the motion. In the contempt order, the family court
found Tammie "willfully failed to comply" with the November 2017 order. The
family court also found the following,
• "As of [August 20, 2018], despite repeated timely requests
for visitation by [the grandparents], there has been
absolutely no visitation between [the grandparents] and
their grandchildren;"
• Tammie refused to provide the grandparents a calendar of
the children's activities, as required by the November 2017
order;
• "[Tammie] continues to be opposed to visitation . . . and
. . . her opposition is exacerbating the situation. [The
grandparents] have attempted to work with [Tammie] to
try to obtain even limited visitation. . . . [A]fter [the
grandparents'] attempt to coordinate weekend visits were
reportedly thwarted by [Tammie], [they] offered to come
to Myrtle Beach on Father's Day of last year and merely
take their grandchildren to lunch in the Myrtle Beach area,
[Tammie] denied them even that opportunity."
• "It is clear [Tammie] has no intent to comply" with the
November 2017 order.
We are mindful that families often do not get along, even under the best of
circumstances. In the course of such struggles, family members are not always
honest with each other. Ordinarily, deceptive behavior within families is beyond the
power of the court to address. Deceptive behavior must end, however, when family
members bring their disputes into the court system. Tammie's repeated
representations to the family court—and in turn to this Court—that she welcomes
visitation, when in fact she refuses it, is unacceptable.
We agree with the family court that Tammie "has unreasonably denied the
grandparents opportunity to visit with the minor children by failing to allow
communications through the house phone or her cell phone." We find her
intentional, deceptive, and now contemptuous behavior—designed to appear
accommodating and cooperative while calculated to prevent the visitation she claims
to accept—is an intentional effort to keep the court from fulfilling its responsibility
under subsection 63-3-530(A)(33) and the Due Process Clause.
Our concern over Tammie's behavior goes beyond the fact she intentionally deceived
the court. Her behavior has directly and adversely affected the welfare of the
children. She damaged the children's previously positive and loving relationship
with their grandparents. More significantly, Tammie's deliberate attempt to remove
the family court from its proper role as arbiter of this dispute, combined with her
own refusal to communicate with the grandparents, put the children in the
unwelcome role of peacemakers between their grandparents and their mother. This
has been particularly true with the eldest daughter. In one instance, for example, she
sent a text message to her grandfather essentially asking him not to push visitation
because she was afraid it would upset her mother. She texted, "Please stop. . . .
You're breaking a part of -- a part of my family. I love you, but you're hurting my
mom so much, and she needs -- means everything to me." As the family court found
in the September 2018 contempt order, Tammie's refusal to comply with the
November 2017 order "is exacerbating the situation."
Tammie's use of deception to keep the family court from fulfilling its duty to manage
this dispute, and her continued refusal to comply with the November 2017 order,
places her daughters in the completely inappropriate role of mediating the dispute
between her grandparents and her mother. No child should ever be placed in such a
position.
We find Tammie's intentional, deceptive, and contemptuous behavior—that not only
cut off the relationship between the grandparents and the children, but also made
them proxies for communication between Tammie and the grandparents—is a
compelling circumstance that justifies the State to intervene, and to order that
Tammie permit the grandparents to have visitation with the children.
C. Visitation Schedule
We now turn to the question of what is the appropriate visitation schedule in this
case. We begin by observing that grandparent visitation is not the same as visitation
for a parent. See Dodge v. Dodge, 332 S.C. 401, 416, 505 S.E.2d 344, 352 (Ct. App.
1998) (finding grandparent visitation "is not the same situation as when the court
awards reasonable visitation to a noncustodial parent"). Family courts do not defer
to the preferences of a custodial parent in deciding visitation for a noncustodial
parent. For grandparent visitation, however, courts must give deference to the
judgment of the parent. Just as a court must defer to a parent's decision on the fact
of grandparent visitation, a court must also defer to reasonable limitations or
conditions a fit parent chooses to impose on grandparent visitation.
In Troxel itself, the question was not the fact of grandparent visitation, but whether
the court may overrule the parent's decision on limitations to visitation. See 530
U.S. at 61, 120 S. Ct. at 2058, 147 L. Ed. 2d at 54 ("Granville did not oppose
visitation altogether, but instead asked the court to order one day of visitation per
month with no overnight stay."); 530 U.S. at 71, 120 S. Ct. at 2062-63, 147 L. Ed.
2d at 60 (noting "there is no allegation that Granville ever sought to cut off visitation
entirely. Rather, the present dispute originated when Granville informed the Troxels
that she would prefer to restrict their visitation . . . to one short visit per month and
special holidays"). The Supreme Court held the Due Process Clause protects a fit
parent's right to impose limitations on grandparent visitation. 530 U.S. at 72, 120 S.
Ct. at 2064, 147 L. Ed. 2d at 60-61.
Similarly, in the court of appeals' recent decision in Brown, the question before the
court was not the fact of visitation, but whether limitations the mother sought to
place on that visitation must be honored. As the court of appeals explained,
"Grandmother was offered supervised visitation . . . on multiple occasions." 425
S.C. at 496, 823 S.E.2d at 215. "Grandmother's central point of contention" to the
court was "Mother's insistence that visitation be supervised was unreasonable." Id.
The family court overruled the mother's limitations, but the court of appeals
reversed. 425 S.C. at 499, 823 S.E.2d at 217.
In this case, Tammie explained she has concerns about overnight visitation in
Pamplico. While she conceded, "I am not accommodating them the way they would
like for me to," she justified her reluctance to provide the visitation the grandparents
want because "[the children's] lives are in Myrtle Beach, not in Pamplico." She
explained,
My children are very active children. They do soccer, and
during soccer season, they have a soccer game every
Saturday for the YMCA. My smallest of the twins wants
to do travel soccer like her older sister did because she is
getting that good. They do, or they did dance last fall. Or
last year was dance. [One of the twins is] really into
dancing. My oldest daughter is a cheerleader, and she
cheers. And also plays soccer. She made JV soccer her
seventh grade year, so she's good too.
We are active members in our church. They not only
attend church on Sundays but they also attend church on
Wednesday nights where they're a member of the GA's,
and [the oldest] is in a small youth group.
And it seems like we have something every day. They do
tumbling. [The oldest] does private tumbling lessons on
Saturdays. She does violin lessons and gymnastics.
So, I mean, they're doing something all the time. They
stay active, and they love it.
She further explained, "I don't want them to be affected by this, because they are
happy now," and, "I just don't want the girls to be carted off to Pamplico once a
month . . . when they have their lives here in Myrtle Beach." At the time Tammie
explained these concerns for the welfare of her children, they were 13 and 9.
When fashioning an appropriate schedule of grandparent visitation pursuant to
subsection 63-3-530(A)(33), a court must attempt to accommodate a fit parent's
reasonable concerns for the welfare of her children. Reasonable limitations a parent
chooses to impose on grandparent visitation may not be overruled by a court absent
a full subsection 63-3-530(A)(33) analysis as to each such limitation. A court must
determine the grandparent has satisfied each of the four elements, particularly the
unreasonableness of the limitation and the existence of compelling circumstances.
When applicable, the court should also consider the amount and character of the time
the grandparents spent with the children before a parent terminated or limited it.
This was a primary consideration for the court of appeals in its recent decision in
Grantham. There, the family court set what initially appears to be an excessive
grandparent visitation schedule: "one weekend of visitation per month" for three full
days, "from 5:00 P.M. on Thursday until 5:00 P.M. on Sunday," and "one week of
summer visitation." 425 S.C. at 114, 819 S.E.2d at 767-68. After a close
examination of the unique facts of that case—particularly the parent-like relationship
the grandparents had with the children before the mother committed suicide—the
frequency, duration, and character of the visitation the court of appeals approved
appear reasonable. The court of appeals explained the nature of the relationship the
grandparents had with the children before their mother's death,
Grandparents . . . helped Mother take care of the children.
Grandparents were involved in the children's lives since
birth, often taking care of the children multiple times each
week. Grandparents maintained a relationship with the
children much like parents: taking and picking up the
children from school, cooking for the children, bathing the
children, buying clothes for the children, and taking the
children to doctor's appointments.
425 S.C. at 113, 819 S.E.2d at 766.
When grandparents have such a parent-like relationship, it can be particularly
important to the welfare of the children for the court to maintain the relationship. In
Grantham, the grandparents' close relationship developed because the "[f]ather often
worked long shifts and traveled out of town," and the mother "began to suffer from
severe depression and substance abuse" when the children were very young. 425
S.C. at 113-14, 819 S.E.2d at 766. When the mother died, family members and
others openly suggested the father was responsible for the mother's suicide, and the
father "immediately limited how often Grandparents saw the children." 425 S.C. at
114, 819 S.E.2d at 766. There was "a public altercation" between the father's new
wife and the grandparents "in front of the children," and another "confrontation"
between them over the father's attempts to limit the grandparents' access to the
children. Id. These circumstances made it important to maintain the grandparents'
involvement in the children's lives after their mother's death as a source of stability.
However, the father "stopped Grandparents from seeing the children altogether." Id.
The unique facts of Grantham justified the visitation schedule the court of appeals
approved in that case.
Here, the grandparents never acted in a parental capacity, and there is no reason to
believe they are needed now as a parent-like source of stability in the children's lives.
The facts of this case, therefore, are considerably different from those in Grantham.
Before Stacey died, the grandparents hardly ever had the children overnight. With
rare exceptions, the only times the children even went to Pamplico they were with
Stacey. 8 Ordinarily, if the grandparents wanted to visit with the children, they had
to drive to Myrtle Beach.
With the limitations Tammie sought to impose in mind, and in light of the history of
the grandparents' visitation with the children, we turn to the visitation schedule
ordered by the family court:
8
As far as we can tell from the record, the children stayed overnight in Pamplico
only twice when Stacey was not also there. Tammie described "maybe two date
nights" she had with Stacey when the children were in Pamplico by themselves.
While there were times Stacey had them in Pamplico and he may have been away
from the grandparents' home hunting or fishing, there is no other indication in the
record the children stayed overnight with the grandparents in Pamplico without
Stacey.
• the children may make unlimited phone contact with the
grandparents;
• the grandparents may:
 place one phone call per week to the children;
 attend the children's school functions, summer
events, and extra-curricular activities (Tammie
must provide them a calendar);
 have eight weekend visits in Pamplico per year,
from 9:00 a.m. on Saturday mornings to 4:00 p.m.
on Sunday afternoons;
 have one week visitation each summer, in
Pamplico;
 have one overnight visit in Pamplico to celebrate
Christmas that is neither Christmas Day nor
Christmas Eve.
We find this visitation schedule is excessive, and violates Tammie's due process
right to make decisions for the welfare of her children. The limitations Tammie
sought to place on visitation are reasonable under the circumstances that existed at
that time. Because of that fact alone, the court may not overrule the limitations. See
§ 63-3-530(A)(33)(1) (the second element, requiring a finding visitation was
"unreasonably deprived"). In addition, though Tammie's intentional, deceptive, and
contemptuous behavior affecting the well-being of the children is a compelling
circumstance that justifies giving the grandparents some visitation, it does not at this
time justify overruling Tammie's decision that the children should not have to go to
Pamplico. See § 63-3-530(A)(33)(2)(b) (the fourth element, requiring a finding of
"compelling circumstances"). Finally, the visitation schedule awarded by the family
court in this case is a sharp increase in the amount, and a significant change in the
character, of visitation the grandparents enjoyed before Stacey died.
For these reasons, we modify the family court's order to permit the following
visitation schedule:
• the children may make unlimited phone contact with the
grandparents;
• the grandparents may:
 place one phone call per week to the children;
 attend the children's school functions, summer
events, and extra-curricular activities (Tammie
must provide them a calendar);
 have at least monthly visits in Myrtle Beach—
subject to increase by the family court—for church,
a school event, a meal, or some other event planned
by the grandparents that does not require an
overnight stay;
 have one half-day outing—not an overnight visit—
in Myrtle Beach to celebrate Christmas, neither
Christmas Eve nor Christmas Day.
We are concerned, however, that Tammie's repeated efforts to prevent visitation for
almost four years interfered with the grandparents' ability to rebuild and maintain a
beneficial relationship with the children. By preventing the maintenance of the
relationship, Tammie may have created the potential for significant harm. It could
become a compelling circumstance, therefore, that to rebuild the relationship, it will
be necessary to reconsider allowing overnight visits with the grandparents in
Pamplico.
Tammie now faces a choice. She may choose to encourage—or discourage—a
beneficial relationship between her children and the grandparents. If she chooses
the former, this Court is confident the visitation schedule we set will foster a
beneficial relationship between the children and the grandparents. If she chooses to
discourage the relationship, even if she is in technical compliance with all orders, 9 it
will be necessary for the family court to reconsider the prospect of overnight
visitation in Pamplico to permit the grandparents to rebuild the loving relationship
they had with the children before Stacey died.
The family court's November 2017 order contained more detail as to the specifics of
these visits than are set forth in this opinion. For example, the November 2017 order
provides the manner in which the grandparents should give Tammie notice of
visitation requests, appropriate spacing requirements between visits, and the manner
9
When the family court held Tammie in contempt, it sentenced her to four months
in prison, suspended on strict compliance with all court orders. If Tammie continues
to disobey court orders, grandparent visitation will likely not be an issue because
Tammie will be in jail, and the grandparents will have custody of the children.
in which Tammie must provide a calendar of the children's events. Because the
family court is more suited to consider these particulars in light of our modification
to the visitation schedule, we remand to the family court for this limited purpose.
The family court should hear from the parties, and then impose a detailed visitation
order. The new order should be designed to carry out the visitation schedule we
have ordered, in a manner to promote cooperation between Tammie and the
grandparents, and to suit the needs of all involved, particularly the children.
III. Conclusion
In Troxel, the Supreme Court recognized that the Due Process Clause restricts the
power of the State to interfere with a fit parent's decisions about the welfare and
upbringing of her child. To ensure we permit no Due Process Clause violations, this
Court has strictly scrutinized decisions of our family court allowing grandparent
visitation. In this case, Tammie deliberately manipulated the court—detracting it
from its duty to conduct this scrutiny—by falsely asserting she would permit
visitation, but then consistently refusing it. This Court will not tolerate this manner
of deceptive behavior. We affirm the family court's decision to require visitation.
Nevertheless, because Tammie's reasonable limitations on visitation must be
honored on the current facts of this case, we modify the visitation schedule.
AFFIRMED AS MODIFIED.
BEATTY, C.J., JAMES, J., and Acting Justice John D. Geathers,
concur. KITTREDGE, J., concurring in part and dissenting in
part in a separate opinion.
JUSTICE KITTREDGE: I am in agreement with most of Justice Few's excellent
majority opinion. I write separately because I would allow limited overnight
visitation in Pamplico, South Carolina.
In my judgment, the critical factor in this case is the prominent and significant role
the grandparents had in the lives of their grandchildren prior to the death of Stacey
Bazen. The grandparents have been a positive fixture for the children throughout
their lives, at least until Stacey's death. That, in my judgment, is the key factor that
merits a finding of compelling circumstances warranting grandparent visitation. It
is unquestioned that the children spent much time with their grandparents in
Pamplico, which is only about fifty miles from Myrtle Beach. For this reason, I
would permit overnight visitation in Pamplico, albeit less frequently than ordered
by the family court.
I join in the majority's decision to remand to the family court to order a detailed
and specific visitation plan. Detailed instructions are regrettably necessitated by
the shameful conduct of Tammie Bazen, who spoke of her desire for grandparent
visitation while maliciously preventing any contact between the children and the
grandparents. Tammie's conduct requires the family court to provide as much
detail as possible in the visitation schedule. Tammie's lies and manipulation
foreclose the preferred approach of allowing parties the flexibility to cooperate and
work together. I also join the majority in admonishing Tammie that her continued
contemptuous behavior will not be tolerated.
However, in addition to the general visitation schedule set forth in the majority
opinion, I would add the following visitation: overnight, weekend visitation every
third month, in Pamplico (or Myrtle Beach, as selected by the grandparents) from
Friday at 6:00 PM until Sunday at 6:00 PM, with the grandparents responsible for
transportation. This limited overnight visitation every quarter must not conflict
with the children's established activities or as otherwise superseded by the
scheduled division of time between Tammie and the grandparents. I part company
with the majority only as to my judgment to allow the grandparents limited
weekend overnight visitation four times a year.
I add a final comment. The family court must carefully assess the current
situation. There are two primary factors involved. First, the absence of any
contact between the children and the grandparents for an extended period of time
(caused by Tammie's conduct) may have damaged the children's perception of and
relationship with the grandparents. If so, a gradual break-in period of visitation
may be warranted. A second factor, irrespective of Tammie's conduct, is simply
the ages of the children. As parents and family court judges understand well, it is
often not easy telling a teenager what to do. Even with fit, mature, and flexible
parents and grandparents, teenagers will frequently push back against ordered,
mandated visitation. When this occurs, neither party is to blame. The presence of
these two factors heightens the difficult task that may confront the family court.
I respectfully concur in part and dissent in part.