Carolyn Diane Dendy v. Ajia Latrice Gamble

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Carolyn Diane Dendy and William Leroy Dendy,
Respondents,

v.

Ajia Latrice Gamble, Alexia Gamble, and John Rice,
Defendants,

Of whom Ajia Latrice Gamble and John Rice are the
Appellants.

Appellate Case No. 2023-001358

Appeal From Richland County
Joseph C. Smithdeal, Family Court Judge

Opinion No. 6100
Heard December 2, 2024 – Filed February 12, 2025

REVERSED

Scarlet Bell Moore, of Greenville, for Appellants.

Melinda Inman Butler, of The Butler Law Firm, of Union,
and Elizabeth Dyal Medlin, of Medlin Law Firm, LLC, of
Laurens, for Respondents.

GEATHERS, J.: Appellants Ajia Gamble (Aunt) and John Rice (Uncle) appeal the
family court's grant of visitation to Respondents Carolyn Dendy (Grandmother) and
William Dendy (Grandfather) (collectively, Grandparents). Aunt and Uncle argue
the family court erred in finding that Grandparents were entitled to court-ordered
visitation as de facto custodians and psychological parents of a minor child (B.G.).
They further argue the court erred by finding the "grandparent visitation" statute1
warranted an award of visitation, and they claim the court erred by awarding
attorney's fees to Grandparents. We reverse.

FACTS

This case involves a dispute between a minor child's grandparents and her
legal custodians regarding visitation. B.G. was born in 2010 in Louisiana. The
child's mother, Alexia Gamble (Mother), was somewhat estranged from her own
mother and stepfather, Grandparents, when B.G. was born. But after learning from
other family members that Mother had a baby, Grandmother traveled to Louisiana
to help. Grandmother brought B.G. back to South Carolina in accordance with a
safety plan drafted by social services in Louisiana. The safety plan's drafters
intended for Grandparents to obtain legal custody of B.G., though Grandparents
never sought legal custody.

B.G. lived with Grandparents until she was around five years old. While
Mother was often around and lived with Grandparents sporadically, Grandparents
provided B.G.'s daily care.

In the summer of 2015, B.G. began living with Mother's sister—Aunt—and
Aunt's then-boyfriend, Uncle. Grandparents claim this arrangement arose because
Aunt offered to help when Grandparents began taking care of Grandmother's own
aging mother. They allege the arrangement was always meant to be temporary.
Aunt, on the other hand, claims she took B.G. at Mother's request due to fighting
between Grandmother and Mother. Regardless, beginning in 2015, Aunt and Uncle
became B.G.'s caregivers.

A little over a year later, in 2016, Aunt and Uncle filed for legal custody of
B.G. The family court granted them permanent legal and physical custody on June
16, 2017, pursuant to the terms of a 2016 custody agreement between them and
Mother. Mother did not attend the hearing in 2017, but she was served with notice
of the hearing and expressly consented to the custody agreement. Grandparents
claim they had no knowledge of the custody agreement or the 2017 order and that
they were unaware that Aunt and Uncle had permanent legal custody of B.G. until
Grandparents filed the present action. Aunt testified that she informed Grandparents
of the custody agreement and that Grandparents were aware of it because Mother
was living with Grandparents at the time Mother was served with notice of the

1
S.C. Code Ann. § 63-3-530(A)(33) (Supp. 2024).
hearing. Further, Aunt claimed she explained to Grandmother that she needed to be
B.G.'s guardian to enroll B.G. in school and that Grandmother sent documents, such
as an immunization record, to help with this process. Grandmother testified she did
not understand that Aunt would be obtaining permanent legal custody and always
believed the guardianship arrangement was temporary.

From the time that B.G. first moved in with Aunt and Uncle until 2019,
Grandparents visited regularly. But in 2019, a heated disagreement arose between
Aunt and Grandmother about B.G.'s haircut. After this point, Grandparents claim
Aunt and Uncle cut them out of B.G.'s life completely. They had no way to reach
Aunt and Uncle, nor did they know where Aunt and Uncle were living. Aunt and
Uncle contend that after this falling out, Grandparents stopped asking to visit or
attempting to keep in touch with B.G.

In 2020, after not seeing or hearing from B.G. for over a year, Grandparents
asked law enforcement to track down Aunt and Uncle, which led to the filing of this
suit.2 Grandparents sought custody of B.G. or, in the alternative, visitation.

Following significant delays caused by the COVID-19 pandemic, the family
court conducted a trial on May 30–31 and June 2, 2023. By the time the trial
occurred, B.G. had not seen Grandparents in four years and expressed to the guardian
ad litem that she did not wish to visit them. The family court found it was in the best
interest of the child for custody to stay with Aunt and Uncle but for Grandparents to
be granted regular visitation. This appeal followed.

ISSUES ON APPEAL

1. Whether the family court erred in finding that Grandparents were the de facto
custodians of B.G. and thus entitled to court-ordered visitation with her.

2. Whether the family court erred in finding that Grandparents were the
psychological parents of B.G. and thus entitled to court-ordered visitation with
her.

2
After learning of the 2017 order granting custody to Aunt and Uncle, Grandparents
properly amended their initial pleadings to address the order and to add Uncle as a
necessary party.
3. Whether the family court erred in finding that this is not solely a grandparent
visitation case but that the "grandparent visitation" statute still warranted an
award of visitation to Grandparents.

4. Whether the family court erred by awarding attorney's fees to Grandparents.

STANDARD OF REVIEW

"In appeals from the family court, this [c]ourt reviews factual and legal issues
de novo." Simmons v. Simmons, 392 S.C. 412, 414, 709 S.E.2d 666, 667 (2011).
Thus, this court "has jurisdiction to find facts in accordance with its view of the
preponderance of the evidence." Lewis v. Lewis, 392 S.C. 381, 384, 709 S.E.2d 650,
651 (2011). "However, this broad scope of review does not require the appellate
court to disregard the fact that the family court, which saw and heard the witnesses,
was in a better position to evaluate their credibility and assign comparative weight
to their testimony." Tomlinson v. Melton, 428 S.C. 607, 611, 837 S.E.2d 230, 232
(Ct. App. 2019). "Therefore, the appellant bears the burden of convincing the
appellate court that the family court committed error or that the preponderance of
the evidence is against the court's findings." Id. at 611–12, 837 S.E.2d at 232.

LAW/ANALYSIS

Before addressing the issues on appeal, we note the family court stated in its
final order that the 2017 order granting legal and physical custody to Aunt and Uncle
"has no priority in this matter." The court found Grandparents were de facto
custodians and psychological parents when the 2017 order was filed and, therefore,
they should have been made parties and notified of any custody cases involving B.G.
In the family court's view, the 2017 order had "no priority" because it violated
Grandparents' due process rights.3 As a result, the family court treated the present
case as a dispute between non-parent third parties, thus depriving Aunt and Uncle of
the presumption afforded to parents and legal guardians that their decisions are in
the child's best interest. See Camburn v. Smith, 355 S.C. 574, 579, 586 S.E.2d 565,
567 (2003) ("A court considering [third party] visitation over a parent's objection
must allow a presumption that a fit parent's decision is in the child's best interest.").

3
The family court cited section 63-15-60(E) of the South Carolina Code (2010),
which states: "If the court has determined by clear and convincing evidence that a
person is a de facto custodian, the court must join that person in the action as a party
needed for just adjudication under the South Carolina Rules of Civil Procedure."
The family court misrepresents the 2017 order. A family court judge has no
authority to ignore or overrule the order of another family court judge. S.C. Dep't of
Soc. Servs. v. Laura D., 386 S.C. 382, 386, 688 S.E.2d 130, 132 (Ct. App. 2009).
The 2017 order—which was issued by a family court judge—is valid on its face and
was clearly agreed to by Mother. It grants Aunt and Uncle "sole care, custody, and
control of the minor child . . . with all rights for medical care, education[,] and other
rights."4 We find that "other rights" includes the right to make decisions about
visitation. See S.C. Code Ann. § 63-7-20(13)(a)(vi) (Supp. 2024) (transferring to
legal guardians the parental right to "determine the nature and extent of the child's
contact with other persons").5 Thus, Aunt and Uncle are entitled to the presumption
that their decisions are in B.G.'s best interest, which "may be overcome only by
showing compelling circumstances, such as significant harm to the child, if visitation
is not granted." Camburn, 355 S.C. at 579, 586 S.E.2d at 568 (denying visitation to
grandparents even though visitation would have been a stabilizing factor in the
children's life because there were no compelling circumstances to overcome the
presumption that the parents' decisions were in the children's best interest).

I. De Facto Custodians

The de facto custodian statute 6 "provides for the best interests of the child to
prevail by allowing visitation and custody rights to third parties when justified."
Alukonis v. Smith, 431 S.C. 41, 56, 846 S.E.2d 600, 608 (Ct. App. 2020). The statute
balances the third party's rights against the superior rights of natural parents by
requiring third parties to prove by clear and convincing evidence that a natural parent
is unfit or that other compelling circumstances warrant third-party custody or
visitation. Id. at 56–57, 846 S.E.2d at 608–09. The statute states as follows:

4
The order also states it "shall not be modified or changed except by mutual consent
and agreement of the parties expressed in writing."
5
The 2017 order does not expressly create a legal guardianship, as it simply
incorporates the parties' private custody agreement. However, the relationship
established by the custody agreement mirrors a legal guardianship in substance and
in form. Further, we note that the language "care, custody, and control" of the child
is the same used by the United States Supreme Court in Troxel v. Granville, 530 U.S.
57 (2000), and by our supreme court in Camburn when discussing the fundamental
right to raise children and the presumption that parents' decisions are made in their
children's best interest.
6
S.C. Code Ann. § 63-15-60 (2010).
(A) For purposes of this section, "de facto custodian"
means, unless the context requires otherwise, a person
who has been shown by clear and convincing evidence
to have been the primary caregiver for and financial
supporter of a child who:

(1) has resided with the person for a period of six
months or more if the child is under three years of
age; or

(2) has resided with the person for a period of one
year or more if the child is three years of age or
older.

Any period of time after a legal proceeding has been
commenced by a parent seeking to regain custody of the
child must not be included in determining whether the
child has resided with the person for the required
minimum period.

(B) A person is not a de facto custodian of a child until the
court determines by clear and convincing evidence that the
person meets the definition of de facto custodian with
respect to that child. If the court determines a person is a
de facto custodian of a child, that person has standing to
seek visitation or custody of that child.

(C) The family court may grant visitation or custody of a
child to the de facto custodian if it finds by clear and
convincing evidence that the child's natural parents are
unfit or that other compelling circumstances exist.

....

(E) If the court has determined by clear and convincing
evidence that a person is a de facto custodian, the court
must join that person in the action as a party needed for
just adjudication under the South Carolina Rules of Civil
Procedure.
S.C. Code Ann. § 63-15-60 (emphases added).

Here, the family court concluded Grandparents were B.G.'s de facto
custodians. We disagree with this conclusion. The question turns on whether the
legislature intended for the de facto custodian statute to apply to custodians from any
point in a child's life or only to recent custodians. On the one hand, by using the
language "has resided" instead of "resided" in subsections (A)(1) and (2), the
underlying intent may have been to recognize the most recent custodian-in-fact at
the point just prior to the filing of the suit. On the other hand, limiting de facto
custodian standing to recent custodians may not provide for the child's best interests.
Under this interpretation, guardians who raised a child for a decade but who no
longer serve as primary caregivers would lose standing under this statute to seek
custody or visitation.

This question has not been directly answered in South Carolina. Some states
include a time limit in the "de facto custodian" statute itself. See Minn. Stat.
§ 257C.01, subd. 2(a) (2022) ("'De facto custodian' means an individual who has
been the primary caretaker for a child who has, within the 24 months immediately
preceding the filing of the petition, resided with the individual . . . ." (emphasis
added)); Tex. Fam. Code Ann. § 102.003(a)(9) (West 2019) (conferring third-party
standing for visitation to "a person, other than a foster parent, who has had actual
care, control, and possession of the child for at least six months ending not more
than 90 days preceding the date of the filing of the petition" (emphasis added)). After
a review of other states' laws,7 we hold that de facto custodians lose standing once
they no longer discharge the duties incidental to a parental relationship. See, e.g.,
McCrillis v. Hicks, 518 S.W.3d 734, 742 (Ark. Ct. App. 2017) ("[A]lthough [the
third party] had stood in loco parentis to the child for the first three years of the
child's life, she had ceased to have that bond with the child, and it was no longer in
the child's best interest to allow visitation."); In re Scarlett Z.-D., 28 N.E.3d 776,
789 (Ill. 2015) ("[O]nce the person alleged to be in loco parentis no longer
discharges all duties incident to the parental relationship, that person is no longer in
loco parentis and the parental relationship is terminated."); Jones v. Barlow, 154
P.3d 808, 814 (Utah 2007) ("[T]he in loco parentis doctrine does not contemplate a
perpetual grant of rights and is, in fact, ill-suited to convey such rights."). But see
Cal. St. Fam. Juv. R. 5.534(a) ("On a sufficient showing, the court may recognize

7
See 143 Am. Jur. Trials 441 § 1 (2016) ("[M]any states enacted 'de facto' parent
custody statutes to address the ability of third parties to obtain custody of a minor
child. While some states call it 'in loco parentis,' most of these statutes contain the
same elements." (footnote omitted)).
the child's present or previous custodian as a de facto parent and grant him or her
standing to participate as a party in the dispositional hearing and any hearing
thereafter at which the status of the dependent child is at issue." (emphasis added)).

Aunt and Uncle argue the family court erred by finding Grandparents were de
facto custodians because Grandparents "could not have shown that [B.G.] has
resided with them for over one (1) year on the filing date of either [the 2017 order]
or in this action, as she has lived with [Aunt and Uncle] since 2015." Thus, in Aunt's
and Uncle's view, the determinative factor is whom the child has lived with for at
least one year immediately prior to the filing of the suit. We need not decide today
the exact moment at which de facto custodians lose this status.8 When Grandparents
brought this suit, five years had passed since B.G. lived with them. At that point,
Grandparents were clearly no longer discharging the duties of a parental relationship.
Further, the record before us does not contain any compelling circumstances that
would warrant an award of visitation to Grandparents. Thus, the family court erred
in finding Grandparents were de facto custodians.9

II. Psychological Parents

8
We do note that de facto custodian status does not expire immediately or
automatically once a child no longer lives with the custodian. In Alukonis, this court
found clear and convincing evidence that a grandfather was a de facto custodian
when the child "resided over half his life with [g]randfather prior to the
commencement of this action and [g]randfather was his primary caregiver during
this time." 431 S.C. at 57, 846 S.E.2d at 609. In that case, the child's father assumed
custody after the mother's death and refused to allow the maternal grandfather any
contact with the child. Id. at 47–48, 846 S.E.2d at 604. The grandfather brought the
action within a few months after the mother's death. Id. at 48, 846 S.E.2d at 604.
The court found the grandfather to be a de facto custodian even though several
months had passed since the child lived with him. Id. at 57, 846 S.E.2d at 609.
9
The family court did not find that compelling circumstances warranted its grant of
visitation to Grandparents as de facto custodians. Rather, it erroneously stated that
"[Grandparents] were the de facto custodians . . . which would warrant an award of
visitation for [Grandparents] on its own." While Aunt and Uncle did not raise the
issue of compelling circumstances on appeal, we take this opportunity to note that
meeting the statutory definition of de facto custodian does not automatically warrant
custody or visitation—the family court still has the discretion to grant visitation or
custody but only if clear and convincing evidence shows that a child's natural parents
are unfit or that other compelling circumstances exist. S.C. Code Ann.
§ 63-15-60(C).
Before visitation may be awarded over a parent's
objection, one of two evidentiary hurdles must be met: the
parent must be shown to be unfit by clear and convincing
evidence, or there must be evidence of compelling
circumstances to overcome the presumption that the
parental decision is in the child's best interest.

Camburn, 355 S.C. at 579–80, 586 S.E.2d at 568. "[T]he family court can in fact
grant visitation to a third[]party over a fit parent's objection when faced with
compelling circumstances." Middleton v. Johnson, 369 S.C. 585, 601, 633 S.E.2d
162, 171 (Ct. App. 2006). "The compelling circumstances standard encompasses a
situation where . . . a third party has attained psychological parent status." Id. at 605,
633 S.E.2d at 173. When deciding whether to award visitation to a psychological
parent, "[t]he standard to be applied is whether compelling circumstances exist" and
"visitation must actually be in the child's best interest." Id.

A psychological parent-child relationship exists when a third party steps in to
fill a "parental void." See Middleton, 369 S.C. at 598, 633 S.E.2d at 169 ("[W]hen
both biological parents are involved in the child's life, a third party's relationship
with the child could never rise to the level of a psychological parent, as there is no
parental void in the child's life."). "Establishing psychological parenthood is a
difficult undertaking." Id. at 604, 633 S.E.2d at 172. South Carolina has adopted a
four-part test to determine whether a psychological parent-child relationship exists
between a child and a third party, which requires the petitioner to show:

(1) that the biological or adoptive parent[s] consented to,
and fostered, the petitioner[']s formation and
establishment of a parent-like relationship with the child;

(2) that the petitioner and the child lived together in the
same household;

(3) that the petitioner assumed obligations of parenthood
by taking significant responsibility for the child's care,
education and development, including contributing
towards the child's support, without expectation of
financial compensation; [and]
(4) that the petitioner has been in a parental role for a
length of time sufficient to have established with the child
a bonded, dependent relationship parental in nature.

Marquez v. Caudill, 376 S.C. 229, 242, 656 S.E.2d 737, 743 (2008) (first and third
alterations in original (quoting Middleton, 369 S.C. at 596–97, 633 S.E.2d at 168)).
"[O]nce established, the bond between the psychological parent and child should not
be unilaterally severed." Middleton, 369 S.C. at 604, 633 S.E.2d at 172–73.

Here, the family court determined that Grandparents were B.G.'s
psychological parents. This determination was incorrect. While we acknowledge
that Grandparents may have been B.G.'s psychological parents at one point, this
status lapsed when B.G. moved in with Aunt and Uncle. Once Grandparents took
on a traditional grandparent role, they could no longer claim to be B.G.'s
psychological parents. Further, with Aunt and Uncle assuming parental roles, no
"parental void" needed to be filled by Grandparents. Additionally, because Mother
agreed to grant Aunt and Uncle legal custody in 2016—an agreement that did not
terminate her parental rights—we do not find that Mother continued to consent to
and foster a parent-like relationship between B.G. and Grandparents. Moreover,
once Aunt and Uncle became legal custodians, they certainly did not foster a
parent-like relationship between B.G. and Grandparents. For this reason, the family
court erred in finding Grandparents were B.G.'s psychological parents.10

10
The family court also erroneously found that Grandparents' status as psychological
parents would warrant an award of visitation on its own. We note this error to
emphasize our concern that the family court misunderstood the doctrines involved
in this case. In a dispute between mere third parties, psychological-parent status
may be sufficient to justify a custody award. See Marquez, 376 S.C. at 245, 656
S.E.2d at 745 (awarding custody to a stepfather over a grandmother because of the
stepfather's status as a psychological parent and because "[a] biological parent [was]
not involved" and "there [was] no reason to recognize the superior rights of a natural
parent"). But in a dispute between a biological parent and a third party,
psychological-parent status is not sufficient on its own to warrant custody or
visitation—there must be other compelling circumstances. See Middleton, 369 S.C.
at 604, 633 S.E.2d at 172 (awarding visitation to a psychological parent because his
absence from the child's life "caused and [would] continue to cause significant harm"
to the child and thus the circumstances were compelling enough to meet the
evidentiary hurdle third parties must overcome when seeking visitation over the
objection of a fit parent). Aunt and Uncle, under the custody agreement, gained the
superior rights of natural parents concerning visitation. Thus, even if Grandparents
III. Grandparent Visitation

"It is well-settled that parents have a protected liberty interest in the care,
custody, and control of their children. This is a fundamental right protected by the
Due Process Clause." Camburn, 355 S.C. at 579, 586 S.E.2d at 567 (citing Troxel,
530 U.S. at 65–66). "A court considering grandparents' visitation over a parent's
objection must allow a presumption that a fit parent's decision is in the child's best
interest." Id. at 579, 586 S.E.2d at 567. But this presumption may be overcome "by
showing compelling circumstances . . . if visitation is not granted." Id. at 579, 586
S.E.2d at 568. It is not enough that grandparents may be a "stabilizing factor" in a
child's life. Middleton, 369 S.C. at 602–03, 633 S.E.2d at 171–72. "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." Camburn, 355 S.C. at 579, 586 S.E.2d at 568.

Section 63-3-530 of the South Carolina Code (2024) provides:

(A) The family court has exclusive jurisdiction:

....

(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

were properly determined to be B.G.'s psychological parents, visitation would only
be warranted if compelling circumstances existed to overcome the presumption that
Aunt and Uncle's decision to deny visitation was made in B.G.'s best interest. See
Alukonis, 431 S.C. at 59–60, 846 S.E.2d at 610 ("The fact that one is determined to
be a psychological parent does not, by itself, override the rebuttable presumption
that it is in the best interests of a child to be in the custody of his biological parent.").
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.

On appeal, Aunt and Uncle argue: "Although the [family court] asserts that
this case 'is not a Grandparent Visitation' case, the [family court] erroneously finds
that those standards could justify a visitation order in this matter." The family court's
characterization of this case as "not a grandparent visitation case" stemmed from its
treatment of the case as a dispute between mere third parties. That is, the family
court did not find the grandparent visitation cases applicable because the court did
not ascribe a parental presumption to Aunt and Uncle. Further, the family court
appeared to believe that Grandparents had superior rights because it determined they
were de facto custodians and psychological parents. Regardless, the family court
found that "if this were a grandparent visitation case, then all elements of the statute
have been met by [Grandparents]."

The family court erred in finding section 63-3-530 inapplicable to this case.
As discussed, the grant of legal custody to Aunt and Uncle carried with it the
presumption that their decisions regarding visitation are made in B.G.'s best
interests. For this reason, this case fits within the circumstances contemplated by
section 63-3-530(A)(33) because the child's biological grandparents seek visitation
over the objection of fit, legal custodians. But in applying this statute, we disagree
with the family court that all elements have been met because we do not find clear
and convincing evidence of compelling circumstances that warrant visitation. 11 See
Marquez, 376 S.C. at 249, 656 S.E.2d at 747 (holding that compelling circumstances
justified ordering grandparent visitation over a fit parent's objection when the
children's biological mother had passed away and the grandmother sought visitation
to maintain ties between the children and the deceased mother's family); Middleton,
369 S.C. at 603, 633 S.E.2d at 172 (holding that compelling circumstances justified
a grant of visitation to the child's stepfather who the family court found was the
child's psychological parent because the record was "replete with evidence"
illustrating that the mother's refusal to allow the stepfather to visit with the child had
caused the child "significant harm").

We are troubled by the facts in this case, particularly because the record
contains scant evidence of a legitimate reason for Aunt and Uncle's decision to cut
Grandparents out of B.G.'s life. Instead, Aunt and Uncle's decision to deny visitation
to Grandparents appears to be based on Aunt's own strained relationship with
Grandmother. But ultimately, we do not find compelling circumstances that warrant
court-ordered visitation. Aunt and Uncle must not be required to justify their
decisions about who spends time with B.G. See Camburn, 355 S.C. at 580, 586
S.E.2d at 568. As guardians with sole care, custody, and control of the child, Aunt
and Uncle have the right to permit or deny visitation as they see fit, and Grandparents
face a substantial burden in overcoming the presumption that these decisions are
made in B.G.'s best interest. Id. We do not find compelling circumstances to
overcome that presumption in this case. Unlike in Marquez, there is no risk of B.G.
being isolated from her mother's family because Aunt is Mother's sister and because
the custody agreement provides liberal visitation to Mother. Further, unlike in
Middleton, the record does not contain any evidence that Aunt's refusal to allow
Grandparents to visit B.G. has caused B.G. significant harm. 12 In fact, B.G.
expressed to the guardian ad litem that she had no desire to visit her grandparents.

11
The remaining elements of section 63-3-530(A)(33) have been met. B.G.'s parents
live separate and apart in different habitats: the biological father stayed in Louisiana
and has never been involved in B.G.'s life. B.G.'s guardians have denied
Grandparents the opportunity to visit for a period exceeding ninety days. And
awarding grandparent visitation would not interfere with the parent-child
relationship between Aunt and Uncle and B.G..
12
In Middleton, the child's teacher contacted the school's guidance counselor
because the child seemed sad and was not acting like himself. 369 S.C. at 603, 633
S.E.2d at 172. The counselor testified that, during group sessions for children who
had experienced loss, the child expressed grief over losing his father (referring to his
stepfather). Id.
In sum, because we do not find clear and convincing evidence of compelling
circumstances that justify ordering visitation over Aunt and Uncle's objection, we
hold the family court erred by awarding visitation to Grandparents.13

IV. Attorney's Fees

After considering the relevant factors, the family court awarded attorney's fees
to Grandparents as the prevailing party. See Glasscock v. Glasscock, 304 S.C. 158,
161, 403 S.E.2d 313, 315 (1991); Lewin v. Lewin, 396 S.C. 349, 355–56, 721 S.E.2d
1, 4 (Ct. App. 2011). Based on our decision to reverse the family court's visitation
award, we find that Grandparents are no longer the prevailing party. Thus, we
reverse the family court's award of attorney's fees to Grandparents. See Richland
County v. Kaiser, 351 S.C. 89, 97, 567 S.E.2d 260, 264 (Ct. App. 2002).

CONCLUSION

Accordingly, the decision of the family court is

REVERSED.

WILLIAMS, C.J., and KONDUROS, J., concur.

13
In acknowledgement of Mother's testimony in which she expressed it would be in
B.G.'s best interest for the whole family to work together, we encourage Aunt and
Uncle to foster an ongoing relationship between B.G. and Grandparents.