1.

Assignment - Bazen Brief:

Read the Bazen case opinion of the SC Supreme Court and make a Legal Brief to explain this case. In your Brief include the 5 topic areas listed below

Your Brief should be set up in 5 sections -Identify Each section with aBOLDheading...ie.Facts, Issues, Holding, ReasoningandConclusion.

1-Factsof the Case (this should be four-six sentences to explain the case)

2 -Identify the keyIssues(Read the entire Opinion and find those legal issues that Impact the rights of a grandparent to visitation - this section should identify 3-5 key issues)

3.Identify the Court'sHoldingon those issues (From the issues you identified in part 2 - set out in summary fashionthe Court's decision as to those issues - no more than five sentences per issue

4-Relate the Court'sReasoning- Explain the legal justification for the holdings you explained in part 3

5-TheConclusion- (Was the lower court decision affirmed, reversed and/or remanded)

THESTATEOFSOUTHCAROLINA

InTheSupremeCourt

Laverne Bazen and Pansy Bazen, Respondents,v.

Tammie Bazen, Appellant.AppellateCaseNo.2018-000337

Appeal from Horry CountyRonaldR.Norton,FamilyCourtJudge

OpinionNo.27925

HeardJune12,2019-FiledOctober30,2019

AFFIRMEDASMODIFIED

Whitney BoykinHarrison,McGowanHood&Felder,LLC, of Columbia; Carolyn R. Hills and Jennifer DarrowHills,Hills&Hills,PC,ofMyrtleBeach,forAppellant.

Stuart Wesley Snow, Dusenbury, Snow & Evans, PA, ofFlorence;CharlesEdwardParrish,CharlesEdwardParrish,PA,ofConway,forRespondents.

JUSTICE FEW:Thisisachallengetothefamilycourt'sorderpermittinggrandparentvisitationundersubsection63-3-530(A)(33)oftheSouthCarolinaCode(Supp. 2019).We reject the mother's argument the subsection is unconstitutional.Wefindthegrandparentssatisfiedtherequirementsofthesubsectionandareentitled

to have some visitation.Thus, we affirm.However, we find it necessary toaccommodate reasonable restrictions the mother sought to impose on visitation.Inlightofthis finding,wemodifythevisitationschedule.

1. FactsandProceduralHistory

StaceyandTammieBazenmarriedin1999andlivedinMyrtleBeach.Themarriagewas unstable, with frequent separations and accusations that Stacey was unfaithful.Theirfirstdaughterwasbornin2004.Theylaterhadason,butheneverleftneonatalintensive 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. Staceywas living at the home of his parentsLaverne and Pansy Bazenin Pamplico,SouthCarolina.PamplicoislocatedineasternFlorenceCounty,approximatelyfiftymilesfromwherethechildren livewith TammieinMyrtleBeach.

The grandparents saw the children frequently until Stacey died, mostly in MyrtleBeach.DuringtheperiodsofStaceyandTammie'sseparation,includingatthetimeof Stacey's death, the children would visit with Stacey at the grandparents' home.The grandparents developed a positive, loving relationship with the children.Thechildrenwere9 and 5atthetimeofStacey's death.

As the family court found, Tammie and the grandparents "had a great amount ofanimositybetweenthem."Tammie'srelationshipwiththegrandparentssouredwhenthe twins were very young.After she was told Stacey was having an affair, shediscussed the situation with Stacey's father, Laverne.Tammie felt Laverne did notsupporther.WhenTammieandStaceyeventuallyreconciled,shefeltherrelationship with his parents was different.She testified, "I didn't feel welcomedanymore.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 truekindness."She testified the grandparents resented her for reporting Stacey to thepoliceforassaultingher,andLavernetoldhershe"neverloved"his son.

Soon after Stacey died, Tammie had a dispute with the grandparents over Stacey'sestate.The dispute carried over into their communication about the grandparentsseeing the children.At one point not long after Stacey's funeral, Tammie told thechildrenin the presence of the grandparents"Y'all won't see Pawpaw [Laverne]anymore."Afterthatday,thegrandparentssawthechildrenonlyoccasionallyuntilearly2015whentheirgreatgrandmotherpassed away.Afterthat,thegrandparents

didnotseethechildrenagainuntilThanksgiving2015,whentheywenttoTammie'shome unannounced.After a short visit that day, Tammie told them not to show upunannounced and said "you need to call before you come."The family courtsummed up the relationship between Tammie and the grandparents during trial,stating,"It'ssopainfullyobvioustothecourtthatthesepeopledonotgetalong."

ThegrandparentsfiledsuitinfamilycourtinJuly2016seekinganorderpursuanttosubsection 63-3-530(A)(33) requiring Tammie to allow visitation. The case went totrial in October 2017.The family court entered an order on November 17, 2017,granting visitation.Tammie appeals the November 2017 order.Because Tammiechallenges the constitutionality of subsection 63-3-530(A)(33), the court of appealstransferred the appeal to this Court pursuant to Rule 203(d)(1)(A)(ii) of the SouthCarolina Appellate Court Rules, which requires appeals to be filed in the SupremeCourt "where the principal issue is one of the constitutionality of the law," andpursuant to Rule 204(a), permitting the court of appeals to transfer an appeal to theappropriateappellatecourt.

1. Analysis

The Due Process Clause of the Fourteenth Amendment to the Constitution of theUnited States protects a parent's "fundamental right" to make decisions concerningthe welfare and upbringing of her minor children. Camburn v. Smith, 355 S.C. 574,579,586S.E.2d565,567(2003)(citingTroxelv.Granville,530U.S.57,66,120

S.Ct.2054,2060,147L.Ed.2d49,56-57(2000)).However,subsection63-3-

530(A)(33) grants the family court power "to order visitation for the grandparent ofa minor child" against the wishes of a parent if the grandparent establishes theelementsset forth in thesubsection.Thoseelements are:

1. at least one parent must be deceased, or the parents mustbedivorcedor"livingseparateandapartindifferenthabitats," 63-3-530(A)(33);

1. the parent has unreasonably deprived the grandparent oftheopportunitytovisitwiththechildformorethanninetydays, 63-3-530(A)(33)(1);

1. thegrandparentvisitationwillnotinterferewiththeparent'srelationshipwiththechild,63-3-530(A)(33)(2);and

1. the family court finds by clear and convincing evidencethattheparentsareunfit,or"therearecompellingcircumstancestoovercomethepresumptionthattheparental 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 infringesonherrightasaparenttodecidewhenandunderwhatcircumstancesthegrandparentsmayvisitthechildrenoverherobjection.Shealsoarguesevenifthesubsection is not unconstitutionalthe family court applied it in her case in such awayastounconstitutionallyinfringeonherparentaldecision-makingauthority.

1. ConstitutionalityofSubsection63-3-530(A)(33)

TammiereliesprimarilyonTroxel,inwhichtheSupremeCourtoftheUnitedStatesfounda"nonparentalvisitationstatute"intheStateofWashingtontobe"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 disregardandoverturnanydecisionbyafitcustodialparentconcerningvisitationwheneverathird party affected by the decision files a visitation petition, based solely on thejudge'sdeterminationofthechild'sbestinterests."530U.S.at67,120S.Ct.at2061,147 L. Ed. 2d at 57-58.The Court recognized that the Due Process Clause of theFourteenthAmendment"'providesheightenedprotectionagainstgovernmentinterference with certain fundamental rights and liberty interests,'" 530 U.S. at 65,120S.Ct.at2060,147L.Ed.2dat56(quotingWashingtonv.Glucksberg,521U.S.702,720,117S.Ct.2258,2267,138L.Ed.2d772,787(1997)),and"theinterest

of parents in the care, custody, and control of their children [] is perhaps the oldestof the fundamental liberty interests," 530 U.S. at 65, 120 S. Ct. at 2060, 147 L. Ed.2d at 56; see also530 U.S. at 66, 120 S. Ct. at 2060, 147 L. Ed. 2d at 57 (stating "itcannot now be doubted that the Due Process Clause of the Fourteenth Amendmentprotects the fundamental right of parents to make decisions concerning the care,custody, and control of their children").A plurality of four Justices stated "thevisitation order in this case was an unconstitutional infringement on [the parent's]fundamentalrighttomakedecisionsconcerningthecare,custody,andcontrolofher

two daughters."530U.S.at 72, 120 S.Ct.at2063,147 L. Ed.2d at 60.Two other

Justicesconcurredinthejudgment.530U.S.at75,80,120S.Ct.at2065,2067,

147 L.Ed.2d at62,65.

Although the Court left open "the precise scope of the parental due process right inthe visitation context," 530 U.S. at 73, 120 S. Ct. at 2064, 147 L. Ed. 2d at 61, theCourt's plurality set out general parameters a nonparental visitation statute shouldinclude to avoid infringement on a parent's constitutional rights.Tammie arguesand we agreethose parameters include "three key principles to promote propervisitation: (1) there must exist a 'presumption that a fit parent will act in the bestinterest of his or her child,' (2) the decision of a fit parent concerning grandparentvisitation is entitled deference, and (3) the impact to the parent-child relationshipshould be considered."Appellant's Br. 12 (citing and quoting Troxel, 530 U.S. at68-70,120 S.Ct.at2061-62,147 L.Ed.2d at58-59).

Subsection 63-3-530(A)(33) addresses each of the "parameters" Tammie contendsare 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, wehave repeatedly interpreted subsection 63-3-530(A)(33) to require that the decisionof the parentprotected by Due Processbe given substantial deference.SeeMarquez v. Caudill, 376 S.C. 229, 248, 656 S.E.2d 737, 747 (2008) (repeating "thecourtmustgive'specialweight'toafitparent'sdecisionregardingvisitation"(citingCamburn,355S.C.at579,586S.E.2dat567)).¹Third,subsection63-3-530(A)(33)(2) specifically requires the family court to find "grandparent visitationwouldnot interferewith theparent-child relationship."

Tammie'sprimaryargument,however,focusesonthefourthelement,andinparticular, the requirement of "compelling circumstances."Tammie argues thatbecause the term "compelling circumstances" is undefined, "the statute fails toprovide the necessary tailoring to withstand [the] strict scrutiny" the Due ProcessClauserequires.SeeInreLuckabaugh,351S.C.122,140,568S.E.2d338,347

¹InCamburn,wereferencedtheSupremeCourt'scriticisminTroxeloftheStateofWashington 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. at579, 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)("Legislationrestrictingorimpairingafundamentalright'issubjectto"strictscrutiny"indeterminingitsconstitutionality.'"(quotingHamiltonv.BoardofTrustees, 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 decisionsforanyreasonitwantsbynotprovidingcriteria,likeharm,"andthestatute"improperlyallowstheStatetooverrideparentaldecisionsbasedonitsowndeterminationthatthecircumstancespresentedarecompelling."Forreasonswewillexplain in Section II B in our discussion of each element in the factual context ofthis case,werejectTammie's argument.²

Therefore,wefindsubsection63-3-530(A)(33)isnotunconstitutional.SeeMarquez,376S.C.at249,656S.E.2dat747(stating"wehavealreadyruledthatthegrandparentvisitationstatuteisnotfaciallyinvalidbecauseitcanbeconstitutionallyappliedintheappropriatecircumstances"(citingCamburn,355S.C.at579-80,586S.E.2d at568)).³

1. Subsection63-3-530(A)(33)asApplied

Ourfindingsubsection63-3-530(A)(33)isconstitutionalmeansthatifthesubsectionisappliedcorrectly,therewillbenounconstitutionalinfringementonthe

² Tammie also argues "the statute does not require any evaluation of the petitioninggrandparent, including whether a grandparent is a fit caregiver."We disagree.Afamily court must consider the fitness of a grandparent in determining whether thedenialofvisitation,oranylimitation,isunreasonableunderthesecondelement.SeeCamburn, 355 S.C. at 580, 586 S.E.2d at 568 (relying on evidence of grandparentunfitnessinfindingthemother'sdecisiontodenyvisitationwasreasonable).

³ Subsection 63-3-530(A)(33) has been overhauled since our decisions in Camburnand Marquez.In 2010, the subsection was amended to include for the first timerequirementsof"unreasonablydepriving"visitationand"compellingcircumstances" to overcome the presumption in favor of a fit parent's decision.ActNo. 267, 2010 S.C. Acts 1920, 1921.The subsection was amended in 2014 toeliminatetheadditional2010requirement"thegrandparentmaintainedarelationship similar to a parent-child relationship with the minor child."Act No.270,2014S.C.Acts2524,2524;seeGranthamv.Weatherford,425S.C.111,116,

819S.E.2d765,767-68(Ct.App.2018)(quotingthe2010version).

parent'sfundamentalrighttomakedecisionsconcerningthewelfareandupbringingofherminorchildren.Ifthesubsectionisnotappliedcorrectly,however,therecouldbe such an unconstitutional deprivation.Because we review substantive decisionsof 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 byexaminingeach oftheelementsthegrandparents mustsatisfy.

Stacey'sdeathsatisfiesthefirstelement.⁴Theremainingelementswillrequiremoreanalysis.

Astothesecondelement,wefindTammiedeprivedthegrandparentsoftheopportunity to visit. Officially, Tammie contends she is willing to permit visitation.In her answer, Tammie denied the allegation she did not allow Laverne and Pansyto visit their grandchildren.She testified she never said "no" when they requestedvisitation. While she admitted she is "not accommodating them the way they wouldlike for me to," she testified she has "no issues" with them calling and visiting thechildren. As the family court found, "[Tammie] stated several times that she had noobjectiontothegrandparentsseeingthechildrenatextracurricularfunctions,schoolfunctions, visits at or near the vicinity of the children's home, and had no issue withthechildrenhavingtelephonecontact withthegrandparents."

In reality, however, Tammie has consistently refused to permit the grandparents tovisit with the children.Laverne and Pansy both testified they attempted to call andvisit on numerous occasions.Tammie conceded this in her testimony.However,Tammierepeatedlyrefusedtoacceptorreturntheircallswhentheytriedtoscheduleavisit.Onseveraloccasions,theycalledandaskedoneofthechildrentocheckwithTammieforpermissiontovisit,butTammieneverresponded.EvenattrialTammieresisted allowing visitation.When asked whether she would be willing to providethe grandparents with a calendar of school and extracurricular functions so thegrandparentscouldattend,Tammierepeatedlystatedtheycouldfindthatinformationon"thewebsite."

ThefamilycourtfoundTammie"has...deniedthegrandparentsopportunitytovisitwiththeminorchildrenbyfailingtoallowcommunications."Weagreewiththat

⁴AswewillexplaininourdiscussionofMarquezbelow,Stacey's deathisrelevanttothefourth element.However,it "satisfies" onlythefirst element.

finding.Tammieclaimssheiswilling toallow visitation.Nevertheless,thegrandparentshavenotbeenabletoseethechildrensinceThanksgiving2015,excepton a few occasions when they showed up unannounced at the children's home or atsportingevents,despiteTammie's admonitionagainst doingso.

Also as to the second element, we must consider whether Tammie depriving thegrandparentstheopportunitytovisitthechildrenhasbeenunreasonable.Thefamilycourt found Tammie's denial was unreasonable, and we agree.Tammie testified, "Iknow they love [their grandparents]."The guardian wrote in her report, "There iscertainly a benefit to maintaining a connection and contact between the girls andtheir father's side of the family."Tammie explained the children had a hard timegetting over the death of their father and described her own efforts to ensure "thegirlswouldnever forgettheirfather."Tammietestifiedshefrequently needssomeone to stay with the eldest daughter or the twins while she is out with one ofthe others.The children's grandparents could easily fill this role, and they haveclearly indicated their eagerness to serve it.There are, therefore, several reasonsTammieshould welcomeand encouragevisitation.

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 alegitimate 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, themotherrefusedvisitationwiththegrandparents"becauseshefeltitwasnota'healthyenvironment.'"355 S.C. at 577, 586 S.E.2d at 567.We stated, "She objects thatGrandfather drinks, uses abusive language, and denigrates the children's fathers.Because Grandfather was physically and mentally abusive to her when she was achild, she does not consider him her father."Id.Refusing visitation under thosecircumstances was reasonable, and in Camburnwe upheld the mother's refusal onthatbasis.355S.C.at580,586S.E.2dat568;seealsoBrownv.Key,425S.C.490,

498, 823 S.E.2d 212, 216 (Ct. App. 2019) (finding the mother's decision to limitvisitationwasreasonablewhereshe"wantedthevisitationsupervisedbecauseofthehostility between the parties following Father's death and because Child was youngandhad not spentmuch timewith Grandmother").

TheburdenofprovingtheunreasonablenessofTammie'sbehaviorisonthegrandparents.However, nothing in this record suggests any reason Tammie mayhave for denying visitation as she has done. We see no basis for legitimate concernoverthefitnessofthegrandparents,ortheirabilitytoadequatelysupervisethe

children during visits.The family court found Tammie "was allowing her feelingsabout the grandparents to interfere with what may be in the best interests of thechildren."Animosity against the grandparents is not a valid reason to deny themvisitation.While we are careful to keep the burden of proof on the grandparentseeking visitation, a reasonable denial of visitation must have some basis in theparent'sviewofthebestinterest ofthechild.

Wepause here to stress thatwhethera parent'sdecisionto deny visitationisunreasonable is not dispositive of a subsection 63-3-530(A)(33) analysis.It is onlyone of the elements.The grandparents must still establish the other elements.Aswe 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 casebecauseTammiehasbeen"unreasonablydeprivingthegrandparent[s]oftheopportunityto visit with thechild[ren]."

Astothethirdelement,thereisnoevidenceanywhereinthisrecordthatgrandparentvisitation will interfere with Tammie's relationship with her children.Nor hasTammie argued that it might.In fact, the only indication in this record is that ahealthy relationship between the children and their paternal grandparents will begood for the children and will not interfere with Tammie's relationship with herchildren.

We now turn to the pivotal issue in this case, the fourth element.No one questionsTammie's fitness as a parent.Therefore, the grandparents must satisfy this elementwith clear and convincing evidence of "compelling circumstances" to overcome thepresumption in favor of a fit parent's decisions about her children.We begin ourdiscussionofthiselementbyaddressingtwolegalargumentsTammiemakesconcerningwhatcircumstancesmaybesufficiently"compelling"toavoidinfringement ofherconstitutional rights.

First, she argues the undefined term "compelling circumstances" leaves the familycourt with "ungoverned" discretion to second-guess sound decisions of a fit parent.We disagree.We have construed the term "compelling circumstances" narrowlyand will continue to do soin light of the constitutional rights it is designed toprotect.See, e.g., Camburn, 355 S.C. at 579, 586 S.E.2d at 568 ("The fact that achild may benefit from contact with the grandparent, or that the parent's refusal issimplynotreasonableinthecourt'sview,doesnotjustifygovernmentinterference

in the parental decision.").⁵As the remainder of our discussion will demonstrate, afamilycourtmaynotoverruleafitparent'sdecisionandimposegrandparentvisitation based on its own view of the child's best interests, or its own conceptionofwhat is acompelling circumstance.

Second,TammiearguesweshouldoverruleMarqueztotheextentitholdsthedeathof a parent is a "compelling circumstance" to justify invalidating a parent's decisionregarding visitation. We believe Tammie reads Marqueztoo broadly. Marquezwas"anextremelyclosecase,"376S.C.at250,656S.E.2dat748(Toal,C.J.,concurringin part), with remarkably unique circumstances.⁶ In those unique circumstances, westated"abiologicalparent^['^]sdeathandanattempttomaintaintieswiththatdeceasedparent^['^]sfamilymaybecompellingcircumstancesjustifyingorderingvisitationovera fit parent^['^]s objection."376 S.C. at 249, 656 S.E.2d at 747 (emphasis added).Itwastheneedto"maintainties"forthebenefitofthechildrenintheuniquecircumstancesnot merely the death of the motherthat drove our decision inMarquez.Marquezdoesnotstandforthepropositionthatabiologicalparent'sdeath

⁵Seeinfranote7.

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 hisparentalrightswereterminated.376S.C.at234,656S.E.2dat739.Fiveyearsafterthe mother married David, they had a child together. 376 S.C. at 233, 656 S.E.2d at739. When the second child was almost four, the mother committed suicide. Id. Atthe time of her death, she and David were separated, and David had pending anaction for custody of both children.376 S.C. at 234, 656 S.E.2d at 739.When themother 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.2dat 740.Two guardians "testified [the children] should not be divided."376 S.C. at239, 656 S.E.2d at 742.In these unique circumstances, the family court permittedDavid 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 thegrandmothershouldhavevisitation,"analyz[ing]thevisitationissueasiftheStepfather is the biological father."376 S.C. at 247, 656 S.E.2d at 746.The factsandcircumstances ofMarquezbearlittlerelationshipto thefactshere.

alonemaybeacompellingcircumstance.⁷Thereis,therefore,noreasontoquestionourdecisioninMarquez.

Manycourtshaverecognized"significantharm"toachildresultingfromunreasonably 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 thechild" 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 grantvisitation will cause the child significant harm"); Williams v. Williams, 501 S.E.2d417, 418 (Va. 1998) (interpreting Virginia nonparental visitation statute to requirefinding of harm to the child from denial of visitation as condition precedent toawardingvisitation).

Here,thereisnoallegationandnoproofthatdenialofvisitationtothegrandparents will cause significant harm to the children.The family court did notspecifically identify any compelling circumstance in this case.Rather, the familycourtrelied onanoverbroadinterpretationof Marquez,stating,

The Court in Marquez. . . held that "a biological parentsdeath and an attempt to maintain ties with that deceasedparentsfamilymaybecompellingcircumstancesjustifying ordering visitation over a fit parents objection."In the present case we appear to have just that situation ofthe death of a parent.It is also established . . . the partiesare unable or unwilling to communicate with each otherandallthreeofthechildrenhaveexpressedadesiretovisitwiththeirpaternal grandparents.

UnlikeinMarquez,however,thefamilycourtinthiscasedidnotexplainanyreasonthereisaneedtomaintaintiesforthebenefitofthechildren.Withoutsuchan

⁷ We decided Marquezin 2008, before the Legislature amended subsection 63-3-530(A)(33)toincludetherequirementofa"compellingcircumstance."SeeActNo.267, 2010 S.C. Acts at 1921.However, this Court has enforced the "compellingcircumstance"requirementsince2003,whenwedecidedCamburn.355S.C.at579,586S.E.2d at568.

explanation based on specific circumstances, the simple facts a parent died, themother is "unwilling to communicate," and "the children have expressed a desire tovisit" do not satisfy the fourth element.Thus, we do not agree that this finding bythe family court is a "compelling circumstance" sufficient to justify overrulingTammie'sdecision.

Fulfillingourdutytoconductadenovoreview,Stoney,422S.C.at596,813S.E.2dat 487, we proceed to examine whether the grandparents established compellingcircumstances by clear and convincing evidence.As we explained above, Tammiehasconsistentlysaidsheconsentstovisitationatthesametimeshehasconsistentlyrefusedtopermitit.Certainly,Tammieisawarethecourtsmayordervisitationonlyifsherefusesit.Withthisknowledge,sheattemptedtokeepthecourtsfromgettinginvolvedbypretendingtoconsent.Tammieinsiststhegrandparentsmustcalltogetpermissiontocometoherhousetoseethechildren,knowingshewillthenrefusetoanswerthephone.ThisisoneexampleofhowTammiehasmanipulatedthejudicialprocessforthepurposeofpreventingthegrandparentsfromseeingthechildren.SeeBrown,425S.C.at498,823S.E.2dat217(recognizingthedangerthat"aparentcancircumventthestatutebyintentionallyanddisingenuouslythwartingagrandparent'sabilitytomeetthestatutoryrequirementsforexample,by. ..intentionallyofferingvisitationwhenparent knowsgrandparentcannotbeavailable").

AtoralargumentbeforethisCourt,counselforthegrandparentsmovedtosupplementtherecordwiththefamilycourt'sSeptember2018orderfindingTammieincontemptforcontinuingtorefusetoallowvisitation.BysubsequentwrittenorderoftheChiefJustice,wegrantedthemotion.Inthecontemptorder,thefamilycourtfound Tammie "willfully failed to comply" with the November 2017 order.Thefamilycourt also foundthefollowing,

• "Asof[August20,2018],despiterepeatedtimelyrequestsforvisitationby[thegrandparents],therehasbeenabsolutely no visitation between [the grandparents] andtheirgrandchildren;"
• Tammie refused to provide the grandparents a calendar ofthechildren'sactivities,asrequiredbytheNovember2017order;
• "[Tammie]continuestobeopposedtovisitation...and

. . . her opposition is exacerbating the situation.[Thegrandparents]haveattemptedtoworkwith[Tammie]to

trytoobtainevenlimitedvisitation. . . .[A]fter[thegrandparents'] attempt to coordinate weekend visits werereportedly thwarted by [Tammie], [they] offered to cometo Myrtle Beach on Father's Day of last year and merelytaketheirgrandchildrentolunchintheMyrtleBeacharea,[Tammie]deniedthemeven thatopportunity."

• "It is clear [Tammie] has no intent to comply" with theNovember2017order.
  1. VisitationSchedule

Wearemindfulthatfamiliesoftendonotgetalong,evenunderthebestofcircumstances.In the course of such struggles, family members are not alwayshonestwitheachother.Ordinarily,deceptivebehaviorwithinfamiliesisbeyondthepower of the court to address. Deceptive behavior must end, however, when familymembersbringtheirdisputesintothecourtsystem.Tammie'srepeatedrepresentations to the family courtand in turn to this Courtthat she welcomesvisitation,when in fact sherefusesit,isunacceptable.

WeagreewiththefamilycourtthatTammie"hasunreasonablydeniedthegrandparentsopportunitytovisitwiththeminorchildrenbyfailingtoallowcommunicationsthroughthehousephoneorhercellphone."Wefindherintentional,deceptive,andnowcontemptuousbehaviordesignedtoappearaccommodatingandcooperativewhilecalculatedtopreventthevisitationsheclaimsto acceptis an intentional effort to keep the court from fulfilling its responsibilityundersubsection63-3-530(A)(33)and theDueProcess Clause.

OurconcernoverTammie'sbehaviorgoesbeyondthefactsheintentionallydeceivedthe court.Her behavior has directly and adversely affected the welfare of thechildren.She damaged the children's previously positive and loving relationshipwith their grandparents. More significantly, Tammie's deliberate attempt to removethe family court from its proper role as arbiter of this dispute, combined with herownrefusaltocommunicatewiththegrandparents,putthechildrenintheunwelcome role of peacemakers between their grandparents and their mother.Thishasbeenparticularlytruewiththeeldestdaughter.Inoneinstance,forexample,shesent a text message to her grandfather essentially asking him not to push visitationbecauseshewasafraiditwouldupsethermother.Shetexted,"Pleasestop....

You're breaking a part of -- a part of my family.I love you, but you're hurting mymomsomuch,andsheneeds--meanseverythingtome."Asthefamilycourtfound

intheSeptember2018contemptorder,Tammie'srefusaltocomplywiththeNovember2017order"is exacerbatingthesituation."

Tammie'suseofdeceptiontokeepthefamilycourtfromfulfillingitsdutytomanagethis dispute, and her continued refusal to comply with the November 2017 order,places her daughters in the completely inappropriate role of mediating the disputebetween her grandparents and her mother. No child should ever be placed in such aposition.

WefindTammie'sintentional,deceptive,andcontemptuousbehaviorthatnotonlycut off the relationship between the grandparents and the children, but also madethem proxiesforcommunicationbetweenTammieandthe grandparentsisacompelling circumstance that justifies the State to intervene, and to order thatTammiepermitthegrandparentsto havevisitation withthechildren.

We now turn to the question of what is the appropriate visitation schedule in thiscase.Webeginbyobservingthatgrandparentvisitationisnotthesameasvisitationforaparent.SeeDodgev.Dodge,332S.C.401,416,505S.E.2d344,352(Ct.App.1998) (finding grandparent visitation "is not the same situation as when the courtawards reasonable visitation to a noncustodial parent").Family courts do not deferto the preferences of a custodial parent in deciding visitation for a noncustodialparent.For grandparent visitation, however, courts must give deference to thejudgment of the parent.Just as a court must defer to a parent's decision on the factofgrandparentvisitation,acourtmustalsodefertoreasonablelimitationsorconditionsafitparentchoosesto imposeongrandparentvisitation.

In Troxelitself, the question was not the fact of grandparent visitation, but whetherthecourtmayoverruletheparent'sdecisiononlimitationstovisitation.See530

U.S. at 61, 120 S. Ct. at 2058, 147 L. Ed. 2d at 54 ("Granville did not opposevisitation altogether, but instead asked the court to order one day of visitation permonth with no overnight stay."); 530 U.S. at 71, 120 S. Ct. at 2062-63, 147 L. Ed.2dat60(noting"thereisnoallegationthatGranvilleeversoughttocutoffvisitationentirely.Rather,thepresentdisputeoriginatedwhenGranvilleinformedtheTroxelsthat she would prefer to restrict their visitation . . . to one short visit per month andspecialholidays").TheSupremeCourtheldtheDueProcessClauseprotectsafit

parent'srighttoimposelimitationsongrandparentvisitation.530U.S.at72,120S.Ct.at2064,147L.Ed.2d at60-61.

Similarly, in the court of appeals' recent decision in Brown, the question before thecourt was not the fact of visitation, but whether limitations the mother sought toplace on that visitationmust be honored.As the court of appeals explained,"Grandmotherwasofferedsupervisedvisitation...onmultipleoccasions."425

S.C. at 496, 823 S.E.2d at 215."Grandmother's central point of contention" to thecourt was "Mother's insistence that visitation be supervised was unreasonable."Id.Thefamilycourtoverruledthemother'slimitations,butthecourtofappealsreversed.425 S.C.at499,823 S.E.2d at217.

In this case, Tammie explained she has concerns about overnight visitation inPamplico.Whilesheconceded,"Iamnotaccommodatingthemthewaytheywouldlikeformeto,"shejustifiedherreluctancetoprovidethevisitationthegrandparentswant because "[the children's] lives are in Myrtle Beach, not in Pamplico."Sheexplained,

My children are very active children. They do soccer, andduringsoccerseason,theyhaveasoccergameeverySaturday for the YMCA.My smallest of the twins wantsto do travel soccer like her older sister did because she isgetting that good. They do, or they did dance last fall. Orlast year was dance.[One of the twins is] really intodancing.My oldest daughter is a cheerleader, and shecheers.And also plays soccer.She made JV soccer herseventhgradeyear,soshe's good too.

We are active members in our church.They not onlyattend church on Sundays but they also attend church onWednesday nights where they're a member of the GA's,and [theoldest]isinasmall youthgroup.

Anditseems likewehavesomething everyday.Theydotumbling.[The oldest] does private tumbling lessons onSaturdays.Shedoesviolinlessonsandgymnastics.

So, I mean, they're doing something all the time.Theystayactive,and theyloveit.

She further explained, "I don't want them to be affected by this, because they arehappy now," and, "I just don't want the girls to be carted off to Pamplico once amonth . . . when they have their lives here in Myrtle Beach."At the time Tammieexplainedtheseconcerns forthewelfareofherchildren,theywere13 and9.

When fashioning an appropriate schedule of grandparent visitation pursuant tosubsection 63-3-530(A)(33), a court must attempt to accommodate a fit parent'sreasonable concerns for the welfare of her children. Reasonable limitations a parentchooses to impose on grandparent visitation may not be overruled by a court absenta full subsection 63-3-530(A)(33) analysis as to each such limitation.A court mustdetermine the grandparent has satisfied each of the four elements, particularly theunreasonablenessofthelimitationandtheexistenceofcompellingcircumstances.

Whenapplicable,thecourtshouldalsoconsidertheamountandcharacterofthetimethe 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 inGrantham.There, the family court set what initially appears to be an excessivegrandparentvisitationschedule:"oneweekendofvisitationpermonth"forthreefulldays, "from 5:00 P.M. on Thursday until 5:00 P.M. on Sunday," and "one week ofsummervisitation."425S.C.at114,819S.E.2dat767-68.Afteracloseexaminationoftheuniquefactsofthatcaseparticularlytheparent-likerelationshipthe grandparents had with the children before the mother committed suicidethefrequency, duration, and character of the visitation the court of appeals approvedappear reasonable. The court of appeals explained the nature of the relationship thegrandparentshadwith thechildren beforetheirmother'sdeath,

Grandparents . . . helped Mother take care of the children.Grandparents were involved in the children's lives sincebirth,oftentakingcareofthechildrenmultipletimeseachweek.Grandparents maintained a relationship with thechildren much like parents: taking and picking up thechildrenfromschool,cookingforthechildren,bathingthechildren, buying clothes for the children, and taking thechildrento doctor's appointments.

425 S.C.at113,819S.E.2dat766.

Whengrandparentshave suchaparent-like relationship, itcanbe particularlyimportanttothewelfareofthechildrenforthecourttomaintaintherelationship.InGrantham,thegrandparents'closerelationshipdevelopedbecausethe"[f]atheroftenworked long shifts and traveled out of town," and the mother "began to suffer fromseveredepressionandsubstanceabuse"whenthechildrenwereveryyoung.425

S.C. at 113-14, 819 S.E.2d at 766.When the mother died, family members andothers openly suggested the father was responsible for the mother's suicide, and thefather "immediately limited how often Grandparents saw the children."425 S.C. at114, 819 S.E.2d at 766.There was "a public altercation" between the father's newwife and the grandparents "in front of the children," and another "confrontation"between them over the father's attempts to limit the grandparents' access to thechildren.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,thefather"stoppedGrandparentsfromseeingthechildrenaltogether."Id.The unique facts of Granthamjustified the visitation schedule the court of appealsapprovedin that case.

Here, the grandparents never acted in a parental capacity, and there is no reason tobelievetheyareneedednowasaparent-likesourceofstabilityinthechildren'slives.Thefactsofthiscase,therefore,areconsiderablydifferentfromthoseinGrantham.Before Stacey died, the grandparents hardly ever had the children overnight.Withrare exceptions, the only times the children even went to Pamplico they were withStacey.⁸Ordinarily, if the grandparents wanted to visit with the children, they hadtodrivetoMyrtleBeach.

WiththelimitationsTammiesoughttoimposeinmind,andinlightofthehistoryofthe grandparents' visitation with the children, we turn to the visitation scheduleorderedbythefamilycourt:

⁸ As far as we can tell from the record, the children stayed overnight in Pamplicoonly twice when Stacey was not also there.Tammie described "maybe two datenights" 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 awayfrom the grandparents' home hunting or fishing, there is no other indication in therecord the children stayed overnight with the grandparents in Pamplico withoutStacey.

• the children may make unlimited phone contact with thegrandparents;
• thegrandparentsmay:
  • placeonephonecallperweek tothechildren;
  • attendthechildren'sschoolfunctions,summerevents,andextra-curricularactivities(Tammiemustprovidethemacalendar);
  • have eight weekend visits in Pamplico per year,from 9:00 a.m. on Saturday mornings to 4:00 p.m.onSundayafternoons;
  • haveoneweekvisitationeachsummer,inPamplico;
  • have one overnight visit in Pamplico to celebrateChristmasthatisneitherChristmasDaynorChristmasEve.

We find this visitation schedule is excessive, and violates Tammie's due processright to make decisions for the welfare of her children.The limitations Tammiesought to place on visitation are reasonable under the circumstances that existed atthattime.Becauseofthatfactalone,thecourtmaynotoverrulethelimitations.See

63-3-530(A)(33)(1)(thesecondelement,requiringafindingvisitationwas"unreasonably deprived"). In addition, though Tammie's intentional, deceptive, andcontemptuous behavior affecting the well-being of the children is a compellingcircumstancethatjustifiesgivingthegrandparentssomevisitation,itdoesnotatthistime justify overruling Tammie's decision that the children should not have to go toPamplico.See 63-3-530(A)(33)(2)(b) (the fourth element, requiring a finding of"compellingcircumstances").Finally,thevisitationscheduleawardedbythefamilycourt in this case is a sharp increase in the amount, and a significant change in thecharacter,ofvisitation thegrandparents enjoyed beforeStaceydied.

For these reasons, we modify the family court's order to permit the followingvisitationschedule:

• thechildrenmaymakeunlimitedphonecontactwiththegrandparents;
• thegrandparentsmay:
  • placeonephonecallperweek tothechildren;

• attendthechildren'sschoolfunctions,summerevents,andextra-curricularactivities(Tammiemustprovidethemacalendar);
• haveatleastmonthlyvisitsinMyrtleBeachsubjecttoincreasebythefamilycourtforchurch,aschoolevent,ameal,orsomeothereventplannedbythegrandparentsthatdoesnotrequireanovernightstay;
• have one half-day outingnot an overnight visitinMyrtleBeachtocelebrateChristmas,neitherChristmasEvenorChristmas Day.

Weareconcerned,however,thatTammie'srepeatedeffortstopreventvisitationforalmost four years interfered with the grandparents' ability to rebuild and maintain abeneficial relationship with the children.By preventing the maintenance of therelationship, Tammie may have created the potential for significant harm.It couldbecomeacompellingcircumstance,therefore,thattorebuildtherelationship,itwillbenecessarytoreconsiderallowingovernightvisitswiththegrandparentsinPamplico.

Tammie now faces a choice.She may choose to encourageor discourageabeneficial relationship between her children and the grandparents.If she choosesthe former, this Court is confident the visitation schedule we set will foster abeneficial relationship between the children and the grandparents. If she chooses todiscouragetherelationship,evenifsheisintechnicalcompliancewithallorders,⁹itwill be necessary for the family court to reconsider the prospect of overnightvisitation in Pamplico to permit the grandparents to rebuild the loving relationshiptheyhadwith thechildren beforeStaceydied.

Thefamilycourt'sNovember2017ordercontainedmoredetailastothespecificsofthesevisitsthanaresetforthinthisopinion.Forexample,theNovember2017orderprovides the manner in which the grandparents should give Tammie notice ofvisitationrequests,appropriatespacingrequirementsbetweenvisits,andthemanner

⁹ When the family court held Tammie in contempt, it sentenced her to four monthsinprison,suspendedonstrictcompliancewithallcourtorders.IfTammiecontinuesto disobey court orders, grandparent visitation will likely not be an issue becauseTammiewillbeinjail,andthegrandparentswillhavecustodyofthechildren.

in which Tammie must provide a calendar of the children's events.Because thefamily court is more suited to consider these particulars in light of our modificationto 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 visitationorder.The new order should be designed to carry out the visitation schedule wehaveordered,inamannertopromotecooperationbetweenTammieandthegrandparents,and tosuittheneeds ofall involved,particularlythechildren.

1. Conclusion

In Troxel, the Supreme Court recognized that the Due Process Clause restricts thepower of the State to interfere with a fit parent's decisions about the welfare andupbringingofherchild.ToensurewepermitnoDueProcessClauseviolations,thisCourt has strictly scrutinized decisions of our family court allowing grandparentvisitation.In this case, Tammie deliberately manipulated the courtdetracting itfrom itsduty toconductthisscrutinyby falsely assertingshewouldpermitvisitation, but then consistently refusing it.This Court will not tolerate this mannerof deceptive behavior.We affirm the family court's decision to require visitation.Nevertheless,becauseTammie'sreasonablelimitationsonvisitationmustbehonoredon thecurrentfacts ofthiscase,wemodifythevisitationschedule.

AFFIRMEDASMODIFIED.

BEATTY,C.J.,JAMES,J.,andActingJusticeJohnD.Geathers,concur.KITTREDGE,J.,concurringinpartanddissentingin

partinaseparateopinion.

JUSTICE KITTREDGE:I am in agreement with most of Justice Few's excellentmajority opinion.I write separately because I would allow limited overnightvisitationin Pamplico,South Carolina.

In my judgment, the critical factor in this case is the prominent and significant rolethe grandparents had in the lives of their grandchildren prior to the death of StaceyBazen.The grandparents have been a positive fixture for the children throughouttheir lives, at least until Stacey's death.That, in my judgment, is the key factor thatmerits a finding of compelling circumstances warranting grandparent visitation.Itis unquestioned that the children spent much time with their grandparents inPamplico, which is only about fifty miles from Myrtle Beach.For this reason, Iwould permit overnight visitation in Pamplico, albeit less frequently than orderedbythefamilycourt.

I join in the majority's decision to remand to the family court to order a detailedand specific visitation plan.Detailed instructions are regrettably necessitated bythe shameful conduct of Tammie Bazen, who spoke of her desire for grandparentvisitation while maliciously preventing any contact between the children and thegrandparents.Tammie's conduct requires the family court to provide as muchdetail as possible in the visitation schedule.Tammie's lies and manipulationforeclose the preferred approach of allowing parties the flexibility to cooperate andwork together.I also join the majority in admonishing Tammie that her continuedcontemptuousbehaviorwillnot betolerated.

However, in addition to the general visitation schedule set forth in the majorityopinion, I would add the following visitation:overnight, weekend visitation everythird month, in Pamplico (or Myrtle Beach, as selected by the grandparents) fromFriday at 6:00 PM until Sunday at 6:00 PM, with the grandparents responsible fortransportation.This limited overnight visitation every quarter must not conflictwith the children's established activities or as otherwise superseded by thescheduled division of time between Tammie and the grandparents.I part companywith the majority only as to my judgment to allow the grandparents limitedweekendovernightvisitationfourtimes ayear.

I add a final comment.The family court must carefully assess the currentsituation.There are two primary factors involved.First, the absence of anycontact 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 andrelationshipwiththegrandparents.Ifso,agradualbreak-inperiodofvisitation

may be warranted.A second factor, irrespective of Tammie's conduct, is simplythe ages of the children.As parents and family court judges understand well, it isoften not easy telling a teenager what to do.Even with fit, mature, and flexibleparents and grandparents, teenagers will frequently push back against ordered,mandated visitation.When this occurs, neither party is to blame.The presence ofthesetwo factorsheightens thedifficult taskthat mayconfront thefamilycourt.

Irespectfullyconcurinpart anddissent in part.