What is a Guardian ad Litem in South Carolina?
The phrase “Guardian ad litem” is Latin for Guardian “for the suit.” In South Carolina, it is a person appointed by a family court judge to represent the best interests of a child in a legal proceeding. Often in family law matters, the interest of the children can become lost and develop into a point of contention because of the stresses related to divorce, custody and support. Family court cases that commonly require a guardian ad litem include:
- Contested visitation and custody cases
- Legal name changes for minors
- Abuse and neglect cases
- Termination of parental rights
A Guardian may be agreed upon by the parties or their counsel, or may be appointed by the Court. Under either scenario, a Guardian’s appointment order in private cases will typically set forth the Guardian’s functions and scope, hourly rate, and fee cap for the entire case, which can only be modified by agreement or further court order.
Guardian Ad Litem Qualifications
In DSS abuse and neglect cases, the Guardian is typically a non-attorney volunteer. The DSS “lay” Guardian will have undergone Guardian training, and may have a background in teaching, social work, or counseling. This person will also usually have his or her own attorney for any DSS proceedings.
In private family court cases (meaning non-DSS involved cases), a Guardian is typically an attorney, but that is not a requirement. South Carolina Code Section 63-3-20 lists the following qualifications for a guardian ad litem:
- Must be 25 years old or older.
- Must possess a high school diploma or equivalent.
- An attorney guardian ad litem must complete 6 hours of family law continuing legal education (CLE) annually. This CLE must be in the areas of custody and visitation.
- A lay guardian ad litem must complete 9 hours of continuing education for initial qualification. This continuing education must be in the areas of custody/visitation (6 hours) and substantive law and family court procedure (3 hours). A lay guardian ad litem must complete 6 hours of continuing education annually in the areas of custody and visitation.
- A lay guardian ad litem must observe 3 contested custody hearings prior to serving as a guardian ad litem.
Responsibilities of a Guardian Ad Litem
Guardians fulfill two important roles for children in legal proceedings.
- To act as an investigator and reporter for the court, and
- To advocate for what he or she believes are the best interests of the child involved in the case
A guardian needs to develop a proficient understanding of the child’s life and the lives of each parent, any siblings, and any stepparents living with the child. Understanding how the larger family support structure, which can include grandparents, friends, aunt, uncles, and other non-immediate family, can be relevant as well. To gain this understanding, the guardian might complete the following tasks:
- Interview the child (depending on his or her age) and each parent separately
- Observe each parent with the child in a home or in-office environment
- Complete surprise home inspections on each child if there is good cause to do so
- Obtain a detailed history of the situation from each parent while maintaining partiality
The purpose of obtaining this information is to present the judge with a report including unbiased and necessary information the judge would need to decide on custody and other matters. Depending on age and maturity level of the children involved, their preferences may also be considered in custody disputes.
In an advocacy role, the guardian ad litem presents his or her own opinion on what decision would best serve the child. Although South Carolina law prevents guardians from making explicit recommendations in custody cases, the content of their report can influence a judge’s decision. Even after a judge makes an initial decision, a guardian can potentially bring a motion to modify visitation or custody arrangements or recommend restrictions on the parents based on his or her observations. Because a guardian ad litem’s observations can carry significant weight, it is in each parent’s best interest to fully cooperate with him or her.
Benefits of Guardian Ad Litems in South Carolina
South Carolina law considers children incapable of representing themselves in family court matters. A guardian helps give a voice to children by explaining to the judge what the child desires or needs without him or her having to experience a potentially traumatic courtroom scene.
Do You Need a South Carolina Family Law Attorney?
Whether you’re facing a divorce or custody dispute, termination of parental rights and adoption, or another difficult family law issue, The Cate Law Firm is here to help. Please contact our experienced and compassionate South Carolina family law attorneys at your convenience to request a confidential review of your case. We would be happy to further discuss the role of the guardian ad litem at this appointment as well. We can be reached at (864) 585-4226 or by using our online contact form.