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The difference between a guardian investigating and a guardian recommending

A few weeks ago I was appointed guardian in a private case.  An attorney for one of the parents, who had never worked with me before as a guardian, called to inquire about past cases in which I had been a guardian with her opposing counsel in this new case.  She seemed most concerned with how I had “recommended” in this other attorney’s previous cases.  She was somewhat incredulous when I claimed I did not “recommend” custody for one parent or another; I was somewhat taken aback that someone would think I, in the guardian’s role, recommended who should get custody.  After all, the private guardian ad litem statute states, “[t]he [guardian’s] final written report must not include a recommendation concerning which party should be awarded custody.” S.C. Code Ann. § 63-3-830(A)(6).  I take that provision to further mean that a guardian should not advocate to a judge that a particular party be awarded custody.

My unwillingness to advocate any in-court position on custody doesn’t mean that my report often won’t ultimately help decide custody.  If my investigation shows that a parent is unfit and my report substantiates it, the court is very unlikely to give that parent custody even if I don’t advocate or “recommend” that the other party gain custody.  More subtly, an investigation and report that indicates a particular parent is the primary caretaker of the children, that parent has no fitness issues, and the children are happy and stable in that parent’s care, is likely to be a major factor in deciding custody.  But again, my report won’t be making recommendations and I won’t be advocating any position.

My general reticence to make recommendations or advocate positions in court when I am the guardian actually inspired an upcoming lecture on custody cases in which a parent tries to regain custody from a third-party who has physical custody of the child.  The seminal South Carolina case on that issue is Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989).  Moore sets out four factors that the family court is supposed to analyze in deciding whether to return the child to the parent.  When I was appointed guardian last year on such a case, I intended my investigation to delve into those four factors.  One factor is whether the natural parent is fit.  Obviously if the natural parent is not fit, that parent will not regain custody.  But I had no idea how the court might weigh the other three factors and had no intention of weighing the other three factors in my report even if the natural parent was fit.  Weighing these factors is the judge’s job, not the guardian’s.

I have observed guardians come under attack repeatedly because their reports subtly (sometimes, not so subtly) recommend custody.  Other times guardians are attacked because they give the parties their impressions of the case–there’s nothing in the guardian statute that prevents a guardian from letting the parties and their attorneys know the guardian’s opinion or impressions on custody–without qualifying that opinion and without having undertaken a sufficient investigation or provided sufficient evidence to justify that opinion.  Nothing is going to put a guardian under attack quicker than a guardian who provides opinions unfavorable to one party without having done a sufficient investigation to justify that opinion.

It is much harder to attack the facts a guardian uncovers than the opinions a guardian espouses.  Guardians would have more influence and less stress if they limited their opinions and focused their investigation and reports on the facts.

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