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Caught in a circular firing squad

I have increasingly come to the conclusion that being a guardian ad litem in South Carolina for private custody cases is an impossible task if one is going to do it well.  The system, as currently constituted, weeds out good guardians while leaving the ineffectual and milquetoast in place.  The work has become so distasteful I no longer actively seek it.  I strongly discourage new family law attorneys from trying to make it an exclusive part of their practice.

The problem goes to the very nature of guardian work.  A good guardian investigates the situation and reports back to the court and the parties in clear language what he or she has learned.  Typically custody cases fall into one of four broad categories.  Even assuming the guardian’s report is accurate and balanced, in at least three of these categories someone is going to be unhappy with the guardian.

The best types of custody cases are those in which the guardian’s investigation shows that both parties are excellent, concerned, and actively involved parents, who have no major and few minor dysfunctions.   This is the only situation in which a guardian’s report can leave both parties happy.  However, even then, one party can be unhappy with the guardian.  That party can object, believing the guardian’s report overstates the other party’s strengths or minimizes that party’s weaknesses.  Even if the parties find the guardian’s report to be accurate, they might still show frustration with the guardian if that report impedes settlement (and such reports will generally impede settlement unless the parties can agree to shared physical and legal custody).

A second type of custody case is one in which the guardian’s investigation shows that both parents are adequate but that one parent is clearly superior (more involved; better adjusted; more closely bonded to the child).  An accurate report is going to anger the merely adequate parent.  Further if the “better” parent does not have temporary custody, that parent will likely be pushing the guardian to seek or support a change of custody.  However, the guardian is prohibited from issuing a written report with “a recommendation concerning which party should be awarded custody.”  S.C. Code § 63-3-830(A)(6).  This makes it difficult for a guardian to advocate a pendente lite change of custody unless there is something truly dangerous to the child.  Further, advocating a pendente lite change of custody that the family court does not approve renders the guardian’s subsequent work rather ineffectual.  Thus, even a parent who is happy with the guardian’s report may be unhappy with the guardian.

I was a guardian in a case fitting this description shortly after the new guardian ad litem statute went into effect in 2003.  Before I was appointed, Mother was awarded custody at the temporary hearing, primarily due to Father’s adultery.  My investigation uncovered that Father was a vastly superior parent: the child was more closely bonded to him; he was more involved at the child’s school and in the child’s education; he had a better relationship with the child’s care providers; he engaged in numerous child-centered activities when he had the child.  Mother was extremely unhappy with my preliminary report documenting this.  Father was extremely unhappy that I didn’t advocate an immediate change of custody.  Father ultimately obtained custody but both parties were displeased with me throughout the case.

A third type of case is one in which the guardian’s investigation determines that one party is fit and the other party is clearly unfit (my offhand definition of unfitness is “would I feel comfortable leaving my child alone with this person for an afternoon”–admittedly a very low threshold).  These are typically cases which should have resolved without much litigation but for the unfit parent’s refusal to accept the obvious.  The party the guardian finds unfit will spend the remainder of the case attacking the guardian.

The final type of case is one in which the guardian finds everyone to be unfit.  If the family court accepts the accuracy of the guardian’s report, the parties’ children will typically end up in foster care or in the custody of a third-party.  In such cases, everyone will be attacking the guardian.

The biggest problem with being a guardian who has made one or both parties unhappy is that many litigants in family court have no hesitation to defame the guardian in an attempt to discredit the guardian’s investigation and report.  The most recent case in which I was the guardian involved a 78 year-old great-grandmother as one of the parties seeking custody.  When I did not advocate her position that she should have custody, she began throwing wild accusations.  She would repeatedly tell folks I said things I didn’t say and claimed that I did things I didn’t do.  At court once, while in the midst of forty-five minute stream-of-consciousness response to a question posed by her attorney–“how’s your health?”–she alluded to the “fact” that I wanted to have sex with her, implying that the reason I wasn’t advocating that she obtain custody was because of her refusal to give into my alleged desires.

Someone can tell a hundred lies about you but if the court believes just one of these lies, your reputation and livelihood can be ruined.  The family court does nothing–zero, nada, zip–to protect guardians from such outlandish allegations.  In such circumstances to do a thorough job as a guardian is to be expected to accept a continuous trashing of one’s reputation without any real recourse.  Representing parents, rather than children, in custody cases not only pays better, it’s much less stressful.

Thus most guardians either get out of the business or become extremely bland in their investigation and reports.  Rather than providing the court a thorough assessment of what their investigation observed and uncovered, such guardians issue vague reports that offend no one but do little to help the court understand what might be in the child’s best interests.  In my experience, the longer someone has worked as a guardian ad litem and the greater percentage of their time devoted to guardian ad litem work, the less likely that guardian is to be useful.  In what other field are experience and effectiveness inversely correlated?

So long as the court system allows litigants to treat guardians as the target in a circular firing squad we should expect good guardians to leave the field and experienced guardians to keep their heads down.

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