The Brave New World of Guardians Ad Litem (April 2003)

Material for South Carolina Bar “Cool Tips” Lecture, April 2003

On January 15, 2003, the new statute regulating guardians ad litem in private custody cases, S.C. Code Ann. § 63-3-810 et. seq. (Supp. 2002), went into effect.  One proponent of the statute sees it as a way “to save your client from those expensive unnecessary officious intermeddlers.” Robert N. Rosen, Getting rid of the GAL, South Carolina Lawyer, January 2003 at 15. While the effect of the new legislation is unlikely to be that extreme, it will cause significant changes in guardian ad litem practice.

The statute came about, in part, due to the South Carolina Supreme Court’s suggestion in Patel v. Patel, 347 S.C. 281, 555 S.E.2d 386, 389 (2001) that legislation be crafted regulating guardians ad litem in private custody cases. Much of the statute merely codifies the standards set forth in cases such as Patel or Shainwald v. Shainwald, 302 S.C. 453, 395 S.E.2d 441 (Ct. App. 1990). However certain provisions break with previous case law.

1. When will guardians now be appointed?

The new statute sets the standards that must be met for the court to appoint a guardian. Under § 63-3-810 “the court may appoint a guardian ad litem only when it determines that: (1) without a guardian ad litem, the court will likely not be fully informed about the facts of the case and there is a substantial dispute which necessitates a guardian ad litem; or (2) both parties consent to the appointment of a guardian ad litem who is approved by the court.”

Most of the family court judges I have spoken to indicate they will be appointing guardians in any seriously contested custody case.  This is a continuation of previous practice.  The judges thinking tends to focus on two concerns. First, the judge who handles the first hearing may not be the judge who hears the case at trial.  Thus, if the first judge does not appoint a guardian, the trial judge may feel unable to render a decision in cases in which a guardian has not been involved.  Second, judges are concerned that litigants may agree to hide information from the court, such as exposure of the minor children to paramours overnight or exposure of the child to criminals or child abusers.  Thus, the court will want a guardian to investigate and determine whether the litigants are hiding important information from the court.

Though some proponents of the new statute had hoped it would substantially reduce the appointment of guardians, it does not appear that this will be the case.

2. Who can now be a guardian?

The new guardian ad litem statutes sets minimum standards for lay and attorney guardians.  The standards are in § 63-3-820:

“(1) a guardian ad litem must be twenty-five years of age or older;

(2) a guardian ad litem must possess a high school diploma or its equivalent;

(3) an attorney guardian ad litem must annually complete a minimum of six hours of family law continuing legal education credit in the areas of custody and visitation; however, this requirement may be waived by the court;

(4) for initial qualification, a lay guardian ad litem must have completed a minimum of nine hours of continuing education in the areas of custody and visitation and three hours of continuing education related to substantive law and procedure in family court. The courses must be approved by the Supreme Court Commission on Continuing Legal Education and Specialization;

(5) a lay guardian ad litem must observe three contested custody merits hearings prior to serving as a guardian ad litem. The lay guardian must maintain a certificate showing that observation of these hearings has been completed. This certificate, which shall be on a form approved by Court Administration, shall state the names of the cases, the dates and the judges involved and shall be attested to by the respective judge; and

(6) lay guardians ad litem must complete annually six hours of continuing education courses in the areas of custody and visitation.”

The primary area of concern for attorneys who wish to be appointed as guardians is requirement three. So far, except for the lay guardian training, continuing legal education credit has not been specifically designated as being in the areas of custody and visitation. While the requirement of attorney continuing legal education is waiveable, some judges will not waive it.

Until CLEs start designating the number of hours a CLE has in the area of custody and visitation, one can obtain compliance with the third requirement by writing the head of the South Carolina Commission on CLE.  If you send them a letter with the CLEs you have attended during the past year, they will note whether you qualify or not.   The address is:  South Carolina Commission on CLE, P.O. Box 2138, Columbia SC 29202.

Persons convicted of certain crimes or on the DSS registry are ineligible to be guardians. “A person shall not be appointed as a guardian ad litem pursuant to Section 63-3-810 who has been convicted of any crime listed in Chapter 3 of Title 16, Offenses Against the Person; in Chapter 15 of Title 16, Offenses Against Morality and Decency; in Chapter 25 of Title 16, Criminal Domestic Violence; in Article 3 of Chapter 53 of Title 44, Narcotics and Controlled Substances; or convicted of the crime of contributing to the delinquency of a minor, provided for in Section 16-17-490.  No person may be appointed as a guardian ad litem pursuant to Section 63-3-810 if he is or has ever been on the Department of Social Services Central Registry of Abuse and Neglect.” § 63-3-820(B & C).

Upon appointment to a case, a guardian ad litem must provide an affidavit to the court and to the parties attesting to compliance with the statutory qualifications of § 63-3-820.  The guardian must also “provide written disclosure to each party:

(1) of the nature, duration, and extent of any relationship the guardian ad litem or any member of the guardian’s immediate family residing in the guardian’s household has with any party;

(2) of any interest adverse to any party or attorney which might cause the impartiality of the guardian ad litem to be challenged;

(3) any membership or participation in any organization related to child abuse, domestic violence, or drug and alcohol abuse.”

S.C. Code Ann. § 63-3-860 (Supp. 2002).

3. What is a guardian now required to do?

Section 63-3-830(A), set forth the responsibilities and duties of a guardian ad litem.  They “include, but are not limited to:

(1) representing the best interest of the child;

(2) conducting an independent, balanced, and impartial investigation to determine the facts relevant to the situation of the child and the family. An investigation must include, but is not limited to:

(I) obtaining and reviewing relevant documents, except that a guardian ad litem must not be compensated for reviewing documents related solely to financial matters not relevant to the suitability of the parents as to custody, visitation, or child support. The guardian ad litem shall have access to the child’s school records and medical records. The guardian ad litem may petition the family court for the medical records of the parties;

(ii) meeting with and observing the child on at least one occasion;

(iii) visiting the home settings if deemed appropriate;

(iv) interviewing parents, caregivers, school officials, law enforcement, and others with knowledge relevant to the case;

(v) obtaining the criminal history of each party when determined necessary; and

(vi) considering the wishes of the child, if appropriate;

(3) advocating for the child’s best interest by making specific and clear suggestions, when necessary, for evaluation, services, and treatment for the child and the child’s family. Evaluations or other services suggested by the guardian ad litem must not be ordered by the court, except upon proper approval by the court or by consent of the parties;

(4) attending all court hearings related to custody and visitation issues, except when attendance is excused by the court or the absence is stipulated by both parties. A guardian must not be compensated for attending a hearing related solely to a financial matter if the matter is not relevant to the suitability of the parents as to custody, visitation, or child support. The guardian must provide accurate, current information directly to the court, and that information must be relevant to matters pending before the court;

(5) maintaining a complete file, including notes. A guardian’s notes are his work product, and are not subject to subpoena; and

(6) presenting to the court and all parties clear and comprehensive written reports including, but not limited to, a final written report regarding the child’s best interest. The final written report may contain conclusions based upon the facts contained in the report. The final written report must be submitted to the court and all parties no later than twenty days prior to the merits hearing, unless that time period is modified by the court, but in no event later than ten days prior to the merits hearing. The ten-day requirement for the submission of the final written report may only be waived by mutual consent of both parties. The final written report must not include a recommendation concerning which party should be awarded custody; nor may the guardian ad litem make a recommendation as to the issue of custody at the merits hearing unless requested by the court for reasons specifically set forth on the record. The guardian ad litem is subject to cross-examination on the facts and conclusions contained in the final written report. The final written report must include the names, addresses, and telephone numbers of those interviewed during the investigation.”

Unlike Patel, the new statute does not require that the guardian conduct home studies of all litigants. This is important for those cases in which one party lives out of state (or even out of the country) and in which that litigant’s home situation is not at issue.  Under Patel a home study by the guardian was required; now it is discretionary.

The biggest change with the new statute is that “the final written report must not include a recommendation concerning which party should be awarded custody; nor may the guardian ad litem make a recommendation as to the issue of custody at the merits hearing unless requested by the court for reasons specifically set forth on the record.”  This is a break with prior case law, which generally allowed the guardian to make custody recommendations. Patel, supra; Shainwald, supra.

Until the new guardian statute gets interpreted by the appellate courts, it is unclear what recommendations (other than for services for the child and parents) the guardian can make. Is a recommendation that each parent gets liberal visitation, a “recommendation concerning which party should be awarded custody”?  Is a recommendation that a parent’s relationship with the child can be maintained by standard visitation a “recommendation concerning which party should be awarded custody”?  Until case law clarifies these issues, family court judges are likely to differ on these matters.

Because the guardian cannot make written recommendations on custody and can testify to his or her recommendations on custody only in limited circumstances, the guardian’s ability to shape the court’s determination of the child’s best interest will become more subtle.  The guardian is unlikely to be allowed to testify as to who should receive custody.  However, the guardian can report and testify to various factors which are important to the court in determining custody, such as the child’s emotional attachment to each parent, each parent’s discipline style or each parent’s willingness to foster the other parent’s relationship with the child.  That is, the guardian will no long be testifying that “father should get custody”; instead the guardian will testify that “father is more attentive to the child’s educational progress” or “the father’s discipline style is more suited to the child’s development.”

Because the guardian will rarely make explicit recommendations, it is important to make sure that the guardian investigates the areas in which one’s client believes his or her custody position is stronger.  This makes it even more important to determine the basis for which the client is seeking custody (or whatever visitation the client is seeking) at the beginning of the case so that the guardian can be provided direction on what areas to investigate that support the client’s position.

4. How will guardians now get paid?

The provisions regarding guardian payment are in § 63-3-850.

“At the time of appointment of a guardian ad litem, the family court judge must set forth the method and rate of compensation for the guardian ad litem, including an initial authorization of a fee based on the facts of the case. If the guardian ad litem determines that it is necessary to exceed the fee initially authorized by the judge, the guardian must provide notice to both parties and obtain the judge’s written authorization or the consent of both parties to charge more than the initially authorized fee.

A guardian appointed by the court is entitled to reasonable compensation, subject to the review and approval of the court. In determining the reasonableness of the fees and costs, the court must take into account:

(1) the complexity of the issues before the court;

(2) the contentiousness of the litigation;

(3) the time expended by the guardian;

(4) the expenses reasonably incurred by the guardian;

(5) the financial ability of each party to pay fees and costs; and

(6) any other factors the court considers necessary.

The guardian ad litem must submit an itemized billing statement of hours, expenses, costs, and fees to the parties and their attorneys pursuant to a schedule as directed by the court.

At any time during the action, a party may petition the court to review the reasonableness of the fees and costs submitted by the guardian ad litem or the attorney for the guardian ad litem.”

The major changes from prior practice is that the guardian must now submit scheduled statements of hours, expenses, costs and fees and that the guardian’s fees is capped unless the guardian obtains court approval or the parties’ written consent to charge more than the initially-set fee. This should encourage guardians to work within their fee and encourage litigants to limit their guardian’s investigation into issues that are disputed and the guardian is best able to investigate.

Generally the guardian is the best person to interview the child and observe the child with the parties. Frequently the guardian is the person best able to interview witnesses who provide direct care for the child, such as teachers, pediatricians and counselors. Often these witnesses may feel awkward talking to individual parties or their attorneys for fear of appearing to “take sides.”  Because these witnesses perceive the guardian as neutral, they are generally willing to talk to the guardian about the child’s progress and living situations.   However, parties who expect the guardian to interview every witness who is expected to be called at trial will probably face a guardian seeking an increase in his or her initially-set fee.

5. Miscellaneous provisions of the new statute

“A guardian ad litem may be removed from a case at the discretion of the court.” § 63-3-870.

“A guardian ad litem must not mediate, attempt to mediate, or act as a mediator in a case to which he has been appointed. However, nothing in this section shall prohibit a guardian ad litem from participating in a mediation or a settlement conference with the consent of the parties.” § 63-3-840.

“The court may appoint an attorney for a lay guardian ad litem. A party or the guardian ad litem may petition the court by motion for the appointment of an attorney for the guardian ad litem. This appointment may be by consent order. The order appointing the attorney must set forth the reasons for the appointment and must establish a method for compensating the attorney.” § 63-3-820(E).