Who does the guardian ad litem work for?

Posted Tuesday, August 27th, 2013 by Gregory Forman
Filed under Guardians Ad Litem, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

Frequently guardians ad litem take direction regarding their investigation from the parents or attorneys for the parents without exercising their own independent judgment.  Sometimes litigants or attorneys will inform the guardian the case is [some variation of] “close to settled” and ask the guardian to forgo their investigation to hold down fees.  Other times these litigants and attorneys will tell the guardian that only certain areas need to be investigated and that the guardian doesn’t need to meet with the children, do a home study, or write a report.

The problem with being a “cooperative” guardian for the parties and their attorneys is that the guardian doesn’t work for these folks.  Instead the guardian acts “as an officer of the court to represent the interests of the infant or incompetent in the litigation.” Stefan v. Stefan, 320 S.C. 419, 465 S.E.2d 734, 736, n.3 (Ct.App.1995).  A guardian “functions as a representative of the court, appointed to assist the court in making its determination of custody by advocating for the best interest of the children and providing the court with an objective view.” Patel v. Patel, 347 S.C. 281, 287, 555 S.E.2d 386, 389 (2001).  Further the guardian’s “responsibilities and duties” are statutory. S.C. Code § 63-3-830(A).  As an officer of the court, these duties are owed to the court.  These responsibilities mix the general (“representing the best interest of the child”) with the specific (“conducting an independent, balanced, and impartial investigation to determine the facts relevant to the situation of the child and the family”).

The court can only appoint guardians when the parties agree a guardian is needed or when the court “determines that …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.” S.C. Code § 63-3-810 (A). If a guardian has been appointed, it’s either because the parties wanted one or the court found one necessary.  Either way, the guardian should be investigating no matter what the parties or their attorneys request.  Guardians who attempt to appease litigants and attorneys seeking to hold down fees by deferring compliance with § 63-3-830(A) are failing the court system that appointed them.

While one can debate whether or not a guardian has adequately represented the children’s best interests, there is an obvious problem if the guardian has failed in the duty of “meeting with and observing the child on at least one occasion” [§ 63-3-830(A)(2)(b)] or “interviewing parents, caregivers, school officials, law enforcement, and others with knowledge relevant to the case.” § 63-3-830(A)(2)(d).  In both my firsthand and secondhand experience, the same attorneys and litigants who are most imploring in their requests for the guardian to limit his or her investigation are the same folks who will attempt to impeach the integrity and diligence of the guardian at the final hearing when the guardian fails to meet these statutory responsibilities.

The best way to make a guardian’s continued involvement unnecessary is to reach a final resolution on custody and visitation and have that resolution be made a final order of the court.  When I am a guardian that is what I tell the litigants and attorneys who ask me to defer my investigation.  Guardians risk their reputations if they forget they work for the court system that appoints them.

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