Guardians ad litem are persons appointed by the court to represent “the best interests of the child” in court proceedings.  In family court, guardians are appointed in contested custody and visitation cases, name changes, adoptions, DSS abuse and neglect cases, and termination of parental rights cases.  In contested custody and visitation cases, the guardian is often selected by the parties’ attorneys.

In private custody cases the guardian is paid by the parties.  The court order appointing the guardian will set the guardian’s hourly rate, the parties’ initial payment (called a “retainer”), and the guardian’s maximum authorized fee (which can only be modified with the parties’ consent or a subsequent court order).  The guardian will also be required to 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.  The guardian’s fee can later be reallocated by the parties in an agreement or by the court at trial.

The guardian ad litem is often an attorney, though anyone who meets the requirements of the private guardian ad litem statute (S.C. Code Ann. § 63-3-810, et. seq) can be a guardian in private custody and visitation cases.  Such non attorney guardians are referred to as “lay guardians.”  Lay guardians are typically persons with social work or child counseling backgrounds, but they can frequently be retired magistrates or school teachers.  The quality of lay guardians (and attorney guardians) can vary widely based on experience, work ethic, and temperament.

While case law and the private guardian ad litem statute provide some guidance on what guardians can and cannot do, there is a substantial difference of opinion on what guardians should be doing.  The two competing philosophies of the guardian’s role can be contrasted as the guardian as investigator and reporter and the guardian as advocate of his or her view of the child’s best interests.  Almost all guardians do a bit of both: the difference is in how much weight an individual guardian gives to each role.

There are a number of limitations on the guardian’s role.  The two most important limitations are the prohibition on guardians providing written custody recommendations in their final report (and substantially limiting guardians making oral recommendations on custody at trial) and the requirement that the guardian’s written reports or recommendations “must be submitted in a manner consistent with the South Carolina Rules of Evidence and other state law.”

The guardian who acts as an investigator and reporter tends to view his or her role as developing a factual understanding of the child’s life, each parent’s life (or other parties if the custody or visitation dispute involves someone other than the child’s parents), and the child’s relationship with parents, step-parents, siblings, relatives and other care providers and providing that information to the court.   A guardian is uniquely situated to interview the parents and child, observe the parents with the child on multiple occasions, do surprise home inspections of the parents, and talk to and obtain information from the parents.  In this role, the guardian’s task is to present the court with the necessary and unbiased information that a judge would want in order to make a just decision on custody and visitation disputes.

The guardian who acts as an advocate for the child’s best interests advocates his or her view of what should be done as regards the decisions the court is asked to make regarding that child.  There are varying ways to view what it means to “advocate” the child’s best interests.  More restrained guardians advocate the child’s best interests by presenting the court all relevant information they can obtain.  Other guardians actually decide what they believe should be done for the child and then attempt to highlight evidence that supports this view and diminish evidence that undermines this view.

While a guardian cannot make explicit custody recommendations in a written report, a report that concludes that the children are doing wonderfully in the mother’s sole custody or that the father has a substantial drinking problem basically lets the court know how the guardian believes custody should be decided.  Often guardians’ reports are rife with inadmissible statements from witnesses or the child or make credibility determinations regarding the parties and witnesses.  It is when guardians act in this manner (or are alleged to have acted in this manner) that they invite the greatest public controversy.

Because the guardian is an advocate for the child’s best interests, the guardian is empowered to bring motions to modify custody or visitation or to add what the guardian believes are necessary restraints on the parents’ activities to protect the child from a parent’s dangerous behavior.  Guardians may also bring motions to increase their fee parameters or obtain payment of fees during the litigation.  Guardians can seek enforcement of any court order being violated, including orders regarding the payment of the guardian’s fees, by bringing a rule to show cause.  Guardians tend to be cautious about bringing such rules to show cause or motions during the litigation process so as not to appear for or against a particular party.

So long as the guardian undertakes the role with diligence and thought, the guardian’s views typically carry great weight with the court, even when the guardian takes a restrained approach .  Thus a party in a custody or visitation dispute should cooperate with the guardian whenever possible, never lie to or deceive the guardian, and should provide the guardian guidance towards the facts that a party believes need to be investigated in order to support that parties’ position on the disputed issues.

For more information on the guardian ad litem:

An Iconoclastic View of the Guardian ad litem‘s Role

The Brave New World of Guardian’s ad litem

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