If a guardian ad litem (GAL) has been assigned to your child custody case, or if you have heard of guardians ad litem and are wondering whether you should petition a South Carolina Family Court to appoint one, you may have questions about the role a GAL may play in South Carolina child custody cases. An experienced family law attorney from King Law Offices who is familiar with South Carolina’s code of laws regarding the GAL appointments may be able to explain how, when, and why guardians ad litem are sometimes appointed in cases involving child custody disputes. Schedule a consultation at one of our convenient South Carolina locations by calling (888) 748.KING today.
What Is a Guardian Ad Litem?
According to Cornell University Law School’s Legal Information Institute (LII), guardian ad litem (GAL) is a court-appointed position of responsibility that requires inquiry into, and advocacy for, the best interests of individuals who are unable to do this work for themselves. Each GAL is appointed by the court to a specific case (i.e., a person named as a guardian ad litem in one case does not by virtue of that appointment have a similar responsibility with respect to any other case, even one pending before the same court), and typically the individual whose interests the GAL is assigned to protect (also known as the guardian ad litem’s ward) will be either a minor or a person who has been declared legally incompetent (usually pursuant to professional medical and/or psychological evaluation; the specific requirements for reaching a determination of legal incompetence are a matter of state jurisdiction).
The criteria for determining legal incompetence vary from one state to another, but insofar as the appointment of GALs for minors is concerned, guardians ad litem are commonly assigned to children in family law cases that involve parental disagreements over such questions as child custody or parenting time, as well as the related but distinct consideration of visitation rights. GALs may also sometimes be assigned in cases adjudicating a minor’s petition for emancipation. In all of these situations, per LII, a guardian ad litem fulfills his or her duty of advocacy not by arguing for the child’s preferences, but rather by conducting an independent assessment of the situation and making recommendations to the court, based on the results of their fact-finding process, concerning what the GAL believes to be in the child’s best interests.
What Does “Ad Litem” Mean?
The South Carolina Bar Association explains that ad litem is a Latin phrase whose practical meaning can be roughly rendered as “for the purposes of this suit” – in other words, “ad litem” is a qualifier applied to guardian that distinguishes a guardian ad litem from the type of guardian, endowed with broader powers, with which members of the general public are often more familiar. A GAL does not assume the broad powers (or responsibilities) associated with guardianships or conservatorships in other contexts; an individual appointed as guardian ad litem in a custody case will not make decisions regarding the child’s education, upbringing, or medical care. Indeed a GAL’s decision-making will generally be limited to deciding what recommendations he or she will make to the court – and a court is not necessarily bound to follow a guardian ad litem’s recommendations, even though courts generally do place considerable weight on a GAL’s insights.
Who Pays for a Guardian ad Litem in SC?
South Carolina’s judicial system allows for a few different avenues toward the appointment of a guardian ad litem in family law cases. As the South Carolina Bar Association explains, the path toward appointment may affect not only how, but whether, the GAL is paid for his or her services in a particular case.
Petition From a Parent in the Case
Generally speaking, South Carolina parents have the right to petition the court overseeing their family law case to appoint a guardian ad litem to ensure that their child’s best interests are protected. In these instances, the appointment will likely rely on a “private” guardian ad litem, typically an attorney or other professional with appropriate expertise, who will be paid for his or her work related to the case. The parents will be responsible for paying the GAL’s fees, with the amount each parent owes toward the total typically determined by court order.
Motion of the Court
In some cases, the judge overseeing a dispute between parents over child custody or similar matters may determine that it is important to appoint a guardian ad litem to conduct a thorough investigation into aspects of the family situation that might not naturally arise in the process of discovery and disclosure, or in motions filed by either of the parents (or their attorneys, if they are working with professional legal representation). If a SC family law judge decides that a GAL is needed to make sure that the child’s interests are properly accounted for, then the court may, as the state’s bar association explains, appoint a guardian ad litem “on its own motion” and – just as would be the case if one of the parents had petitioned for a guardian ad litem – issue orders directing payment by the parties in the case.
Abuse or Neglect
In addition to the paid guardians ad litem appointed under the above circumstances, cases involving allegations of child abuse or neglect may be susceptible to the services of an unpaid GAL who works on a volunteer basis. In most parts of South Carolina, these services would be provided through the statewide Cass Elias McCarter program administered through the South Carolina Department of Children’s Advocacy. For South Carolina child abuse or child neglect cases handled through the Richland County courts, however, the guardian ad litem may be assigned through the county-level CASA (Court Appointed Special Advocates) program.
What Is the Guardian ad Litem Code in South Carolina?
The statutory authority of judges in the South Carolina Family Courts to appoint guardians ad litem is outlined in the South Carolina Code of Laws, § 63-3-810. Title 63 of the South Carolina Code is also known as the South Carolina Children’s Code due to the chapter’s focus on children’s welfare and particularly the impacts that legal matters addressed in Title 20 – South Carolina’s Code of Domestic Relations, which encompasses the state’s laws governing marriage, separation, and divorce – often have on children. Title 63 was added to the state’s laws in 2008, replacing a repealed chapter within Title 20, which had contained some similar provisions.
An important intellectual underpinning of the Children’s Code is the recognition that the children whose parents are involved in cases before the SC Family Courts are inevitably affected by both the outcomes of those cases and, in many instances, the measures taken during the proceedings – even though the children are, by virtue of their status as minors, not legally able to take part in those proceedings. The provision authorizing the judge in a South Carolina family law case to appoint a guardian ad litem to investigate aspects of the situation that might not ordinarily appear in court filings by either of the parties and deliver to the court informed recommendations regarding the child’s best interests in light of the information thus gleaned, is one of several legislative measures designed to ensure that the consequences of family law disputes for these often unwilling bystanders are not left totally out of account in a court’s decisions.
Speak With a South Carolina Family Law Attorney
Whether you have questions about a guardian ad litem because you are considering asking the judge presiding over your South Carolina family law case to assign one to look after your child’s interests, or on the other hand you have been informed that a South Carolina Family Court has already appointed a GAL to investigate and make recommendations to the court regarding the disposition of your child custody case, speaking with an experienced South Carolina attorney can help you understand what the appointment of a guardian ad litem means for your custody dispute. Call (888) 748.KING today to schedule a consultation with King Law Offices so you can review the particulars of your case with one of our experienced family law attorneys and help you understand the role a guardian ad litem may play in your unique situation.