Subcommittee backs requiring attorneys as guardians ad litem in many private custody cases

The Domestic Relations Business and Probate Law Subcommittee gave House Bill 3,622 a favorable report as amended on Thursday, voting 5-0 to generally require guardians ad litem in private child custody or visitation cases to be licensed attorneys in good standing with the South Carolina Bar.

The change would mean that, except where the bill permits otherwise, attorneys — not laypersons — would be appointed as guardians ad litem in private custody or visitation matters. The amendment the committee adopted allows the parties, regardless of whether they are represented, to mutually agree in writing (with court approval) to appoint a lay guardian ad litem; it also gives the court discretion to appoint a lay or attorney guardian based on the facts and circumstances of a case and preserves eligibility for individuals currently serving as guardians in pending cases.

Representative David Martin, a committee member who spoke during debate, said his concern was access and cost for unrepresented parties. "My biggest concern is if you have two unrepresented parties who can't even hire an attorney, but they have a contested custody case," Representative David Martin said, adding that experienced lay guardians in his county charge a fraction of attorney fees. He named Holly Bennett, Terry Loveless and Terry Hagen as experienced lay guardians he has observed in York County.

Committee members and staff also noted that having guardians who are attorneys places them under the rules of the South Carolina Bar and oversight by the Office of Disciplinary Counsel. The amendment was offered with assistance from Representative Barton and was adopted by voice vote; a subsequent roll call on the bill as amended recorded five ayes, none opposed.

The committee discussion emphasized two competing priorities: ensuring professional accountability through attorney oversight and preserving access to a guardian ad litem for parties who cannot afford counsel. The bill as discussed would retain existing lay-guardian qualifications (age, education, training, court observation and continuing education) but limit placements in many cases to licensed attorneys unless the parties and court agree to a lay appointment.

With no further business on the bill, the subcommittee forwarded House Bill 3,622 as amended with a favorable report.

Less critical procedural details: the subcommittee meeting was livestreamed on South Carolina ETV and the recording will be uploaded to SCstatehouse.gov.