Subcommittee narrows who may serve as guardian ad litem in private custody cases

A South Carolina House subcommittee on Thursday adopted an amendment and gave a favorable report to House Bill 3,622, which would generally require guardian ad litems in private child custody or visitation cases to be licensed attorneys in good standing with the South Carolina Bar.

The bill’s sponsor and the subcommittee chair offered an amendment that would allow parties, regardless of whether they are represented, to mutually agree in writing and with court approval to the appointment of a lay guardian ad litem. The amendment also would give the court discretion to appoint either a lay or attorney guardian ad litem based on the facts and circumstances of the case, and it would preserve the eligibility of individuals currently serving as guardians in pending cases.

“This amendment was drafted with the assistance of Representative Barton,” the chair said when presenting the change, and described the amendment’s effect as permitting party agreement on lay guardians and preserving existing appointments. Representative David Martin, who spoke in favor of the amendment, told the committee he had discussed the proposal with the state bar and county practitioners and cited experienced lay guardians in York County who charge substantially less than attorneys. “When I practice family court, I’ve done hundreds, probably thousands of family law cases throughout the state, and we have been very blessed in York County to have some really good lay guardians who have 20 years’ experience,” Martin said. He added that lay guardians can be crucial in cases where both parties are unrepresented and cannot afford an attorney guardian ad litem.

The chair noted the judiciary’s request that guardian ad litems be attorneys when parties are represented so that guardians are subject to bar rules and the Office of Disciplinary Counsel. The amendment keeps a role for lay guardians when both parties are unrepresented or when the parties agree and the court approves.

The subcommittee adopted Amendment 1 by voice vote and then approved a favorable report on HB 3,622 as amended in a roll-call vote of 5-0. Representatives Bernstein, Calhoun, Guest, King and Martin recorded aye votes. The committee’s favorable report was ordered and recorded in the meeting minutes.

If enacted, the bill would change who is eligible for appointment in private custody and visitation matters; it does not itself change qualifications such as age, training, court observation or continuing education that current law already requires for lay guardians.