Subcommittee backs change to guardian ad litem rules, allows limited lay appointments by agreement

The Domestic Relations Business and Probate Law Subcommittee on Thursday gave a favorable report, as amended, to House Bill 3,622, a measure that would generally require guardians ad litem in private child custody and visitation cases to be licensed attorneys. The vote was 5-0.

The bill would change current South Carolina practice, which allows both attorneys and qualified laypersons to serve as guardians ad litem (GALs) in private custody or visitation matters regardless of whether the parties are represented. Under the version reported by the subcommittee, lay GALs would be limited: they could be appointed only in cases where both parties are unrepresented unless the parties mutually agree in writing and the court approves a lay appointment. The amendment also gives the court discretion to appoint either a lay or attorney GAL based on the facts of a particular case and contains a clause preserving the eligibility of individuals already serving in pending cases.

The transcript shows the subcommittee discussed qualifications that lay GALs must meet under current law—age, education, training, court observation and continuing education requirements—but the central change is to make attorney status the default when parties are represented. The amendment referenced assistance from Representative Barton in drafting the change and added the written-consent and court-discretion provisions.

Representative David Martin, a subcommittee member, described longtime lay guardians he has worked with in York County and stressed cost and access issues, saying his concern was for unrepresented parties who could not afford attorney GALs. "We have been very blessed in York County to have some really good lay guardians who have 20 years' experience," Representative David Martin said, naming Holly Bennett, Terry Loveless and Terry Hagen as examples, and noting lay guardians typically "charge a fraction of what attorney guardians do." Representative Martin said he spoke with the bar and that the bar "seems to be in agreement" with the amendment.

Subcommittee members also noted that the judiciary and the chief have asked that GALs be attorneys when parties are represented so that GALs are subject to the South Carolina Bar rules and the Office of Disciplinary Counsel. The subcommittee adopted Amendment 1 and then voted to give HB 3,622 a favorable report as amended; roll call showed Representatives Bernstein, Calhoun, Guess, King and Martin voting "aye." The clerk recorded the result as 5 in favor, none opposed.

The measure now advances with the subcommittee's recommendation. The amendment's written-consent path and the court-discretion language mean that, if enacted, courts could still approve experienced lay GALs in some cases, but the default would shift toward attorney GALs when parties have counsel.