Subcommittee approves amendment to require attorneys as guardian ad litem in represented custody cases, preserves limited lay appointments

The Domestic Relations Business and Probate Law Subcommittee on Thursday gave House Bill 3622 a favorable report as amended, moving toward a requirement that guardian ad litems (GALs) in private child custody and visitation cases be licensed attorneys when parties are represented.

The amendment, offered during the meeting, lets parties "regardless of representation status" mutually agree in writing and with court approval to appoint a lay guardian ad litem, gives judges discretion to appoint either a lay or attorney GAL based on the circumstances, and preserves the ability of individuals already serving in pending cases to continue in those roles unaffected by the change.

Under current South Carolina practice both attorneys and qualified laypersons can be appointed as GALs; the bill would narrow that default to attorneys but keep pathways for lay guardians where both parties are unrepresented or where the parties and court consent. The subcommittee chair explained the change would make GALs "subject to the rules of the bar and of the ODC," an argument the amendment’s sponsors said supports professional accountability.

Representative David Martin, a member of the subcommittee, urged the amendment to preserve access for unrepresented parties and to recognize experienced lay guardians who work at lower cost. He said, "When I practice family court, I've done hundreds, probably thousands of family law cases throughout the state, and we we have been very blessed in York County to have some really good lay guardians who have 20 years experience. Holly Bennett, Terry Loveless, Terry Hagen, and and the lay guardian items charged a fraction of what attorney guardian items do." Martin added that if neither party can afford an attorney, allowing a qualified lay GAL can be important to ensure someone neutral and experienced is available for the case.

The subcommittee adopted the amendment and then voted 5-0 on a roll call to give HB 3622 a favorable report as amended. Representatives who recorded "aye" were Bernstein, Calhoun, Guest, King and Martin. The favorable report sends the bill and amendment forward in the legislative process.

The bill text as discussed would retain existing minimum qualifications for lay GALs (age, education, training, court observation and continuing education) in instances where lay GALs remain permitted. The amendment also expressly protects individuals currently serving in pending cases from being removed solely as a result of the statutory change.

A next step for HB 3622 is consideration by the full committee or further legislative action; the subcommittee record shows a unanimous favorable recommendation as amended.