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Subcommittee approves change to guardian ad litem rules with exception for agreed lay appointments
Summary
The Domestic Relations Business and Probate Law Subcommittee gave House Bill 3,622 a favorable report as amended, generally requiring guardian ad litems in private custody or visitation cases to be licensed attorneys while preserving limited circumstances for lay guardians.
The Domestic Relations Business and Probate Law Subcommittee on Thursday voted 5-0 to give House Bill 3,622 a favorable report as amended; the bill would generally require guardian ad litems (GALs) in private child custody or visitation cases to be licensed attorneys in good standing with the South Carolina Bar.
The change would remove the routine appointment of qualified laypersons as GALs when one or both parties are represented by counsel; however the amendment adopted by the committee adds two exceptions: parties may mutually agree in writing, with court approval, to a lay guardian ad litem regardless of representation status, and the court may exercise discretion based on case facts to appoint either a lay or attorney GAL. The amendment also preserves eligibility for individuals currently serving as GALs in pending cases.
Under current South Carolina law both attorneys and qualified laypersons can be appointed GALs even when parties have attorneys. The bill as introduced would limit GAL appointments to licensed attorneys, but the amendment — drafted with assistance from Representative Barton, the committee was told — restores limited flexibility. Representative David Martin, a committee member, said the amendment responds to practical concerns in counties with experienced lay guardians: "we have been very blessed in York County to have some really good lay guardians who have 20 years experience," Martin said, and he noted lay guardians often charge a fraction of attorney GAL fees.
Committee members also noted that appointing attorneys as GALs subjects them to the South Carolina Bar rules and the Office of Disciplinary Counsel (ODC). The committee adopted the amendment and then gave the bill a favorable report as amended by a roll-call vote of 5 in favor, none opposed.
The committee did not identify a required implementation date in its discussion. The bill text also retains existing lay-guardian qualifications (age, education, training, court observation and continuing education) for situations in which lay guardians remain eligible.
