Panel narrows proposal requiring attorneys as guardian ad litems, adds court discretion and party agreement

The Domestic Relations, Business and Probate Law Subcommittee approved an amended version of House Bill 3,622 that 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, but would preserve limited roles for lay guardians through court discretion or written party agreement.

The amendment, offered by the chair and drafted with assistance from Representative Barton, “would modify section A1 to permit the parties regardless of representation status to mutually agree in writing and with court approval to the appointment of a lay guardian ad litem,” and would “afford the court discretion based on the facts [and] circumstances of the case at hand to appoint either a lay or attorney guardian ad litem,” the chair explained during the meeting.

The bill, as discussed by the subcommittee, would change current state law under which both attorneys and qualified laypersons can be appointed as guardians ad litem regardless of whether the parties are represented. Under the proposed language, lay guardians could still be appointed only in cases where both parties are unrepresented unless the parties provide written agreement and the court approves. Lay guardians would continue to be required to meet existing qualifications related to age, education, training, court observation and continuing education in custody or visitation matters.

Representative David Martin, who practices family law in York County, spoke in favor of the amendment and urged preserving access to experienced lay guardians in some cases. “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, naming Holly Bennett, Terry Loveless and Terry Hagen and noting lay guardians “charge a fraction of what attorney guardian ad litems do.” Martin said the change would help parties who cannot afford an attorney-appointed GAL.

Committee members also noted the judiciary’s interest in ensuring that attorney GALs remain subject to the South Carolina Bar rules and the Office of Disciplinary Counsel (ODC). The chair said the judiciary and the chief judge had asked that GALs be licensed attorneys when parties are represented, unless the parties agree otherwise.

The subcommittee first voted to adopt Amendment 1 to HB 3,622; members signified assent and the amendment was adopted. The subcommittee then ordered a roll-call vote on a favorable report of HB 3,622 as amended; Representatives Bernstein, Calhoun, Guest, King and Martin voted yes. With a vote of 5 in favor and none against, HB 3,622 received a favorable report as amended from the subcommittee.

The bill’s text, as amended, also contains a savings clause to allow individuals currently serving as attorney or lay guardians in pending cases to continue their roles unaffected by the change.

Subcommittee action at this meeting was limited to the amendment and the favorable report; the bill’s next steps would follow the chamber’s usual legislative process.