Subcommittee backs bill to require attorneys as guardians ad litem in most private custody cases

The Domestic Relations Business and Probate Law Subcommittee voted 5-0 Thursday to give House Bill 3622 a favorable report as amended, a measure that would require guardian ad litems (GALs) in private child custody or visitation cases generally to be licensed attorneys in good standing with the South Carolina Bar.

The bill would limit lay guardians to cases where both parties are unrepresented unless the parties mutually agree in writing and the court approves a lay appointment. The amendment adopted also gives courts discretion to appoint either a lay or attorney GAL based on the facts and expressly allows individuals already serving as GALs in pending cases to continue their roles unaffected by the change.

Under current South Carolina law, both attorneys and qualified laypersons can be appointed as GALs regardless of whether parties are represented. The bill aims to ensure that when parties have counsel, the GAL is an attorney who is subject to the rules of the bar and the Office of Disciplinary Counsel. Representative David Martin, who spoke in favor of the amendment, said he has “done hundreds, probably thousands of family law cases throughout the state,” and noted that York County has experienced long-serving lay guardians. “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,” Martin said, adding that lay guardians “charge a fraction of what attorney guardian items do.”

Supporters of the amendment told the subcommittee they discussed the change with the South Carolina Bar and that the bar did not object. The amendment also responds to concerns about access to representation: Martin said his primary concern is that two unrepresented parties might not be able to afford an attorney GAL and that allowing a lay GAL by agreement or in unrepresented cases preserves an option for courts to appoint an experienced lay guardian.

The subcommittee chair offered the amendment and the panel approved it by voice vote before a roll-call favorable report. Roll call recorded Representative Bernstein, Representative Paula Calhoun, Representative Guess, Representative John King and Representative David Martin voting aye; the measure received a favorable report as amended with a 5-0 tally and no votes against. The amendment adoption and favorable report were recorded and ordered by roll call.