Subcommittee backs bill to limit guardian ad litem appointments to attorneys except by agreement or court discretion

The Domestic Relations, Business and Probate Law Subcommittee on Thursday gave a favorable report, by roll call vote, to House Bill 3,622 as amended, a measure that would generally require guardian ad litems (GALs) in private child custody and visitation cases to be licensed attorneys in good standing with the South Carolina bar.

The amendment adopted before the vote permits parties, regardless of whether they are represented, to “mutually agree in writing and with court approval” to the appointment of a lay guardian ad litem. It also gives the court discretion to appoint either a lay or attorney guardian based on the facts and circumstances of the case and preserves the eligibility of individuals already serving as GALs in pending cases so their appointments are not disrupted by the change.

The change as drafted would replace the current practice in which both attorneys and qualified laypersons may be appointed as guardians ad litem in private custody or visitation proceedings. Under the proposed law, lay guardians would still have to meet existing nonattorney qualifications related to age, education, training, court observation and continuing education when they serve under the narrow exceptions the amendment preserves.

Representative David Martin, a subcommittee member, told colleagues he added the amendment after consulting the South Carolina Bar and members of the judiciary. He said the bar “seems to be in agreement” and described longstanding lay guardians in York County with “20 years experience,” naming Holly Bennett, Terry Loveless and Terry Hagen as local examples. “The lay guardian items charged a fraction of what attorney guardian items do,” Martin said, and he argued the amendment would preserve access to a guardian for unrepresented litigants who cannot afford an attorney-appointed GAL.

A committee member noted that the judiciary’s leadership had asked that GALs be licensed attorneys when parties are represented so the GALs are subject to the bar’s rules and the Office of Disciplinary Counsel; the amendment retains a pathway for lay GALs where the parties agree or the court finds it appropriate.

The subcommittee adopted the amendment and then ordered a favorable report on the bill as amended by a 5-0 roll call (Representative Bernstein: Aye; Representative Paula Calhoun: Aye; Representative Guest: Aye; Representative John King: Aye; Representative David Martin: Aye). The report advances the bill to the next stage of House consideration.