Subcommittee backs bill requiring attorneys as guardian ad litem in most private custody cases, with exceptions

The Domestic Relations Business and Probate Law Subcommittee issued a favorable report on House Bill 3,622 as amended, a proposal that would require guardian ad litems (GALs) in private child custody and visitation cases to be licensed attorneys in good standing with the South Carolina Bar in most circumstances.

The bill would change current practice, under which both attorneys and qualified laypersons may be appointed as GALs regardless of whether the parties are represented. Under the version approved by the subcommittee, lay GALs could still be appointed in cases where both parties are unrepresented; the adopted amendment also would permit parties, regardless of representation status, to mutually agree in writing and with court approval to the appointment of a lay GAL. The amendment gives courts discretion to appoint a lay or attorney GAL based on the facts and circumstances of a case and preserves the eligibility of individuals already serving as GALs in pending cases so they may continue their roles unaffected by the change.

The amendment was drafted with assistance from Representative Barton, the sponsor of the change to the amendment, and the proposal as amended also reflects an intention that attorney GALs be subject to the rules of the South Carolina Bar and oversight by the Office of Disciplinary Counsel (ODC) when parties are represented, unless the parties consent otherwise. Representative David Martin, speaking in support, said his practice has relied on experienced lay guardians in some counties and warned of cost barriers for unrepresented parents: "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 ... the lay guardian items charged a fraction of what attorney guardian items do. So my biggest concern is if you have two unrepresented parties who can't even hire an attorney ... it's gonna be difficult for these people to be able to pay an attorney guardian ad litem." The subcommittee preserved the lay‑guardian path in situations where both parties are unrepresented and added the written-consent route and judicial-discretion language in the amendment.

The committee adopted Amendment 1 and then voted to give HB 3,622 a favorable report as amended by roll call. The roll-call recorded Representatives Bernstein, Calhoun, Guess, King and Martin voting "aye," with a final tally of five in favor and none opposed.

The bill, as amended, leaves detailed qualification requirements for lay GALs (age, education, training, court observation and continuing education) intact while tightening the default appointment standard to licensed attorneys in most private custody or visitation matters. The subcommittee noted the bar had been consulted and that the change would place attorney GALs under bar rules when parties are represented.

Pending actions: the subcommittee gave a favorable report as amended; next steps will follow the House rules for reported bills.