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The Role of the Guardian ad Litem in Family Court

Sometimes, in Family Court in the state of South Carolina, a court will appoint a guardian ad litem.  This can occur in private actions before the court where the visitation or custody rights of a minor child are at issue before the court.

What Are The Qualifications of a Guardian ad Litem?

As a preliminary matter, a guardian ad litem is not required to be an attorney.  Either a layperson or an attorney may serve as a guardian ad litem.   Guardians must meet the following additional requirements in order to serve:

  • A guardian ad litem must have, at a minimum, a high school diploma, or the functional equivalent of a high school diploma;
  • A guardian ad litem must complete at least nine hours of continuing education training, specifically in the areas of visitation and custody for an initial determination of qualifying as a guardian ad litem;
  • Additionally, a guardian ad litem must have three hours of continuing education about substantive law and basic courtroom procedure in family court;
  • Lay guardian ad litems must also attend and observe no less than three cases where custody is contested on the merits and maintain certification of such attendance;
  • Annually thereafter, both attorney and lay guardian ad litems are required to attend ongoing education in the areas of visitation and custody, however a court may waive such a requirement for attorneys; and
  • A guardian ad litem must be at least 25 years of age.

Are There Things That Would Disqualify Someone from Being A Guardian ad Litem?

Yes, there are a few things that would prevent someone from becoming a guardian ad litem, or would require someone to relinquish their role as a guardian ad litem.  These include the following:

  • Persons who have been convicted of any crime considered an Offense Against the Person under South Carolina’s Chapter 3 of Title 16;
  • Persons who have been convicted of any crime considered an Offense Against Morality and Decency under South Carolina’s Chapter 15 of Title 16;
  • Persons who have been convicted of any crime considered a Criminal Domestic Violence under South Carolina’s Chapter 25 of Title 16;
  • Persons who have been convicted of any crime considered a Narcotics and Controlled Substances violation under South Carolina’s Article 3 of Chapter 53 of Title 44;
  • Persons who have been convicted the crime of contributing to the delinquency of a minor in violation of South Carolina statute § 16-70-490; or
  • Persons who are currently or ever have been listed on the Department of Social Services Central Registry of Abuse and Neglect.

When Will A Guardian ad Litem Be Appointed in a Family Law Case?

In cases involving issues regarding visitation or custody of minor children, courts are limited to appointing a guardian ad litem only when certain things have been determined by the court or other specific conditions apply.  First, the court must determine that it is likely the court will not be fully informed as to all the relevant facts of the case without a guardian ad litem.  Next, the court must find there is a “substantial dispute” which leads to the need for a guardian ad litem.   Alternatively, the court may appoint a guardian ad litem when both parties agree that an appointment of a guardian ad litem, approved by the court, is appropriate and consent to the appointment.

What Does a Guardian ad Litem Do, Exactly?

A guardian ad litem has several responsibilities and the tasks a guardian ad litem engages in can be very fact or situation specific.  As a preliminary matter, first and foremost, a guardian ad litem is tasked with representing the best interests of the child.  In order to do this adequately, the guardian ad litem begins by conducting an investigation to ascertain what facts might be relevant to the situation of the specific child and the child’s family.  This investigation is required to be impartial, balanced, and independent from external influences.

What Might Be Included In a Guardian ad Litem’s Investigation?

Guardians will interview parties that may have relevant knowledge of the child and the child’s situation.  Obviously, this will include the child’s parents. Others who may be interviewed could include school officials or caregivers.  In cases wherein law enforcement has had some involvement with the family, interviews with law enforcement officers with knowledge of a specific incident will be appropriate.  Others who have knowledge of the relevant issues, such as neighbors or extended family members might also be interviewed.

Depending on the nature of the case, it may be appropriate for a guardian ad litem to visit the potential alternate home settings which may be available to the child.  This may be to make sure there is enough room for the child, and that the environment is safe and healthy.

Guardian ad litems are tasked with obtaining and reviewing documents that may be relevant to the child’s situation.  The documents include medical records of the child, as well as the child’s school records.  There may be instances where a review of the medical records of the parties could be relevant as well.

The Guardian ad litem is expected to meet with the child on at least one occasion. During this meeting, the guardian ad litem is tasked with observing the child and, depending the child’s age, interviewing the child.

Where it is deemed necessary, a guardian ad litem will obtain the criminal history of each of the parties.

Finally, guardians will consider the wishes of the child, where appropriate.

What Other Duties Does a Guardian ad Litem Have?

When necessary, clear and specific recommendations can be made for services, treatment, or even evaluation for the child or the family.  Guardian ad litems attend all court hearings related to custody and visitation.  Guardians maintain a complete file of their investigation, including their notes.  They are also responsible for providing written reports to the court and the parties about their findings.

What Should I Do If I Have a Child Custody Issue?

Determining child custody is a critical matter for many families.  The experienced Greenville, South Carolina family lawyers at the Elliott Frazier Law Firm, LLC can help.  Contact us today.

Your lawyer for your life.

Greenville, Spartanburg, Oconee, Anderson, Pickens, South Carolina Attorney At Law