As child custody lawyers in Charleston, we frequently deal with a guardian ad litem (GAL) in a private custody dispute. In this article, we will explain what a GAL does, what you should not say to a GAL, and how to become a GAL in South Carolina.
What Does a Guardian Ad Litem Do in South Carolina?
Whenever there is a dispute between parents over a child’s custody, the family court appoints a guardian ad litem to become involved in the case. In South Carolina, a guardian ad litem is a formal advocate for a child involved in a court proceeding such as a family court. Although the GAL generally is appointed at the beginning of a case, the court can appoint a GAL at any time in the legal proceeding when the best interests of the children are at issue.
South Carolina’s guardian ad litem statute, beginning at Section 63-3-810, provides that in private custody disputes, the family court may appoint a guardian ad litem if the parties consent to an appoint or if the court determines that without a guardian, “the court will likely not be fully informed about the facts of the case and there is a substantial dispute which necessitates a guardian ad litem . . . .”
The Guardian Ad Litem’s Job – The guardian ad litem’s job is to impartially investigate matters concerning the child and to communicate to the court about a child’s welfare and about what would be in the child’s best interest. The GAL will investigate the facts, participate in negotiations, and take a position in court as to the child’s welfare. The GAL also may become involved in the financial issues of a case when those issues affect the children.
An investigation by the Guardian – In the investigation, the GAL interviews the parties in the case, reviews the paperwork filed with the court (the pleadings), visits the child’s home or proposed home, interviews the child, and interviews other witnesses. The GAL may also review relevant records, such as school, medical, or mental health records. The GAL may ask other experts, such as a social worker or a psychologist, to provide input and possible future testimony regarding the case. If there are problems with alcohol or drugs, the GAL may ask the judge to order a parent to have screening tests.
Under South Carolina law, there is no official guardian ad litem home visit checklist. However, GALs are typically looking for the same things when they make a home visit. For example, the GAL will assess how secure your home is, talk to you and your children, determine whether there is sufficient food in the home for your children, and note whether each child in your home has their own room and bed.
Oftentimes, we are asked about what not to say to a guardian ad litem. Of course, we want our clients to be truthful when they speak with the GAL. That being said, there are good and “bad” ways of speaking the truth. For example, here is a list of nine things you should not say to a GAL:
- Negative Comments About the Other Parent – If you have legitimate concerns about the other parent such as drug and alcohol abuse, physical abuse, emotional abuse, or other significant concerns, you should share those with the GAL. Otherwise, you should avoid making negative comments about the other parent because the GAL may get the impression that you are the reason for the conflict with the other parent.
- Refusing to Answer the GAL’s Questions – As detailed in this article, the GAL has a major role to play in gathering information for the family court. So, very few topics are “off limits.” If you refuse to answer questions then, again, you may give the impression that you are the source of the conflict.
- “My Kids” vs. “Our Kids” – When you refer to your children as “my children” instead of “our children,” you may give the impression that you are possessive of your children and that you will be less likely to foster a relationship between your children and the other parent.
- Arguing with the GAL – We understand that a custody dispute is highly emotional and can wear heavily on any parent. Also, the GAL may make comments or ask questions that are upsetting to you. Lastly, the GAL may say or act in a way that gives you the impression that the GAL is siding with the other parent. However, if you let your emotions get the best of you and you argue with the GAL, you may hurt your chances of getting custody of your child. Overall, if the GAL is making poor recommendations or is biased toward the other parent, it is best to have your lawyer deal with those issues.
- Griping About Non-Custodial Issues – Don’t spend time complaining about marital troubles that have nothing to do with your children. Keep your focus on sharing information that relates directly to custody and parenting time.
- Own Your Mistakes – If you’ve made mistakes in the past concerning your children, acknowledge those mistakes without making excuses. Also, share how you have learned from your mistakes or what steps you’ve taken to avoid those mistakes in the future.
- Your “Rights” – The GAL is not concerned with your rights in the custody dispute. Rather, the GAL is focused solely on the children and what may be in their best interests. If you focus on yourself, you may give the GAL the impression that you are more concerned with putting your own needs over your children’s needs.
- Exaggerating the Circumstances – Do not overstate the issues or facts that you discuss with the GAL. If you embellish the details, then you may give the impression that you are trying to manipulate the GAL, you are being dishonest about the circumstances, and/or that you are not a reliable source of information about your children.
- Persuading the GAL – Do not try to win the GAL over to your side. When you try to persuade a GAL, you may give the impression that you are manipulative. Leave the persuading to your lawyer.
Recommendations by the Guardian – The GAL may make recommendations to the court to help the child’s welfare and to protect the child from some of the conflicts that may arise between the parties such as between divorcing parents. The GAL also helps the child understand the court process and the role of every person in the courtroom such as the judge, the bailiffs, the court reporter, and the attorneys. In investigating and developing input for the court’s consideration, the GAL may consider the child’s wishes, the wishes of both parents, the child’s interaction and relationship with family members, the child’s adjustment to home, school, religion, and community, the child’s age and developmental and educational needs at various ages, the mental or physical health of a parent, the child, or other person living in the proposed custodial household, the cooperation and the communication between parents and whether either one unreasonably refuses to cooperate or communicate with the other, a parent’s likelihood to interfere in the other parent’s continuing relationship with the child, any physical abuse or problems with alcohol or drugs, and other significant factors that would affect the child’s well-being.
The Guardian’s Preliminary Report – After the investigation, the GAL will give the parents and their attorneys a preliminary summary report of what the GAL will present to the judge. Later, the report could change depending on additional evidence or facts that are uncovered. Afterward, if the parents cannot agree on how to settle their dispute, the case is prepared for trial before the judge, who will make the final decision.
The Guardian’s Fees – The judge decides who pays for the GAL’s services. Oftentimes, each parent is responsible for one-half of the GAL’s total costs, including the GAL’s time and investigation costs, such as tests and experts. The court also may require the parents to pay an initial deposit and periodic payments to the GAL during the case.
How to Become a Guardian Ad Litem in South Carolina
If you are interested in the South Carolina Guardian ad Litem Program and becoming a GAL, then you must:
- Be twenty-five years of age or older;
- Possess a high school diploma or its equivalent;
- Complete a minimum of nine hours of continuing education in the areas of custody and visitation and three hours related to substantive law and procedure in family court; and
- Observe three contested custody merits hearings prior to serving as a guardian ad litem
After you are qualified, you must complete annually 6 hours of continuing education courses in the areas of custody and visitation.
If you have been convicted of crimes against other persons, crimes against “morality and decency;” domestic violence, drug crimes, contributing to the delinquency of a minor, or on the Department of Social Services Central Registry of Abuse and Neglect, then you cannot be appointed as a GAL.
For information on S.C. Guardian ad Litem training, visit the South Carolina Children’s Guardian Services website.