As child custody lawyers in Charleston, we frequently deal with a guardian ad litem (GAL) in a private custody dispute. Parents are often surprised to learn that a stranger may visit their home, interview their children, and report to the judge, and they want to know how much influence the GAL will have and how to handle the process.
In this article, we explain when a guardian ad litem is appointed, what the GAL does, how the GAL is paid, what goes into the GAL’s report, and how to prepare. So what does a guardian ad litem do in a South Carolina custody case, and how can it affect the outcome?
Quick Answer: A guardian ad litem is a person the family court appoints to represent a child’s best interests in a custody case. In child abuse and neglect proceedings, the court must appoint a GAL. The GAL conducts an independent investigation by interviewing the parents, meeting with the child, speaking with other witnesses, reviewing records, and visiting the homes if appropriate, and must submit a final written report before the merits hearing. The judge makes the final custody decision.
Table of Contents
- What Does a Guardian ad Litem Do in South Carolina?
- When Does the Family Court Appoint a Guardian ad Litem?
- What Does a Guardian ad Litem Investigation Involve?
- When Is the Guardian ad Litem’s Report Due in South Carolina?
- Who Pays for a Guardian ad Litem in South Carolina?
- Who Can Be a Guardian ad Litem in South Carolina?
- Can You Object to or Remove a Guardian ad Litem in South Carolina?
- How Should You Prepare for a Guardian ad Litem Meeting?
- Does the Judge Have to Follow the Guardian ad Litem’s Recommendations?
- Do You Need a Lawyer When a Guardian ad Litem Is Appointed?
What Does a Guardian ad Litem Do in South Carolina?
The guardian ad litem’s job is to represent the child’s best interests. The GAL does not represent either parent. Instead, the GAL conducts an independent, balanced, and impartial investigation of the facts that matter to the child’s welfare and reports those facts to the family court. The GAL also attends custody and visitation hearings unless excused or the parties stipulate to the GAL’s absence, and may present information to the court and be questioned at trial.
In many cases, the GAL becomes one of the most important people in the case. Judges may give considerable weight to the GAL’s investigation, because the GAL has investigated the child’s circumstances and spoken with people involved. But the GAL’s report does not decide the case, and the judge makes the final custody decision.
When Does the Family Court Appoint a Guardian ad Litem?
Under South Carolina’s guardian ad litem statute, beginning at Section 63-3-810, the family court may appoint a guardian ad litem in a private custody or visitation dispute if both parties consent to a GAL approved by the court, or if the court determines that without a GAL, it will likely not be fully informed about the facts and there is a substantial dispute that requires one. In practice, a GAL is often appointed at the beginning of a contested custody case, frequently at the temporary hearing, but the court can appoint one later.
The rules are different in child abuse and neglect proceedings, where the court must appoint a guardian ad litem for the child in every case. The following table compares the most common situations:
| Type of Case | Is a GAL Appointed? | Who Usually Serves |
|---|---|---|
| Private custody or visitation dispute between parents | Only if both parties consent to a GAL approved by the court or the court finds it will likely not be fully informed without a GAL and there is a substantial dispute requiring one | A private attorney or a qualified lay GAL |
| Divorce with a custody dispute | Same as a private custody dispute | A private attorney or a qualified lay GAL |
| Grandparent or third-party custody or visitation case | Same as a private custody dispute | A private attorney or a qualified lay GAL |
| DSS child abuse or neglect case | Yes, in every child abuse and neglect proceeding | Usually a volunteer through the South Carolina Guardian ad Litem Program or another court-appointed GAL |
You can read more about the early stages of a custody case in our article on what a temporary hearing is in South Carolina, and about DSS cases in our article on what happens in a DSS child abuse or neglect case in South Carolina.
What Does a Guardian ad Litem Investigation Involve?
The GAL’s investigation usually includes the following:
- Interviews with the parents. The GAL will meet with each parent, often more than once, and ask about the child’s history, routines, needs, and the parents’ concerns.
- Meeting the child. The GAL must meet with and observe the child at least once, and may observe the child with each parent.
- Home visits. The GAL may visit the parents’ homes if the GAL considers home visits appropriate.
- Records. The GAL obtains and reviews relevant documents, including the child’s school and medical records, as well as relevant pleadings and other documents filed in the case. The GAL may petition the family court for a party’s medical records.
- Other witnesses. The GAL may interview teachers, doctors, counselors, coaches, relatives, new partners, and other people with relevant information.
- Court hearings. The GAL must attend custody and visitation hearings unless the court excuses the GAL or both parties stipulate to the GAL’s absence.
The GAL must keep a complete file, including investigation notes. The GAL’s notes are work product and are not subject to subpoena.
When Is the Guardian ad Litem’s Report Due in South Carolina?
The GAL must submit a final written report to the court and all parties no later than 20 days before the merits hearing, unless the court changes that deadline. Even if the court changes it, the report must be submitted at least 10 days before the hearing unless both parties consent to waive that requirement.
The report must address the child’s best interest and include the names, addresses, and telephone numbers of the people the GAL interviewed. Under the statute, the GAL may not recommend which party should have custody in the final report or at the merits hearing unless the court requests one for reasons specifically stated on the record.
Because the report comes out before trial, work with your lawyer to review it carefully, identify factual errors or missing information, and decide whether to question the GAL or call other witnesses at trial.
Who Pays for a Guardian ad Litem in South Carolina?
In a private custody case, the parents usually pay the guardian ad litem, and the court decides how to divide the fee between them. At the beginning of the case, the judge sets the method and rate of compensation and authorizes an initial fee. The following table summarizes the rules that apply to GAL fees:
| Fee Rule | What It Means for You |
|---|---|
| The judge sets the method and rate of compensation at the time of appointment | The appointment order should state how the GAL will be paid, such as an hourly rate |
| The court authorizes an initial fee based on the facts of the case | The GAL must give both parties notice and obtain the judge’s written authorization or both parties’ consent before charging more than the amount initially authorized |
| Exceeding the initial fee requires the judge’s written authorization or the consent of both parties | You have an opportunity to review a proposed increase before the GAL charges more than the approved amount |
| The GAL must submit an itemized billing statement | You can see the hours, expenses, costs, and fees the GAL bills on the schedule directed by the court |
| The court decides whether the fees are reasonable | The court considers the complexity of the case, how contentious it was, the time spent, the expenses, and each party’s ability to pay |
A party may ask the court to review the reasonableness of GAL fees and costs at any time during the case. The court may also decide how the parties will bear those fees. In DSS cases, a volunteer GAL through the South Carolina Guardian ad Litem Program generally does not charge the parents a private GAL fee.
Who Can Be a Guardian ad Litem in South Carolina?
A guardian ad litem in a private custody case may be an attorney or a qualified lay person. Every GAL must be at least 25 years old and have a high school diploma or its equivalent. An attorney GAL must complete at least six hours of family law continuing education each year related to custody and visitation, unless the court waives that requirement.
A lay GAL must complete at least nine hours of initial training on custody and visitation and three hours on substantive law and family court procedure, observe three contested custody merits hearings before serving, and complete six hours of continuing education each year. The court may appoint an attorney to represent a lay GAL.
A person cannot serve as a guardian ad litem if he or she has been convicted of certain crimes, including crimes against the person, crimes against morality and decency, and certain drug crimes, or if he or she is or has ever been listed on the Department of Social Services Central Registry of Abuse and Neglect.
Can You Object to or Remove a Guardian ad Litem in South Carolina?
Yes, in some circumstances. The court may remove a guardian ad litem at its discretion. If you believe the GAL has a conflict of interest, is biased, has failed to perform the required investigation, or has exceeded the approved fees without authorization, your lawyer can raise the issue with the court by motion. Simply disagreeing with the GAL’s views is usually not enough to remove a GAL, so you need specific facts.
You can also challenge the GAL’s findings at trial. Your lawyer can question the GAL about the investigation, point out information the GAL did not consider, and present other evidence about the child’s best interest.
How Should You Prepare for a Guardian ad Litem Meeting?
How you interact with the GAL can affect your case outcome. We recommend the following:
- Be on time and cooperative. Return calls promptly, keep appointments, and pay any required fee deposit on time.
- Focus on your child. Talk about your child’s needs, routines, school, health, and activities, and how you meet those needs.
- Be honest. The GAL may check what you say against records and other witnesses, and losing credibility can hurt your case.
- Raise legitimate concerns, but avoid attacking the other parent. If you have real concerns, such as drug or alcohol abuse, physical or emotional abuse, or unsafe living conditions, share them with specific facts. Otherwise, avoid negative comments about the other parent.
- Prepare your home. Make sure the home is clean and safe and that your child has an appropriate place to sleep.
- Provide helpful information. Give the GAL names and contact information for teachers, doctors, coaches, and others who know your child, along with relevant records.
- Do not coach your child. Telling a child what to say can damage your credibility and your case.
Does the Judge Have to Follow the Guardian ad Litem’s Recommendations?
No. The guardian ad litem’s report and testimony are evidence for the judge to consider, but the judge decides custody based on all of the evidence and the child’s best interest. In a private custody case, the GAL cannot recommend which party should receive custody in the final report or at the merits hearing unless the court requests a recommendation for reasons stated on the record.
In practice, however, judges may give significant weight to a thorough, impartial GAL investigation, so the GAL’s findings can influence the outcome. Learn more about how judges decide custody in our article on South Carolina’s custody laws. If a grandparent or other relative is seeking custody or visitation, our article on grandparent rights in South Carolina explains those cases.
Do You Need a Lawyer When a Guardian ad Litem Is Appointed?
A guardian ad litem investigation can shape the outcome of your custody case, and the GAL’s report often arrives just weeks before trial. A lawyer can help you prepare for the GAL’s interviews and home visit, make sure the GAL has the information that supports your case, review the GAL’s fees and report, and challenge any errors at trial. The attorneys at Futeral & Nelson have represented parents in custody cases in Charleston, Mount Pleasant, North Charleston, Summerville, and throughout the Lowcountry since 2003. Call us at 843-284-5500 to discuss your situation.
