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A guardian ad litem in Horry County Family Court is a person whom the court appoints to represent the best interests of the child.
The guardian ad litem investigates and gathers information to present to the court, and may also advocate for the child in court, although we are not permitted to make custody recommendations. The guardian ad litem is there to look out for the child and advocate for what is in their best interests, something that might otherwise be overlooked if there were only an advocate for each adult and a judge deciding issues based only on the adults’ positions…
If your child needs a guardian ad litem for your court proceedings, the parties can choose the guardian ad litem. If they do not, the court will choose a guardian ad litem for you. Your child can be appointed a certified guardian ad litem who is a trained attorney, who has extensive experience with family court proceedings, and who cares about children.
In many family court cases, a guardian ad litem is necessary to investigate, provide information to the court, and advocate for the best interests of the child.
Mom wants custody. Dad wants custody. Mom’s attorney and dad’s attorney are duking it out in court, each arguing why they should be the one who keeps the children in their home. But who is representing the interests of the child, confused and unsure about what is happening and what their future holds?
Guardians ad litem are usually appointed by the court after both parties consent. The parties’ attorneys will often choose the guardian ad litem after consulting with their clients, and then present the ad litem to the court for appointment.
If the parties cannot agree on a guardian ad litem, one is chosen by the court and appointed to the case.
A guardian ad litem represents the best interests of the child, but what does that mean? SC Code Section 63-3-830 lists the responsibilities of a guardian ad litem in Horry County family Court, which include:
(1) representing the best interest of the child;
(2) conducting an independent, balanced, and impartial investigation to determine the facts relevant to the situation of the child and the family. An investigation must include, but is not limited to:
(a) obtaining and reviewing relevant documents, except that a guardian ad litem must not be compensated for reviewing documents related solely to financial matters not relevant to the suitability of the parents as to custody, visitation, or child support. The guardian ad litem shall have access to the child’s school records and medical records. The guardian ad litem may petition the family court for the medical records of the parties;
(b) meeting with and observing the child on at least one occasion;
(c) visiting the home settings if deemed appropriate;
(d) interviewing parents, caregivers, school officials, law enforcement, and others with knowledge relevant to the case;
(e) obtaining the criminal history of each party when determined necessary; and
(f) considering the wishes of the child, if appropriate;
(3) advocating for the child’s best interest by making specific and clear suggestions, when necessary, for evaluation, services, and treatment for the child and the child’s family. Evaluations or other services suggested by the guardian ad litem must not be ordered by the court, except upon proper approval by the court or by consent of the parties;
(4) attending all court hearings related to custody and visitation issues, except when attendance is excused by the court or the absence is stipulated by both parties. A guardian must not be compensated for attending a hearing related solely to a financial matter if the matter is not relevant to the suitability of the parents as to custody, visitation, or child support. The guardian must provide accurate, current information directly to the court, and that information must be relevant to matters pending before the court;
(5) maintaining a complete file, including notes. A guardian’s notes are his work product and are not subject to subpoena; and
(6) presenting to the court and all parties clear and comprehensive written reports including, but not limited to, a final written report regarding the child’s best interest…
Although guardians ad litem are often attorneys, and we have a trained and certified attorney guardian ad litem on the Axelrod team, the guardian ad litem can be a layperson. The qualifications for a guardian ad litem are found in SC Code Section 63-3-820:
(A) A guardian ad litem may be either an attorney or a layperson. A person must not be appointed as a guardian ad litem pursuant to Section 63-3-810 unless he possesses the following qualifications:
(1) a guardian ad litem must be twenty-five years of age or older;
(2) a guardian ad litem must possess a high school diploma or its equivalent;
(3) an attorney guardian ad litem must annually complete a minimum of six hours of family law continuing legal education credit in the areas of custody and visitation; however, this requirement may be waived by the court;
(4) for initial qualification, a lay guardian ad litem must have completed a minimum of nine hours of continuing education in the areas of custody and visitation and three hours of continuing education related to substantive law and procedure in family court. The courses must be approved by the Supreme Court Commission on Continuing Legal Education and Specialization;
(5) a lay guardian ad litem must observe three contested custody merits hearings prior to serving as a guardian ad litem. The lay guardian must maintain a certificate showing that observation of these hearings has been completed. This certificate, which shall be on a form approved by Court Administration, shall state the names of the cases, the dates and the judges involved and shall be attested to by the respective judge; and
(6) lay guardians ad litem must complete annually six hours of continuing education courses in the areas of custody and visitation.
(B) A person shall not be appointed as a guardian ad litem pursuant to Section 63-3-810 who has been convicted of any crime listed in Chapter 3 of Title 16, Offenses Against the Person; in Chapter 15 of Title 16, Offenses Against Morality and Decency; in Chapter 25 of Title 16, Criminal Domestic Violence; in Article 3 of Chapter 53 of Title 44, Narcotics and Controlled Substances; or convicted of the crime of contributing to the delinquency of a minor, provided for in Section 16-17-490.
(C) No person may be appointed as a guardian ad litem pursuant to Section 63-3-810 if he is or has ever been on the Department of Social Services Central Registry of Abuse and Neglect.
(D) Upon appointment to a case, a guardian ad litem must provide an affidavit to the court and to the parties attesting to compliance with the statutory qualifications. The affidavit must include, but is not limited to, the following:
(1) a statement affirming that the guardian ad litem has completed the training requirements provided for in subsection (A);
(2) a statement affirming that the guardian ad litem has complied with the requirements of this section, including a statement that the person has not been convicted of a crime enumerated in subsection (B); and
(3) a statement affirming that the guardian ad litem is not nor has ever been on the Department of Social Services Central Registry of Child Abuse and Neglect pursuant to Subarticle 13, Article 3, Chapter 7.
(E) The court may appoint an attorney for a lay guardian ad litem. A party or the guardian ad litem may petition the court by motion for the appointment of an attorney for the guardian ad litem. This appointment may be by consent order. The order appointing the attorney must set forth the reasons for the appointment and must establish a method for compensating the attorney.
The family court appoints guardians ad litem in many different types of cases, including abuse and neglect cases, termination of parental rights cases, adoption proceedings, and contested custody or visitation cases.
SC Code Section 63-8-810 limits the appointment of guardians ad litem in custody or visitation cases to situations where the court determines that:
(1) without a guardian ad litem, 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; or
(2) both parties consent to the appointment of a guardian ad litem who is approved by the court.
In DSS cases, the guardian ad litem is paid by the state. In “private cases,” like custody or visitation cases, the parties must compensate the guardian.
Guardians ad litem are entitled to reasonable compensation for their services. SC Code Section 63-3-850 states that the family court must approve the fee amount in advance, taking into consideration:
(1) the complexity of the issues before the court;
(2) the contentiousness of the litigation;
(3) the time expended by the guardian;
(4) the expenses reasonably incurred by the guardian;
(5) the financial ability of each party to pay fees and costs; and
(6) any other factors the court considers necessary.
If your child needs a guardian ad litem to represent their best interests in your family court case, talk to your attorney about whether our trained, certified guardian ad litem on the Axelrod team can help.
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