A guardian ad litem (GAL) is an individual appointed by the court and tasked with representing a child’s best interests in cases involving contested custody and visitation, adoption, abuse and neglect, name changes, and termination of parental rights. South Carolina Children’s Code Chapter 3 governs a guardian ad litem’s appointment and conduct in private cases, such as a divorce, where custody and visitation are disputed. In these cases, the law allows the court to name a GAL only if:
- Without a GAL, the court is not likely to be fully informed of all the facts and there is a substantial dispute requiring a GAL’s assistance; or
- Both parties agree to a GAL who is appointed by the court. (See S.C. Code Ann. Sec. 63-3-810, et seq.)
Often, the GAL is an attorney, but is not required to be. Before becoming a GAL, a person must complete several hours of training as specified in the statute. In private cases, the parties pay the GAL’s fees, which the court sets forth at the time of appointment.
The GAL’s primary function is to represent the best interests of the child in the particular litigation. The law describes several responsibilities the GAL has in fulfilling this function.
First, the GAL should conduct what the statute calls an “independent, impartial and balanced investigation” to determine the relevant facts in the case. As part of her investigation, the GAL will likely do some or all of the following:
- Interview the child in person at least once;
- Interview the parents, caregivers, school officials and others who may have relevant information;
- Examine the child’s school and medical records;
- Visit the child’s home; and
- Depending on the child’s age and maturity level, consider the child’s own wishes.
After becoming familiar with the facts of the case, where it is appropriate the GAL should make suggestions to the court about any necessary evaluations, services or treatment for the child or the family.
The GAL must produce clear and comprehensive written reports for all parties and the court, including a final written report concerning the child’s best interests. However, by law this final report must not contain any recommendations about which party should be granted custody. Additionally, the GAL may not make a custody recommendation at a hearing on the merits of the case, unless the court requests it and specifically sets forth reasons for doing so in the record.
The GAL should attend all court hearings related to custody and visitation, and keep a complete file. In advocating for the child’s best interest, the GAL may submit briefs, memoranda and affidavits to the court as well.
Although the GAL cannot ultimately make custody recommendations, the court will pay attention to his or her suggestions and reports. Therefore, as a rule of thumb it is best to be as cooperative as possible with the GAL.
Consult an experienced Greenville family law attorney
If you or your spouse is contemplating a divorce or a change in custody or visitation arrangements, advice from a knowledgeable family lawyer can be invaluable. Robert Clark is an experienced attorney adept at handling all manner of family law cases in Greenville. For a consultation on any aspect of family law, contact us today.