SC Supreme Court Clarifies Guardian Ad Litem Recommendation Standards

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SC Supreme Court Clarifies Guardian Ad Litem Recommendation Standards

SC Supreme Court Clarifies Guardian Ad Litem Recommendation Standards: No ‘Extraordinary Circumstances’ Required
Grungo-Smith v. Grungo Reverses Court of Appeals, Reinstates Family Court Custody Award
Case Citation: Grungo-Smith v. Grungo, Opinion No. 28243 (S.C. Nov. 20, 2024)

In a significant decision for South Carolina family law practitioners, the Supreme Court reversed the Court of Appeals and clarified that family courts may request custody recommendations from guardians ad litem without needing to demonstrate ‘extraordinary circumstances.’ This ruling resolves confusion about the proper role of GALs in custody proceedings and reaffirms the family court’s discretion in considering all relevant evidence.

The Decision at a Glance
The Supreme Court held that S.C. Code Ann. § 63-3-830(A)(6) requires only two things for a GAL to make a custody recommendation:
• The family court must request the recommendation (the GAL cannot offer it unprompted)
• The court must state its reasons on the record for requesting the recommendation

Critically, the Court rejected the Court of Appeals’ insertion of an ‘extraordinary circumstances’ requirement, stating there is ‘no basis’ for reading such language into the statute.

Background
The Facts
Joseph Grungo (Father) and Wendy Grungo-Smith (Mother) divorced in 2012 with a joint custody arrangement. Over the following years:

• Mother moved six times between Charlotte and Gastonia, North Carolina, creating distance barriers to the original custody schedule
• Mother’s second husband was convicted of a ‘heinous crime’ involving one of the children
• Mother’s third husband verbally abused the children with racial slurs and vulgar language, and disparaged Father in front of the children
• The children reported feeling ‘peaceful’ with ‘zero stress’ at Father’s home, but ‘uptight’ without ‘peacefulness’ at Mother’s home

In 2019, Mother filed for a custody modification, seeking primary custody. Father counterclaimed, also seeking primary custody.

The Guardian Ad Litem’s Role
The appointed guardian ad litem submitted a detailed report documenting:

• Mother would ‘bless the children with oil’ before allowing them to speak with the GAL
• The children showed the GAL videos they had secretly recorded of Mother and her husband arguing
• Bedroom door locks were reversed in Mother’s home to allow locking children in from outside
• The children’s demeanor was markedly different at each parent’s home, being relaxed at Father’s but asking the GAL to ‘talk low’ at Mother’s

Importantly, the GAL’s report stated she could not make a custody recommendation unless ‘specifically ordered to do so’ by the family court, per GAL guidelines. Neither party objected to the report or its contents.

After the GAL testified, the family court explained on the record that it wanted the GAL’s recommendation because of:

• The disparity in testimony between Mother and Father
• The lack of any ‘middle ground’ (both parties sought primary custody)
• The GAL’s considerable time spent with the children and positive rapport developed

The court emphasized it could accept or decline the recommendation. Neither party objected. The GAL then recommended awarding Father primary custody.

Procedural History

Family Court: Found Father established a substantial change in circumstances and that the children’s best interests would be served by awarding him primary custody. The court found Father and the GAL more credible than Mother.

Court of Appeals: Reversed, holding the family court erred in requesting the GAL’s recommendation because ‘extraordinary circumstances’ were not present. The appellate court excluded all GAL evidence and testimony, finding neither party proved a substantial change in circumstances. The court reinstated the original joint custody arrangement.

Supreme Court: Reversed the Court of Appeals and reinstated the family court’s custody order, holding there is no ‘extraordinary circumstances’ requirement in the statute.

The Supreme Court’s Analysis
The Statutory Language
The Court examined S.C. Code Ann. § 63-3-830(A)(6), which provides that a GAL’s ‘final written report must not include a recommendation concerning which party should be awarded custody, nor may the guardian ad litem make a recommendation as to the issue of custody at the merits hearing unless requested by the court for reasons specifically set forth on the record.’ (emphasis added by Court)

Applying the plain meaning rule, the Supreme Court held:
‘There is no basis upon which to read an ‘extraordinary circumstances’ requirement into section 63-3-830(A)(6). The legislature did not include these words in the statute either expressly or by implication. Rather, the plain language of the statute requires only that a guardian not make an unprompted custody recommendation; however, a guardian is explicitly permitted to make a recommendation if ‘requested by the court for reasons specifically set forth on the record.”

Proper Procedure Was Followed
The Court found the family court followed the statute precisely:

• The GAL did not make a custody recommendation in her report or initial testimony
• She only made a recommendation after the family court requested it
• The family court justified the request on the record, explaining its reasoning
• The court explained it could accept or reject the recommendation

The Court emphasized: ‘The procedures followed by the family court and the guardian precisely tracked the express dictates of section 63-3-830(A)(6). No ‘extraordinary circumstances’ were required.’

Substantial Change in Circumstances
Unlike the Court of Appeals, the Supreme Court considered all evidence, including the GAL’s report and testimony. The Court found multiple factors supported a substantial change in circumstances:

• Mother’s second husband’s conviction for a heinous crime against one child
• Mother’s third husband’s verbal abuse of the children with racial slurs and offensive language
• The ‘continuing pattern’ of Mother and her husband belittling Father to the children
• Verbal altercations between Mother and her husband causing ‘considerable tension and distress’ to the children
• The children being ‘objectively and noticeably more comfortable’ at Father’s house

Significantly, the Court praised Father for demonstrating ‘considerable maturity and stability’ by prioritizing the children’s sleep and school attendance over strictly enforcing his custody rights, calling this behavior evidence that ‘reflects favorably upon him.’

Key Takeaways for Practitioners

• No ‘Extraordinary Circumstances’ Needed: Family courts may request GAL custody recommendations without demonstrating extraordinary circumstances. The Court of Appeals’ heightened standard has been rejected.
• Two Simple Requirements: The court must (1) request the recommendation and (2) state reasons on the record. These reasons can be straightforward, such as conflicting testimony or lack of compromise between parties.
• GAL Must Wait to Be Asked: GALs should not include custody recommendations in their written reports or offer recommendations during testimony unless requested by the court. Consider stating in reports that you are prepared to make a recommendation if requested.
• Object or Forever Hold Your Peace: Neither party objected to the GAL’s report, testimony, or the court’s request for a recommendation. The Supreme Court noted these facts repeatedly. Preserve objections if you believe procedures are improper.
• GAL Evidence Is Valid: When properly obtained, GAL testimony and recommendations are legitimate evidence for the family court to consider, along with all other evidence presented.
• Prioritizing Children Over Custody Rights: The Court looked favorably on Father’s decision to modify the custody schedule to benefit the children’s sleep and school attendance, even though it meant exercising less than his full custody time. This demonstrates that flexibility and child-centered decision-making can be evidence of fitness.
• Pattern of Poor Choices: The Court cited Shirley v. Shirley for the principle of looking for a ‘continuing pattern’ of poor choices when evaluating parental fitness. One spouse’s heinous crime followed by another spouse’s verbal abuse of children established such a pattern.
• Parental Alienation Still Matters: The Court reaffirmed that denigrating the other parent in front of children is contrary to the children’s best interests, citing Scott v. Scott and Sanders v. Sanders.
• Children’s Environment Matters: The GAL’s observations about the children’s different demeanor in each home—relaxed at Father’s, uptight at Mother’s—was significant evidence. Document and present evidence of children’s emotional state in each environment.
• De Novo Review With Deference: While appellate courts review family court cases de novo, the Supreme Court emphasized its ‘preference to sustain a family court’s factual findings’ given the family court’s ‘superior position’ in making credibility determinations.

Practice Tips
For Family Court Judges
• When you want a GAL’s custody recommendation, simply request it and state your reasons on the record
• Acceptable reasons include: conflicting testimony, lack of middle ground between parties, GAL’s extensive time with children, or GAL’s developed rapport with children
• Make clear you will independently evaluate the recommendation as one piece of evidence
• You do not need to find or articulate ‘extraordinary circumstances’

For Guardians Ad Litem
• Do not include custody recommendations in written reports unless specifically ordered
• Consider including language that you are ‘prepared and willing to make a recommendation if so asked’ (as the GAL did in this case)
• Do not volunteer a recommendation during testimony unless the court requests it
• Document children’s demeanor and emotional state in different environments
• Note differences in children’s willingness to communicate depending on location

For Attorneys
• If the GAL’s recommendation would be unfavorable, consider whether to object when the court requests it (though this carries strategic risks)
• Review GAL reports carefully for accuracy and consider whether to object to contents before they become evidence
• When representing the parent seeking modification, document patterns of behavior rather than isolated incidents
• Present evidence of children’s emotional well-being and environment in each home
• Consider whether your client’s flexibility with custody schedules (when in children’s interests) can be framed as evidence of fitness rather than waiver of rights
• Address any parental alienation issues directly with specific examples

Conclusion
The Supreme Court’s decision in Grungo-Smith provides much-needed clarity on the role of guardians ad litem in custody proceedings. By rejecting the Court of Appeals’ ‘extraordinary circumstances’ requirement, the Court reaffirmed that family courts have broad discretion to request GAL custody recommendations whenever such recommendations would be helpful to the court’s decision-making process.

The decision also reinforces important substantive principles: that courts should consider patterns of parental behavior, that children’s emotional well-being in each environment matters, that parental alienation is contrary to children’s best interests, and that putting children’s needs ahead of strict custody rights can be evidence of good parenting.

For South Carolina family law practitioners, this case is essential reading. It resolves procedural confusion that had been created by the Court of Appeals’ decision and provides clear guidance for properly utilizing GAL recommendations in custody disputes.

About This Analysis
This blog post analyzes Grungo-Smith v. Grungo, Opinion No. 28243, filed by the South Carolina Supreme Court on November 20, 2024. The full opinion is available through the South Carolina Judicial Department’s website.

This analysis is provided for educational purposes and should not be construed as legal advice. Practitioners should read the full opinion and consult current South Carolina law and rules when handling custody matters.

By Suzanne Klok|2025-11-12T16:47:06+00:00December 15th, 2024|Child Custody, Family Law, Guadian ad Litem|Comments Off on SC Supreme Court Clarifies Guardian Ad Litem Recommendation Standards

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SC Supreme Court Clarifies Guardian Ad Litem Recommendation Standards: No ‘Extraordinary Circumstances’ Required
Grungo-Smith v. Grungo Reverses Court of Appeals, Reinstates Family Court Custody Award
Case Citation: Grungo-Smith v. Grungo, Opinion No. 28243 (S.C. Nov. 20, 2024)

In a significant decision for South Carolina family law practitioners, the Supreme Court reversed the Court of Appeals and clarified that family courts may request custody recommendations from guardians ad litem without needing to demonstrate ‘extraordinary circumstances.’ This ruling resolves confusion about the proper role of GALs in custody proceedings and reaffirms the family court’s discretion in considering all relevant evidence.

The Decision at a Glance
The Supreme Court held that S.C. Code Ann. § 63-3-830(A)(6) requires only two things for a GAL to make a custody recommendation:
• The family court must request the recommendation (the GAL cannot offer it unprompted)
• The court must state its reasons on the record for requesting the recommendation

Critically, the Court rejected the Court of Appeals’ insertion of an ‘extraordinary circumstances’ requirement, stating there is ‘no basis’ for reading such language into the statute.

Background
The Facts
Joseph Grungo (Father) and Wendy Grungo-Smith (Mother) divorced in 2012 with a joint custody arrangement. Over the following years:

• Mother moved six times between Charlotte and Gastonia, North Carolina, creating distance barriers to the original custody schedule
• Mother’s second husband was convicted of a ‘heinous crime’ involving one of the children
• Mother’s third husband verbally abused the children with racial slurs and vulgar language, and disparaged Father in front of the children
• The children reported feeling ‘peaceful’ with ‘zero stress’ at Father’s home, but ‘uptight’ without ‘peacefulness’ at Mother’s home

In 2019, Mother filed for a custody modification, seeking primary custody. Father counterclaimed, also seeking primary custody.

The Guardian Ad Litem’s Role
The appointed guardian ad litem submitted a detailed report documenting:

• Mother would ‘bless the children with oil’ before allowing them to speak with the GAL
• The children showed the GAL videos they had secretly recorded of Mother and her husband arguing
• Bedroom door locks were reversed in Mother’s home to allow locking children in from outside
• The children’s demeanor was markedly different at each parent’s home, being relaxed at Father’s but asking the GAL to ‘talk low’ at Mother’s

Importantly, the GAL’s report stated she could not make a custody recommendation unless ‘specifically ordered to do so’ by the family court, per GAL guidelines. Neither party objected to the report or its contents.

After the GAL testified, the family court explained on the record that it wanted the GAL’s recommendation because of:

• The disparity in testimony between Mother and Father
• The lack of any ‘middle ground’ (both parties sought primary custody)
• The GAL’s considerable time spent with the children and positive rapport developed

The court emphasized it could accept or decline the recommendation. Neither party objected. The GAL then recommended awarding Father primary custody.

Procedural History

Family Court: Found Father established a substantial change in circumstances and that the children’s best interests would be served by awarding him primary custody. The court found Father and the GAL more credible than Mother.

Court of Appeals: Reversed, holding the family court erred in requesting the GAL’s recommendation because ‘extraordinary circumstances’ were not present. The appellate court excluded all GAL evidence and testimony, finding neither party proved a substantial change in circumstances. The court reinstated the original joint custody arrangement.

Supreme Court: Reversed the Court of Appeals and reinstated the family court’s custody order, holding there is no ‘extraordinary circumstances’ requirement in the statute.

The Supreme Court’s Analysis
The Statutory Language
The Court examined S.C. Code Ann. § 63-3-830(A)(6), which provides that a GAL’s ‘final written report must not include a recommendation concerning which party should be awarded custody, nor may the guardian ad litem make a recommendation as to the issue of custody at the merits hearing unless requested by the court for reasons specifically set forth on the record.’ (emphasis added by Court)

Applying the plain meaning rule, the Supreme Court held:
‘There is no basis upon which to read an ‘extraordinary circumstances’ requirement into section 63-3-830(A)(6). The legislature did not include these words in the statute either expressly or by implication. Rather, the plain language of the statute requires only that a guardian not make an unprompted custody recommendation; however, a guardian is explicitly permitted to make a recommendation if ‘requested by the court for reasons specifically set forth on the record.”

Proper Procedure Was Followed
The Court found the family court followed the statute precisely:

• The GAL did not make a custody recommendation in her report or initial testimony
• She only made a recommendation after the family court requested it
• The family court justified the request on the record, explaining its reasoning
• The court explained it could accept or reject the recommendation

The Court emphasized: ‘The procedures followed by the family court and the guardian precisely tracked the express dictates of section 63-3-830(A)(6). No ‘extraordinary circumstances’ were required.’

Substantial Change in Circumstances
Unlike the Court of Appeals, the Supreme Court considered all evidence, including the GAL’s report and testimony. The Court found multiple factors supported a substantial change in circumstances:

• Mother’s second husband’s conviction for a heinous crime against one child
• Mother’s third husband’s verbal abuse of the children with racial slurs and offensive language
• The ‘continuing pattern’ of Mother and her husband belittling Father to the children
• Verbal altercations between Mother and her husband causing ‘considerable tension and distress’ to the children
• The children being ‘objectively and noticeably more comfortable’ at Father’s house

Significantly, the Court praised Father for demonstrating ‘considerable maturity and stability’ by prioritizing the children’s sleep and school attendance over strictly enforcing his custody rights, calling this behavior evidence that ‘reflects favorably upon him.’

Key Takeaways for Practitioners

• No ‘Extraordinary Circumstances’ Needed: Family courts may request GAL custody recommendations without demonstrating extraordinary circumstances. The Court of Appeals’ heightened standard has been rejected.
• Two Simple Requirements: The court must (1) request the recommendation and (2) state reasons on the record. These reasons can be straightforward, such as conflicting testimony or lack of compromise between parties.
• GAL Must Wait to Be Asked: GALs should not include custody recommendations in their written reports or offer recommendations during testimony unless requested by the court. Consider stating in reports that you are prepared to make a recommendation if requested.
• Object or Forever Hold Your Peace: Neither party objected to the GAL’s report, testimony, or the court’s request for a recommendation. The Supreme Court noted these facts repeatedly. Preserve objections if you believe procedures are improper.
• GAL Evidence Is Valid: When properly obtained, GAL testimony and recommendations are legitimate evidence for the family court to consider, along with all other evidence presented.
• Prioritizing Children Over Custody Rights: The Court looked favorably on Father’s decision to modify the custody schedule to benefit the children’s sleep and school attendance, even though it meant exercising less than his full custody time. This demonstrates that flexibility and child-centered decision-making can be evidence of fitness.
• Pattern of Poor Choices: The Court cited Shirley v. Shirley for the principle of looking for a ‘continuing pattern’ of poor choices when evaluating parental fitness. One spouse’s heinous crime followed by another spouse’s verbal abuse of children established such a pattern.
• Parental Alienation Still Matters: The Court reaffirmed that denigrating the other parent in front of children is contrary to the children’s best interests, citing Scott v. Scott and Sanders v. Sanders.
• Children’s Environment Matters: The GAL’s observations about the children’s different demeanor in each home—relaxed at Father’s, uptight at Mother’s—was significant evidence. Document and present evidence of children’s emotional state in each environment.
• De Novo Review With Deference: While appellate courts review family court cases de novo, the Supreme Court emphasized its ‘preference to sustain a family court’s factual findings’ given the family court’s ‘superior position’ in making credibility determinations.

Practice Tips
For Family Court Judges
• When you want a GAL’s custody recommendation, simply request it and state your reasons on the record
• Acceptable reasons include: conflicting testimony, lack of middle ground between parties, GAL’s extensive time with children, or GAL’s developed rapport with children
• Make clear you will independently evaluate the recommendation as one piece of evidence
• You do not need to find or articulate ‘extraordinary circumstances’

For Guardians Ad Litem
• Do not include custody recommendations in written reports unless specifically ordered
• Consider including language that you are ‘prepared and willing to make a recommendation if so asked’ (as the GAL did in this case)
• Do not volunteer a recommendation during testimony unless the court requests it
• Document children’s demeanor and emotional state in different environments
• Note differences in children’s willingness to communicate depending on location

For Attorneys
• If the GAL’s recommendation would be unfavorable, consider whether to object when the court requests it (though this carries strategic risks)
• Review GAL reports carefully for accuracy and consider whether to object to contents before they become evidence
• When representing the parent seeking modification, document patterns of behavior rather than isolated incidents
• Present evidence of children’s emotional well-being and environment in each home
• Consider whether your client’s flexibility with custody schedules (when in children’s interests) can be framed as evidence of fitness rather than waiver of rights
• Address any parental alienation issues directly with specific examples

Conclusion
The Supreme Court’s decision in Grungo-Smith provides much-needed clarity on the role of guardians ad litem in custody proceedings. By rejecting the Court of Appeals’ ‘extraordinary circumstances’ requirement, the Court reaffirmed that family courts have broad discretion to request GAL custody recommendations whenever such recommendations would be helpful to the court’s decision-making process.

The decision also reinforces important substantive principles: that courts should consider patterns of parental behavior, that children’s emotional well-being in each environment matters, that parental alienation is contrary to children’s best interests, and that putting children’s needs ahead of strict custody rights can be evidence of good parenting.

For South Carolina family law practitioners, this case is essential reading. It resolves procedural confusion that had been created by the Court of Appeals’ decision and provides clear guidance for properly utilizing GAL recommendations in custody disputes.

About This Analysis
This blog post analyzes Grungo-Smith v. Grungo, Opinion No. 28243, filed by the South Carolina Supreme Court on November 20, 2024. The full opinion is available through the South Carolina Judicial Department’s website.

This analysis is provided for educational purposes and should not be construed as legal advice. Practitioners should read the full opinion and consult current South Carolina law and rules when handling custody matters.