An order arrives appointing a guardian ad litem for your children. Almost every parent has the same two reactions: relief that someone will finally hear the truth, and alarm that a stranger is about to form an opinion about their family. Both reactions assume the guardian has more power than the statute actually gives them.

When one gets appointed at all

A guardian is not automatic. S.C. Code § 63-3-810(A) allows the family court to appoint one in a private custody or visitation case only where it determines either that, without a guardian, the court will likely not be fully informed about the facts and there is a substantial dispute requiring one, or that both parties consent to a guardian the court approves.

Subsection (B) then gives the court “absolute discretion in determining who will be appointed as a guardian ad litem in each case,” and requires that the appointment be made by court order.

So there are two doors: a substantial dispute the court cannot resolve on the record it has, or your agreement.

Who they can be

Section 63-3-820(A) is blunter than most people expect: a guardian ad litem “may be either an attorney or a layperson.” The statute then sets qualifications, beginning with age — a guardian must be at least twenty-five years old.

A layperson guardian is not a lesser appointment. The statute treats both the same, and the qualifications and training requirements apply either way.

What they actually do

Section 63-3-830(A) lists the duties, and the list is more specific than parents usually assume. The guardian is responsible for representing the best interest of the child and for conducting “an independent, balanced, and impartial investigation.” That investigation must include, at a minimum:

Note the qualifiers the statute attaches. Home visits happen “if deemed appropriate,” not always. Criminal history is obtained “when determined necessary,” not routinely. And the child's wishes are considered “if appropriate.”

The guardian must also attend the hearings related to custody and visitation, advocate for the child's best interest by making specific and clear suggestions where necessary, and maintain a complete file.

The part almost nobody knows: the report cannot pick a winner

This is the single most misunderstood feature of the South Carolina statute. Parents spend months trying to win the guardian over, believing the guardian will tell the judge who should get custody. Under § 63-3-830(A)(6), the guardian is required to present clear and comprehensive written reports, including a final written report on the child's best interest — and then the statute says this:

So the default is no custody recommendation, in the report or from the witness stand. The court can ask for one, but only for reasons put on the record.

What the report may contain is conclusions based on the facts in it. The distinction is between “here is what I found and what I conclude about the children's needs” and “award custody to the mother.” The first is the guardian's job; the second is the judge's.

Our post on the Supreme Court's clarification of guardian ad litem recommendation standards covers how the appellate courts have policed that line.

Timing, and what you are entitled to see

The final written report must be submitted to the court and all parties no later than twenty days before the merits hearing, unless the court modifies that period — but in no event later than ten days before. The ten-day requirement can only be waived by mutual consent of both parties.

The report must include the names, addresses and telephone numbers of everyone interviewed during the investigation. You are entitled to know who the guardian spoke to.

And the guardian is subject to cross-examination on the facts and conclusions in the report. A guardian's conclusions are evidence to be tested, not findings to be accepted.

One thing you are not entitled to: the guardian's notes. The statute states that a guardian's notes are work product and are not subject to subpoena.

What a guardian ad litem is not

How to work with a guardian ad litem

Frequently asked questions

Will the guardian ad litem tell the judge who should get custody?

Not in the final report, and not at the merits hearing, unless the court specifically asks for reasons set out on the record. Section 63-3-830(A)(6) prohibits it by default.

Does a guardian ad litem have to be a lawyer?

No. Section 63-3-820(A) allows either an attorney or a layperson, and requires the guardian to be at least twenty-five years old.

Can I see the guardian's notes?

No. The statute makes a guardian's notes work product and not subject to subpoena. You will see the final written report, which must name everyone interviewed.

When do I get the report?

No later than twenty days before the merits hearing unless the court changes that, and in no event later than ten days before. The ten-day floor can only be waived if both parties agree.

Can I challenge what the guardian says?

Yes. The guardian is subject to cross-examination on the facts and conclusions in the final written report.

Can the guardian help us settle?

Not as a mediator. Section 63-3-840 prohibits a guardian from mediating or attempting to mediate a case in which they are appointed.

Talk to a Charleston custody lawyer

How you handle the guardian's investigation shapes the record the judge reads before anyone testifies. Klok Law Firm handles South Carolina family law in Charleston, Mount Pleasant, Berkeley, and Dorchester counties. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.