Current Status Bill Number:
456Type of Legislation: General Bill GBIntroducing Body: SenateIntroduced Date: 19950207Primary Sponsor: McConnellAll Sponsors: McConnell and LandDrafted Document Number: br1\18122ac.95Companion Bill Number: 3900Residing Body: SenateCurrent Committee: Judiciary Committee 11 SJDate of Last Amendment: 19950509Subject: Guardian ad litem
Body Date Action Description Com Leg Involved ______ ________ _______________________________________ _______ ____________ Senate 19960116 Recommitted to Committee 11 SJ Senate 19950517 Made Special Order Senate 19950509 Amended, read second time, ordered to third reading with notice of general amendments Senate 19950503 Committee report: Favorable with 11 SJ amendment Senate 19950207 Introduced, read first time, 11 SJ referred to CommitteeView additional legislative information at the LPITS web site.
Indicates Matter Stricken
Indicates New Matter
COMMITTEE AMENDMENT AMENDED AND ADOPTED
May 9, 1995
S. Printed 5/11/95--S.
Read the first time February 7, 1995.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 20-7-115 SO AS TO PROVIDE THAT A FAMILY COURT-APPOINTED GUARDIAN AD LITEM IS IMMUNE FROM LIABILITY FOR ACTS OR OMISSIONS RELATING TO THE COURT APPOINTMENT; AND TO REPEAL SECTION 20-7-127 RELATING TO LIMITED IMMUNITY OF VOLUNTEER GUARDIANS AD LITEM IN FAMILY COURT PROCEEDINGS.
Amend Title To Conform
Whereas, the General Assembly finds that the function of a court-appointed guardian ad litem in a Family Court proceeding is to aid the court in its determination as to the best interests of the child. The General Assembly further finds that a guardian ad litem must be able to function without the fear or concern about later harassment and intimidation from dissatisfied parents or other persons. Public policy requires immunity from civil liability for court-appointed guardians ad litem. Now, therefore,
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 15-78-30(c) of the 1976 Code of Laws is amended to read:
"(c) Prior to January 1, 1989, `Employee employee' means any officer, employee, or agent of the State or its political subdivisions, including elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of a governmental entity in the scope of official duty, whether with or without compensation, but the term does not include an independent contractor doing business with the State or any political subdivision thereof. Custody of prisoners by the State or any of its political subdivisions does not in and of itself create an employer and employee relationship between the State and the prisoner. Provided, the provisions of this section shall in no way limit or modify the liability of a licensed physician or dentist, acting within the scope of his profession.
On or after January 1, 1989, `Employee employee' means any officer, employee, or agent of the State or its political subdivisions, including elected or appointed officials, law enforcement officers, and persons acting on behalf or in service of a governmental entity in the scope of official duty, whether with or without compensation, and volunteers in a public guardian ad litem program serving without compensation or with nominal compensation, but the term does not include an independent contractor doing business with the State or any political subdivision thereof. Custody of prisoners by the State or any of its political subdivisions does not in and of itself create an employer and employee relationship between the State and the prisoner. Provided, the provisions of this section shall in no way limit or modify the liability of a licensed physician or dentist, acting within the scope of his profession, with respect to any action or claim brought hereunder which involved services for which the physician or dentist was paid, should have been paid, or expected to be paid at the time of the rendering of the services from any source other than the salary appropriated by the governmental entity or fees received from any practice plan authorized by the employer whether or not the practice plan is incorporated and registered with the Secretary of State."
SECTION 2. Section 15-78-60 of the 1976 Code is amended by adding a new item to read:
"(32) acts and omissions of volunteers in public guardian ad litem programs serving without compensation or with nominal compensation and acting within the scope of their responsibilities as court-appointed guardians ad litem, when such acts or omissions are done in good faith, and do not constitute gross negligence, recklessness, wilfulness, or wantonness."
SECTION 3. Article 3, Chapter 7, Title 20 of the 1976 Code is amended by adding:
Section 20-7-105. (A) In contested proceedings involving a minor child or children, the court may appoint a guardian ad litem for the child. The appointment must be made as soon as possible after the commencement of the proceeding. In determining whether an appointment must be made, the court shall consider:
(1) the wishes of the parties;
(2) the age of the child;
(3) the nature of the proceeding, including the contentiousness of the hearing;
(4) the financial resources of the parties;
(5) the extent a guardian ad litem may assist in providing information concerning the best interests of the child; and
(6) other factors the court determines relevant.
(B) The court shall specify the duties of the guardian ad litem. If, in order to perform the assigned duties, the guardian needs information concerning the child or parents, the court may order the parent to sign an authorization form allowing the release of the necessary information. The duties of the guardian ad litem may include the following:
(1) interviewing the child with or without another person present;
(2) interviewing the parents, teachers, and other people who have knowledge of the child or family;
(3) reviewing mental health, medical, and school records of the child;
(4) reviewing mental health and medical records of the parents;
(5) retaining an attorney to represent the guardian ad litem in the pending proceeding, with approval of the court;
(6) subpoenaing witnesses and documents and examining and cross-examining witnesses;
(7) serving as a contact person between the parents and the child;
(8) making a written report of investigations, findings, and recommendations, with copies of the report to each party and the court; and
(9) other duties that the court determines necessary.
(C) The guardian ad litem's standard of duty must be guided by the best interests of the child.
(D) A written report of a guardian ad litem may be admitted as evidence in the proceeding for which the guardian was appointed only if the party seeking the admission of the report has furnished a copy to all parties at least five days prior to the hearing. The report may not be admitted as evidence without the testimony of the guardian ad litem if a party objects to the admittance of the report at least two days prior to the hearing.
(E) A person serving by court appointment as a guardian ad litem under this section, and who is not covered by the immunity provision of Section 15-78-60(32), is immune from civil liability when acting within the scope of his responsibilities as a court-appointed guardian ad litem for acts or omissions done in good faith which do not constitute gross negligence, recklessness, wilfulness, or wantonness. (F) Payment for the services of the guardian ad litem is the responsibility of the parties, as ordered by the court. In determining the responsibility for payment, the court shall consider:
(1) the income of the parties;
(2) the marital and nonmarital assets of the parties;
(3) the division of property made as part of the final divorce;
(4) which party requested appointment of a guardian; and
(5) other relevant factors."
SECTION 4. Section 20-7-127 of the 1976 Code is repealed.
SECTION 5. This act takes effect upon approval by the Governor.