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Current Status Bill Number:View additional legislative information at the LPITS web site.4584 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:20020124 Primary Sponsor:Easterday All Sponsors:Easterday, Sinclair, Wilkins, Harrison, Govan, G.M. Smith, Altman, Kelley, Limehouse, McGee, Scarborough and J.E. Smith Drafted Document Number:l:\council\bills\nbd\11122ac02.doc Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Private Guardian Ad Litem Reform Act History Body Date Action Description Com Leg Involved ______ ________ ______________________________________ _______ ____________ House 20020124 Introduced, read first time, 25 HJ referred to Committee Versions of This Bill
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO SPECIAL VISITATION PROVISIONS, BY ADDING SECTIONS 20-7-1545, 20-7-1547, 20-7-1549, 20-7-1551, 20-7-1553, AND 20-7-1555 SO AS TO ENACT THE "SOUTH CAROLINA PRIVATE GUARDIAN AD LITEM REFORM ACT" TO ESTABLISH CRITERIA FOR APPOINTMENT OF A GUARDIAN AD LITEM IN A PRIVATE ACTION BEFORE THE FAMILY COURT, TO AUTHORIZE THE APPOINTMENT OF ATTORNEYS AND NONATTORNEYS AND TO ESTABLISH CONTINUING EDUCATION REQUIREMENTS AS A PREREQUISITE TO APPOINTMENT AS A GUARDIAN AD LITEM, TO AUTHORIZE THE APPOINTMENT OF AN ATTORNEY FOR A GUARDIAN AD LITEM, TO PROVIDE FOR THE RESPONSIBILITIES AND DUTIES OF A GUARDIAN AD LITEM, TO REQUIRE THE COURT TO ESTABLISH THE METHOD AND RATE OF COMPENSATION FOR A GUARDIAN AD LITEM, AND TO REQUIRE A GUARDIAN AD LITEM TO DISCLOSE ANY CONFLICTS OF INTEREST; TO REDESIGNATE SECTION 20-7-1555 AS SECTION 20-7-1525 AND SECTION 20-7-1557 AS SECTION 20-7-1535; TO RENAME SUBARTICLE 1, ARTICLE 11, CHAPTER 7, TITLE 20 AS "SPECIAL CUSTODY AND VISITATION PROVISIONS; AND TO RENAME SUBARTICLE 2, ARTICLE 11, CHAPTER 7, TITLE 20 AS "PRIVATE GUARDIANS AD LITEM".
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. This act may be cited as the "South Carolina Private Guardian Ad Litem Reform Act".
SECTION 2. Subarticle 2, Article 11, Chapter 7, Title 20 of the 1976 Code is amended by adding:
"Section 20-7-1545. (A) In a private action before the family court in which custody or visitation of a minor child is an issue, the court may appoint a guardian ad litem when it determines that:
(1) without a guardian ad litem, the court will likely not be fully informed about the facts of the case;
(2) there is a substantial dispute which necessitates a guardian ad litem; or
(3) both parties consent to the appointment of a guardian ad litem who is approved by the court.
(B) A guardian ad litem appointed pursuant to this section may be removed by the court upon good cause shown.
Section 20-7-1547. (A) A person may not be appointed a guardian ad litem in a private action involving custody or visitation unless qualified pursuant to this section. The court may appoint an attorney or a nonattorney, qualified pursuant to this section, to be a guardian ad litem.
(B) An attorney must complete a minimum of six hours of family law continuing legal education in the areas of custody and visitation to be qualified to serve as a guardian ad litem. This requirement does not increase the total number of continuing legal education credits required annually of attorneys for licensure.
(C) A nonattorney must complete a minimum of nine hours of family law continuing legal or nonlegal education in the areas of custody and visitation and an additional three hours related to substantive law and procedure in family court to be qualified to serve as a guardian ad litem. A nonattorney also shall observe three contested custody merits hearings to be qualified to serve as a guardian ad litem. The continuing legal and nonlegal education courses provided to nonattorneys must be approved by the South Carolina Supreme Court Commission on Continuing Legal Education and Specialization.
(D) An attorney or a nonattorney guardian ad litem appointed pursuant to this section must complete, annually, the continuing legal and nonlegal education hours as required in subsections (B) and (C), respectively, in order to remain qualified to serve as a guardian ad litem.
(E) A person may not be appointed as a guardian ad litem pursuant to this section 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 for the crime of contributing to the delinquency of a minor, provided for in Section 16-17-490.
(F) A guardian ad litem, upon appointment, must provide an affidavit to the parties stating 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 (E).
Section 20-7-1549. Upon its own motion or upon the motion of a party or the guardian ad litem, the court may appoint an attorney for the guardian ad litem. If the appointment is by consent order, the order must set forth the reasons for the appointment and establish a method and rate for compensating the attorney.
Section 20-7-1551. (A) The responsibilities and duties of a guardian ad litem include, but are not limited to:
(1) representing the best interests 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, which must include:
(a) reviewing relevant documents and records. 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 in the home-setting and considering the wishes of the child, if appropriate; and
(c) interviewing parents, caregivers, school officials, law enforcement, and others with knowledge relevant to the case.
(3) advocating for the child's best interests, including making clear, specific recommendations and referrals for evaluations, services, and treatment for the child and the child's family; however, if any recommendation or referral is for a psychiatric or psychological evaluation, service, or treatment, the recommendation or referral first must be presented to the court for approval;
(4) attending all court hearings and providing accurate, current information directly to the court; and
(5) maintaining a complete file with notes rather than relying upon court files.
(B) A guardian ad litem also is responsible for presenting to the court and all other parties clear, comprehensive written reports including, but not limited to, a final written report regarding the child's best interests, which must include conclusions and recommendations and the facts upon which the reports are based. A final written report must be submitted to the court and all other parties no later than fifteen days before the merits hearing, unless the time frame is modified by the court. The final written report may not include a recommendation for awarding custody, and the guardian ad litem may not make recommendations concerning custody at the merits hearing unless requested by the court for reasons specifically set forth in the record. The written report must include the names of all persons interviewed by the guardian ad litem during the investigation and, if available, their addresses and telephone numbers.
Section 20-7-1553. (A) At the time of appointment, the family court judge shall set forth the method and rate of compensation for the guardian ad litem, who must submit a monthly itemized billing to include a statement of hours, expenses, costs, and fees to the parties and their attorneys.
(B) A party may petition the court to review the reasonableness of the fees and costs of the guardian ad litem and the attorney for the guardian ad litem at any time during the action.
(C) A guardian ad litem appointed by the court is entitled to reasonable compensation, subject to review and approval by the court. In determining the reasonableness of the fees and costs, the court shall take into account the complexity of the issues before the court, the contentiousness of the litigation, the time expended, the expenses reasonably incurred by the guardian ad litem and any other factors the court considers necessary.
Section 20-7-1555. A guardian ad litem appointed by the family court in a custody or visitation action must, upon notice of the appointment, provide written disclosure to each party:
(1) of the nature, duration, and extent of any relationship the guardian ad litem or any member of the guardian's immediate family residing in the guardian's household has with any party;
(2) of any interest adverse to any party or attorney which might cause the impartiality of the guardian ad litem to be challenged;
(3) any membership or participation in any organization related to child abuse, domestic violence, or drug and alcohol abuse."
SECTION 3. (A) Section 20-7-1555 of the 1976 Code is redesignated as Section 20-7-1525, and Section 20-7-1557 is redesignated Section 20-7-1535, both of which are to be placed within Subarticle 1, Article 11, Chapter 7, Title 20 of the 1976 Code.
(B) Subarticle 1, Article 11, Chapter 7, Title 20 of the 1976 Code is renamed "Special Custody and Visitation Provisions".
(C) Subarticle 2, Article 11, Chapter 7, Title 20 of the 1976 Code is renamed "Private Guardians ad Litem".
SECTION 4. This act takes effect July 1, 2002.
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