Download This Version in Microsoft Word format
Indicates Matter Stricken
Indicates New Matter
COMMITTEE REPORT
January 30, 2002
S. 322
S. Printed 1/30/02--S.
Read the first time February 14, 2001.
To whom was referred a Bill (S. 322) to amend subArticle 4, Article 3, Chapter 7, Title 20, Code of Laws of South Carolina, 1976, relating to the South Carolina Guardian Ad Litem Program, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting words and inserting therein the following:
/ SECTION 1. This act shall be cited as the "Guardian ad Litem Reform Act of 2002".
SECTION 2. Article 11, Chapter 7, Title 20 of the 1976 Code is amended by adding:
Section 20-7-1533. (A) In an action before the family court in which custody or visitation is an issue, the court may appoint a guardian ad litem under the following circumstances:
(1) the court would not be fully informed about the facts of the case without the aid of a guardian ad litem;
(2) there is a substantial dispute between the parties which necessitates the use of a guardian ad litem; or
(3) both parties consent to the appointment of a guardian ad litem who is subsequently approved by the court.
(B) The court has absolute discretion in determining who will be appointed as a guardian ad litem in each case. A guardian ad litem must be appointed to a case by a court order.
Section 20-7-1535. (A) A guardian ad litem may be either an attorney or a layperson. A person must not be appointed as a guardian ad litem pursuant to Section 20-7-1533 unless he possesses the following qualifications:
(1) a guardian ad litem must be twenty-five years of age or older;
(2) a guardian ad litem must possess a high school diploma or its equivalent;
(3) for initial qualification, an attorney guardian ad litem must have completed a minimum of six hours of family law continuing legal education credit in the areas of custody and visitation;
(4) for initial qualification, a lay guardian ad litem must have completed a minimum of nine hours of continuing education in the areas of custody and visitation and three hours of continuing education related to substantive law and procedure in Family Court. The courses must be approved by the Supreme Court Commission on Continuing Legal Education and Specialization;
(5) a lay guardian ad litem must observe three contested custody merits hearings prior to serving as a guardian ad litem. If a case settles before the contested merits hearing concludes, the requirements of this section are met if the plaintiff concludes his case before settlement; and
(6) attorney guardians ad litem and lay guardians ad litem must complete annually the same type of continuing education courses and the same number of continuing education hours that initially qualified them to be a guardian ad litem.
(B) No person may be appointed as a guardian ad litem, pursuant to Section 20-7-1533 if he has been convicted of or pled guilty or nolo contendere to a crime of moral turpitude, a crime classified as a felony pursuant to Chapter 1 of Title 16, criminal domestic violence, or the common law offense of assault and battery of a high and aggravated nature.
(C) No person may be appointed as a guardian ad litem, pursuant to Section 20-7-1533 if he is or has ever been on the Department of Social Services Central Registry of Abuse and Neglect.
(D) Upon appointment to a case, a guardian ad litem must provide an affidavit to the court and to the parties attesting to compliance with the statutory qualifications. The affidavit must include, but is not limited to, the following:
(1) a statement affirming that the guardian ad litem does not have a relationship with any party or any party's attorney pursuant to the requirements of Section 20-7-1548, or if the guardian ad litem does have a relationship with any party or any party's attorney, the guardian ad litem must provide a statement disclosing the nature, duration, and extent of the relationship pursuant to the requirements of Section 20-7-1548;
(2) a statement affirming that the guardian ad litem has completed the training requirements provided for in subsection (A);
(3) a statement affirming that the guardian ad litem has not been convicted of, or pled guilty or nolo contendere to a crime of moral turpitude, a crime classified as a felony pursuant to Chapter 1 of Title 16, criminal domestic violence, or the common law offense of assault and battery of a high and aggravated nature; and
(4) a statement affirming that the guardian ad litem is not nor has ever been on the Department of Social Services Central Registry of Child Abuse and Neglect pursuant to Section 20-7-650.
(E) The court may appoint an attorney for a lay guardian ad litem. A party or the guardian ad litem may petition the court by motion for the appointment of an attorney for the guardian ad litem. This appointment may be by consent order. The order appointing the attorney must set forth the reasons for the appointment and must establish a method for compensating the attorney.
Section 20-7-1540. The responsibilities and duties of a guardian ad litem are as follows:
(1) represent the best interest of the child;
(2) conduct an independent, balanced, and impartial investigation to determine the facts relevant to the situation of the child and the family. An investigation must include, but is not limited to:
(i) reviewing relevant documents;
(ii) meeting with and observing the child in the home setting;
(iii) interviewing parents, caregivers, school officials, law enforcement, and others with knowledge relevant to the case;
(iv) reviewing the child's school records and medical records, if the guardian considers it necessary;
(v) obtaining the criminal history of each party and, when determined necessary by the guardian ad litem, obtaining the criminal history of a witness; and
(vi) considering the wishes of the child, if appropriate;
(3) advocate for the child's best interest by making specific and clear suggestions, when necessary, for evaluation, services, and treatment for the child and the child's family. Evaluations or other services suggested by the guardian ad litem must not be ordered by the court, except upon proper review by the court;
(4) attend all court hearings related to custody and visitation issues, except when attendance is excused by the court or the absence is stipulated by both parties. The guardian must provide accurate, current information directly to the court;
(5) maintain a complete file, including notes. A guardian's notes are his work product, and are not subject to subpoena; and
(6) present to the court and all parties clear and comprehensive written reports, including but not limited to, a final written report regarding the child's best interest. The final written report may contain conclusions based upon the facts contained in the report. The final written report must be submitted to the court and all parties no later than thirty days prior to the merits hearing, unless that time period is modified by the court, but in no event later than ten days prior to the merits hearing. The ten-day requirement for the submission of the final written report may only be waived by mutual consent of both parties. The 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. The guardian ad litem is subject to cross-examination on the facts and conclusions contained in the final written report. The final written report must include the names, addresses, and telephone numbers of those interviewed during the investigation.
Section 20-7-1545. (A) At the time of appointment of a guardian ad litem, the family court judge must set forth the method and rate of compensation for the guardian ad litem, including an initial authorization of a fee based on the facts of the case. The guardian ad litem must not charge the parties a fee exceeding the amount authorized by the judge at the time of appointment. If the guardian ad litem determines that it is necessary to exceed the fee initially authorized by the judge, the guardian must provide notice to both parties and obtain the judge's written authorization to charge more than the initially authorized fee.
(B) A guardian appointed by the court is entitled to reasonable compensation, subject to the review and approval of the court. In determining the reasonableness of the fees and costs, the court must take into account:
(1) the complexity of the issues before the court;
(2) the contentiousness of the litigation;
(3) the time expended by the guardian;
(4) the expenses reasonably incurred by the guardian;
(5) the financial ability of each party to pay fees and costs; and
(6) any other factors the court considers necessary.
(C) The guardian ad litem must submit a monthly, itemized billing statement of hours, expenses, costs, and fees to the parties and their attorneys.
(D) At any time during the action, a party may petition the court to review the reasonableness of the fees and costs submitted by the guardian ad litem or the attorney for the guardian ad litem.
Section 20-7-1548. A guardian ad litem appointed pursuant to Section 20-7-1533 must, upon notice of the appointment, provide written disclosure to each party of the nature, duration, and extent of any relationship the guardian or any member of the guardian's immediate family residing in the guardian's household has with all parties and their attorneys in the case. The guardian must disclose any membership or participation in any organization related to child abuse, domestic violence, or drug and alcohol abuse.
Section 20-7-1550. A guardian ad litem may be removed from a case at the discretion of the court for good cause shown."
SECTION 3. Section 20-7-420(37) of the 1976 Code is amended to read:
"(37) To appoint guardians ad litem and determine their compensation, fees, and costs and to assess as compensation, fees, and costs against the person represented by the guardian ad litem or against any other person or party involved in the action in actions pertaining to custody or visitation pursuant to Section 20-7-1533."
SECTION 4. This act takes effect six months after the Governor's signature and applies to a guardian ad litem appointed in a custody case on or after the effective date. /
Renumber sections to conform.
Amend title to conform.
LARRY A. MARTIN for Committee.
EXPLANATION OF IMPACT:
Governor's Office - Executive Policy and Programs
At this time there is no accurate information available to determine the number of cases involving custody disputes. However, for this impact statement it is estimated there are approximately 500 cases involving custody disputes. This is based on the current number of cases (2,345) involving children (4,542) in abuse and neglect proceedings served by volunteer guardian ad litems. The table below projects the cost to serve these additional 500 cases.
1 Statewide training coordinator $ 35,000
1 Administrative Assistant for state office
@$21,359 21,359
21 Coordinators @$9,619 (See note) 202,000
10 Administrative Assistants - local @$21,359 213,590
Employer Contributions $ 132,325
Total salary and employer contributions $ 604,274
Training materials and supplies for guardians 106,500
Travel for 20 staff @$300/month 90,000
Office space for additional personnel 250,000
Postage and office supplies 55,000
500 cases @$500 fee for service 250,000
Total estimated cost $ 1,355,774
Judicial Department
The department has indicated that there would be a minimal impact to the General Fund of the State, which can be absorbed by the agency with its current level of funding. However, if the number of cases exceeds what their current pool of circuit court judges can absorb, additional judges would be needed. The cost associated with one additional judge and staff (administrative assistant, court reporter and law clerk) is approximately $314,428 for personal services and associated operating expenses and $26,620 of non-recurring cost for automation and furniture. The addition of new judges would also require more courtroom space, an expense borne by county government.
SPECIAL NOTES:
The cost per coordinator reflects the additional cost to make existing training coordinators full-time positions. Also, the amount of $250,000 designated fee for service may be substantially reduced since a guardian ad litem who charges for these services is not provided immunity from civil damages in these cases.
Approved By:
Don Addy
Office of State Budget
TO AMEND SUBARTICLE 4, ARTICLE 3, CHAPTER 7, TITLE 20, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE SOUTH CAROLINA GUARDIAN AD LITEM PROGRAM, SO AS TO INCLUDE IN THIS PROGRAM COURT-APPOINTED GUARDIANS AD LITEM IN CUSTODY DISPUTES IN FAMILY COURT, TO PROVIDE THAT A GUARDIAN AD LITEM IN A CUSTODY DISPUTE MAY CHARGE UP TO FIVE HUNDRED DOLLARS FOR SERVICES RENDERED IN A CASE, TO PROVIDE THAT CIVIL AND CRIMINAL IMMUNITY DOES NOT APPLY TO A GUARDIAN AD LITEM WHO CHARGES FOR SERVICES RENDERED, AND TO REQUIRE A GUARDIAN AD LITEM IN A CUSTODY DISPUTE TO BE AT LEAST THIRTY YEARS OF AGE; AND TO AMEND SECTION 20-7-420, AS AMENDED, RELATING TO THE JURISDICTION OF THE FAMILY COURT, SO AS TO PROVIDE THAT IN ORDERING A MENTAL OR PSYCHIATRIC EXAMINATION IN CUSTODY DISPUTES, THE COURT MUST MAKE FINDINGS OF FACT THAT THERE IS PROBABLE CAUSE TO ORDER THE EXAMINATION AND THAT IT IS NECESSARY TO MAKE A DETERMINATION IN THE CASE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Subarticle 4, Article 3, Chapter 7, Title 20 of the 1976 Code is amended to read:
Section 20-7-121. There is created the South Carolina Guardian ad Litem Program to serve as a statewide system to provide training and supervision to volunteers who serve as court-appointed special advocates for children in abuse and neglect proceedings within the family court, pursuant to Section 20-7-110 , and to court-appointed guardians ad litem in custody disputes in family court. This program must be administered by the Office of the Governor.
Section 20-7-122. The responsibilities and duties of a guardian ad litem are to:
(1) represent the best interests of the child;
(2) advocate for the welfare and rights of a child involved in an abuse or neglect proceeding and in custody disputes;
(3) conduct an independent assessment of the facts, the needs of the child, and the available resources within the family and community to meet those needs;
(4) maintain accurate, written case records;
(5) provide the family court with a written report, consistent with the rules of evidence and the rules of the court, which includes without limitation evaluation and assessment of the issues brought before the court and recommendations for the case plan, the wishes of the child, if appropriate, and subsequent disposition of the case;
(6) monitor compliance with the orders of the family court and to make the motions necessary to enforce the orders of the court or seek judicial review;
(7) protect and promote the best interests of the child until formally relieved of the responsibility by the family court.
Section 20-7-123. No person may be appointed as a guardian ad litem for a child in an abuse or neglect proceeding under this chapter or in a custody dispute 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 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.
Section 20-7-124. (A) The guardian ad litem is charged in general with the duty of representation of the child's best interests. After appointment by the family court to a case involving an abused or neglected child or a child who is the subject of a custody dispute the guardian ad litem shall receive appropriate notice of all court hearings and proceedings regarding the child. The obligation of the guardian ad litem to the court is a continuing one and continues until formally relieved by the court.
(B) The guardian ad litem is authorized to:
(1) conduct an independent assessment of the facts;
(2) confer with and observe the child involved;
(3) interview persons involved in the case;
(4) participate on any multidisciplinary evaluation team for the case on which the guardian ad litem has been appointed;
(5) make recommendations to the court concerning the child's welfare;
(6) make motions necessary to enforce the orders of the court, seek judicial review, or petition the court for relief on behalf of the child.
(C) The guardian ad litem in an abuse and neglect proceeding is authorized through counsel to introduce, examine, and cross-examine witnesses in any proceeding involving the child and participate in the proceedings to any degree necessary to represent the child adequately.
(D) The guardian ad litem in a custody dispute is authorized through counsel to any party to the action to introduce, examine, and cross-examine witnesses in a proceeding involving the child and through such counsel to participate in the proceedings to any degree necessary to represent the child adequately.
Section 20-7-125. All child abuse and neglect reports made and information collected, as described in Section 20-7-690(A), must be made available to the guardian ad litem by the Department of Social Services. Upon proof of appointment as guardian ad litem and upon the guardian ad litem request, access to information must be made available to the guardian ad litem by the appropriate medical and dental authorities, psychologists, social workers, counselors, schools, and any agency providing services to the child.
Section 20-7-126. (A) All reports and information collected pursuant to this subarticle, in a case where abuse and neglect is in issue, and maintained by the Guardian ad Litem Program are confidential except as provided for in Section 20-7-690(C). A person who disseminates or permits the unauthorized dissemination of the information is guilty of contempt of court and, upon conviction, may be fined or imprisoned, or both, pursuant to Section 20-7-1350.
(B) The name, address, and other identifying characteristics of a person named in a report of abuse or neglect determined to be judicially unfounded must be destroyed one year from the date of the determination. The name, address, and other identifying characteristics of any person named in a report of abuse or neglect determined to be judicially indicated must be destroyed seven years from the date that the guardian ad litem formally is relieved of responsibility as guardian ad litem by the family court.
(C) The Director of the Guardian ad Litem Program or the director's designee may disclose to the media information contained in child protective services records if disclosure is limited to discussion of the program's activities in handling the case of a child who was the subject of an abuse and neglect report. The program may incorporate into its discussion of the handling of the case any information placed in the public domain by other public officials, a criminal prosecution, the alleged perpetrator or the attorney for the alleged perpetrator, or other public judicial proceedings. For purposes of this subsection, information is considered 'placed in the public domain' when it has been reported in the news media, is contained in public records of a criminal justice agency, is contained in public records of a court of law, or has been the subject of testimony in a public judicial proceeding.
Section 20-7-127. (A) After participating in the training program of the Guardian ad Litem Program, a person who is appointed to serve as guardian ad litem and serves without compensation is not liable for any civil damages for any personal injury as a result of any an act or omission by the person in the discharge of the responsibilities of a guardian ad litem if the person acts in good faith and is not guilty of gross negligence.
(B) After participating in the training program of the Guardian ad Litem Program, a person who is appointed as a guardian ad litem in a custody dispute may charge up to five hundred dollars for services rendered in a case. Accordingly, the immunity provided for in subsection (A) does not apply to a guardian ad litem who charges for these services.
Section 20-7-128. (A) Parties to a custody dispute in family court may jointly or individually recommend a guardian ad litem to be appointed to the case where there is no evidence or the evidence is inadequate to determine the comparative fitness of the parents and to determine the best interest of the child. Unless the court makes findings of fact to exclude a guardian ad litem agreed upon by the parties, the judge shall appoint that guardian ad litem to the case.
(B) To be appointed as a guardian ad litem in a custody dispute in family court, the person must be at least thirty years of age.
Section 20-7-129. The General Assembly shall provide the funds necessary to carry out the provisions of Sections 20-7-121 through 20-7-127 20-7-128 and 20-7-690(B)(5)."
SECTION 2. Section 20-7-420(26) of the 1976 Code is amended to read:
"(26) To order either before, during, or after a hearing a mental, physical, and or psychiatric examination as circumstances warrant; however, in ordering a mental or psychiatric examination in a custody dispute, the court must make findings of fact that there is probable cause to order the examination and that the examination is necessary to make a determination in the case."
This web page was last updated on Thursday, June 25, 2009 at 2:11 P.M.