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COMMITTEE AMENDMENT ADOPTED AND AMENDED
May 21, 2002
H. 3756
S. Printed 5/21/02--S. [SEC 5/23/02 9:11 AM]
Read the first time April 10, 2001.
TO AMEND SECTION 20-7-420, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO FAMILY COURT JURISDICTION, SO AS TO PROVIDE THAT FAMILY COURT HAS EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE MATTERS RELATING TO THE VALIDITY OF PREMARITAL AGREEMENTS AND THE EFFECT OF THESE AGREEMENTS ON ISSUES OTHERWISE WITHIN FAMILY COURT JURISDICTION.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 20-7-420 of the 1976 Code, as last amended by Act 104 of 1999, is further amended by adding an appropriately numbered subsection to read:
"( ) To hear and determine matters relating to the validity of antenuptial agreements and the effect of antenuptial agreements on issues otherwise within this court's jurisdiction."
SECTION 2. 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 3. 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, except that a guardian ad litem must not be compensated for reviewing documents related solely to financial matters not relevant to the suitability of the parents as to custody or visitation;
(ii) meeting with and observing the child in the home setting on at least one occasion;
(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 ad litem 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. A guardian ad litem must not be compensated for attending a hearing related solely to a financial matter if the matter is not relevant to the suitability of the parents as to custody or visitation. The guardian ad litem must provide accurate, current information directly to the court. During a guardian ad litem's testimony, the guardian ad litem must not comment on the presence of any person in the courtroom unless the person is a witness in the case and the comment relates to the person's testimony or relationship to the child;
(5) maintain a complete file, including notes. A guardian ad litem'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 20-7-1543. A guardian ad litem must not mediate, attempt to mediate, or act as a mediator in a case to which he has been appointed unless the guardian ad litem has been trained and certified pursuant to the rules of the circuit court and family court as to arbitration and mediation promulgated by the South Carolina Supreme Court by order dated January 31, 1995.
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 ad litem must provide notice to both parties and obtain the judge's written authorization to charge more than the initially authorized fee.
(B) A guardian ad litem 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 ad litem;
(4) the expenses reasonably incurred by the guardian ad litem;
(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 ad litem or any member of the guardian ad litem's immediate family residing in the guardian ad litem's household has with all parties and their attorneys in the case. The guardian ad litem 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. 'Good cause' includes, but is not limited to, the failure to disclose to the parties any relationship the guardian ad litem or any member of the guardian ad litem's immediate family residing in the guardian ad litem's household has with all parties and attorneys in the case."
SECTION 4. The provisions relating to guardians ad litem take effect six months after the Governor's signature and apply to a guardian ad litem appointed in a custody case on or after the effective date.
SECTION 5. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision so expressly provides. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 6. This act takes effect July 1, 2002, and applies to actions filed in family court on or after that date.
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