A Guardian ad Litem is a person that has been appointed by the Family Court to represent “the best interests of the child” in court proceedings. In Family Court, guardians are appointed in contested custody and visitation cases, as well as in cases where child abuse or neglect has been alleged. Though guardians can be directly appointed by judges, in many contested custody and visitation cases the guardian is agreed upon by the parties’ attorneys.
In these contentious custody cases, the guardian’s fees are paid by the parties in the percentages ordered by the Court. Though the Guardian ad Litem is typically an attorney, this is not always the case, as anyone who meets the requirements can be a guardian in such cases (See S.C. Code Ann. § 63-3-820). The guardian’s role is a bit of a mixture of investigator and advocate. Some guardians will tend to take more of a position than others, it depends on the circumstances of the case and the temperament of the individual guardian. Some are zealous advocates for the children while others act as reporters, documenting behavior and recording interactions between parents and child.
The guardian who acts as an investigator will try to develop a strong factual understanding of the life of the parents and child. Guardians are empowered to interview the parents and the children, observing them on multiple occasions and even conducting surprise home visits. The guardian can then present the court with information that a judge would want to know when making a decision concerning custody and visitation. The guardian who behaves more like an advocate can have more of a viewpoint, deciding which situation is a better fit for the child and attempting to have the Court to support this view.
While a guardian is not allowed to make custody recommendations in a written report, he/she could can issue a final report that says the children are doing fabulously well with the mother or that the father is an alcoholic. Such reports let the court know what’s going on without specifically making a recommendation as to custody. As long as the guardian behaves appropriately, their view can carry great weight with the Court. Given the influence they have with judges, a party in a custody or visitation dispute should be sure to cooperate with the guardian whenever possible, which includes (at a minimum) making sure never to lie to the guardian and trying to highlight the facts that you believe are important or that need to be investigated in your case.
Source: “Guidelines for Guardians ad Litem for Children in Family Court,” published at SCBar.org.