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AMENDED--NOT PRINTED IN THE HOUSE
Amt. No. 1 (Council\nbd\amend\11351ac02)
April 3, 2002
S. 322
S. Printed 3/6/02--H.
Read the first time February 7, 2002.
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.
Amend Title To Conform
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 only when it determines that:
(1) without a guardian ad litem, the court will likely not be fully informed about the facts of the case and there is a substantial dispute which necessitates a guardian ad litem; or
(2) 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, both of whom must be at least twenty-five years of age and qualified pursuant to this section, to be a guardian ad litem.
(B) 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.
(C) A nonattorney guardian ad litem appointed pursuant to this section must complete, annually, the continuing legal and nonlegal education hours as required in subsection (B), in order to remain qualified to serve as a guardian ad litem.
(D) 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, or who is or has ever been on the Department of Social Services Central Registry of Abuse and Neglect.
(E) 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) if appropriate, meeting with and observing the child in the home-setting and considering the wishes of the child; 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, unless otherwise excused by the court, 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 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.
(C) A guardian ad litem may submit briefs, memoranda, affidavits, or other documents on behalf of the child. Any report or recommendation of a guardian ad litem must be submitted in a manner consistent with the South Carolina Rules of Evidence and other state law.
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, when fees and costs accrue, a periodic itemized billing to include a statement of hours, expenses, costs, and fees to the parties and their attorneys. Additionally, the court must consider the ability of a party to pay fees and costs at the time the court appoints a guardian ad litem.
(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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