Could a relative enroll a South Carolina child in school using only a parent-signed temporary guardianship document?

Plain-English summary

A South Carolina resident tried to enroll her nephew in a local school district using a parent-signed document appointing her and her husband temporary guardians. The district refused. The Attorney General concluded in 2008 that this document was not a judicial guardianship appointment and therefore did not satisfy the guardian route addressed in the enrollment statutes for the facts presented.

The AG said a family court judge, including one in another state, could make the qualifying appointment. The opinion quoted other statutory paths for children living with adults or in particular circumstances, but it did not determine that the facts presented met any of those paths.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a parent-signed power of attorney make the relatives legal guardians for this enrollment? A: The AG said no. The arrangement had not been ordered by a court, and the opinion concluded it did not qualify as the judicial appointment required for the guardian route considered.

Q: Did the AG say a guardianship order had to come from a South Carolina judge? A: No. He said a family court judge's order from another state could qualify and knew of no requirement limiting it to South Carolina.

Q: Did the opinion decide every other way the child might qualify for school attendance? A: No. It quoted additional statutory circumstances, but its conclusion focused on the parent-signed document and the absence of a judicial appointment on the stated facts.

Background and statutory framework

The request concerned a nephew living with relatives in the Batesburg-Leesville area and a school district's rejection of their temporary guardianship paper. The AG relied on the statutes governing no-charge school attendance and earlier opinions defining “legal guardian” as a testamentary or judicial guardian. He concluded the described document did not meet that definition.

Citations and references

Statutes: S.C. Code Ann. § 59-63-30; S.C. Code Ann. § 59-63-31.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-15-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/knotts-j-m-jr-os-8598-5-15-08-temporary-guardians-school-enrollment.pdf

Original opinion text

May 15, 2008

The Honorable John M. Knotts, Jr.
Senator, District No. 23
Post Office Box 142
Columbia, South Carolina 29202
Dear Senator Knotts:
In a letter to this office you referenced a constituent who lives in the Batesburg-Leesville area who has attempted to have her minor nephew enrolled in the Lexington District Three schools. She has been provided a document signed by the parent of the child appointing the constituent and her husband as temporary guardians. The document is referred to as a power of attorney and, according to my review and information, the custody arrangement was not ordered by a court. The school district refused to register the nephew pursuant to that document. S.C. Code Ann. § 59-63-30 states that
[c]hildren within the ages prescribed by § 59-63-20 shall be entitled to attend the public schools of any school district, without charge, only if qualified under the following provisions of this section: (a) Such child resides with its parent or legal guardian; (b) The parent or legal guardian, with whom the child resides, is a resident of such school district; or (c) The child owns real estate in the district having an assessed value of three hundred dollars or more; and (d) The child has maintained a satisfactory scholastic record in accordance with scholastic standards of achievement prescribed by the trustees pursuant to § 59-19-90; and

The Honorable John M. Knotts, Jr.
Page 2
May 15, 2008

(e) The child has not been guilty of infraction of the rules of conduct promulgated by the trustees of such school district pursuant to § 59-19-90. (emphasis added). S.C. Code Ann. § 59-63-31 provides (A) Children within the ages prescribed in Section 59-63-20 also are entitled to attend the public schools of a school district, without charge, if: (1) the child resides with one of the following who is a resident of the school district: (a) a person who is not the child's parent or legal guardian to whom the child's custody has been awarded by a court of competent jurisdiction; (b) a foster parent or in a residential community-based care facility licensed by the Department of Social Services or operated by the Department of Social Services or the Department of Juvenile Justice; or (c) the child resides with an adult resident of the school district as a result of: (i) the death, serious illness, or incarceration of a parent or legal guardian; (ii) the relinquishment by a parent or legal guardian of the complete control of the child as evidenced by the failure to provide substantial financial support and parental guidance; (iii) abuse or neglect by a parent or legal guardian; (iv) the physical or mental condition of a parent or legal guardian is such that he or she cannot provide adequate care and supervision of the child; or

The Honorable John M. Knotts, Jr.
Page 3
May 15, 2008

(v) a parent's or legal guardian's homelessness, as that
term is defined by Public Law 100-77;
(2) the child is emancipated and resides in the school district; (3) the child is homeless or is a child of a homeless individual, as defined in Public Law 100-77, as amended; or (4) the child resides in an emergency shelter located in the district. In addition to the above requirements of this subsection, the child shall also satisfy the requirements of Section 59-63-30(d) and (e). A prior opinion of this office dated May 24, 1972 dealt with the question of the meaning of the term “legal guardian” referred to the in the predecessor statute to Section 59-63-30. That opinion stated that this office was of the opinion that the referenced term “...means either a testamentary guardian or a guardian by judicial appointment.” Another opinion of this office dated October 12, 1979 similarly stated that the term “legal guardian” is defined as
...one who, by operation of law, e.g., by court order or by will, has the care and management of the estate or the person or both of a child during the latter’s minority. The opinion commented further that the use of the term indicates that “...the legislature intended that Section 59-63-30 guardians should have broad powers for the care and management of the child.” Consistent with these prior opinions, in the opinion of this office inasmuch as the appointment of the constituent and her husband as guardian was not made by a judge of a court, it would not qualify as a judicial appointment. Therefore, it would not meet the requirements of Section 59-63-30 or 59-63-31. As a result, the school district would not be authorized to accept the child for attendance in its schools. The appointment must come from a judge. Furthermore, inasmuch as any order would pertain to a child, it must be issued by a family court judge. See S.C. Code Ann. §§ 20-7-390 et seq. As to the further question of whether a judicial appointment by a family court judge of another state of an individual as a legal guardian would qualify, in the opinion of this office, it would. I am unaware of any requirement that the appointment be limited to one made by a family court judge in this State.

The Honorable John M. Knotts, Jr.
Page 4
May 15, 2008

If there are any questions, please advise.
Sincerely,
Henry McMaster
Attorney General

By:

REVIEWED AND APPROVED BY:

______
Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General