Could one South Carolina lay guardian ad litem serve in both private custody cases and the state volunteer program?

Plain-English summary

In November 2003, South Carolina's Attorney General found no statute expressly prohibiting one layperson from serving as a private guardian ad litem in a custody or visitation case and as a volunteer in the Governor's guardian ad litem program for abuse or neglect cases.

The opinion did not promise appointment to either role. It deferred to the Governor's office on an individual's program service and to family courts' discretion on appointments and any special circumstances in a particular case.

Currency note

This opinion was issued in 2003. 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.

Historical summary

Prospective guardians and family courts

The AG distinguished the private-case appointment system from the statewide volunteer program. Each had statutory qualifications or exclusions, but the office identified no cross-program ban on simultaneous service.

Common questions

Was serving in both guardian roles categorically forbidden?
No. The AG found no express statutory prohibition.

Did that conclusion guarantee appointment in a private case?
No. The opinion said the family court had discretion in selecting a guardian for each case.

Who addressed an individual's participation in the Governor's program?
The AG deferred that question to the Governor's office.

Background and statutory framework

A senator asked whether a lay private guardian could also volunteer in the state program. The AG compared the statutes for private custody cases with those governing guardians for children in abuse and neglect proceedings.

Citations and references

The opinion discussed Section 20-7-1545 and Section 20-7-123.

Official title

Regarding whether a lay private guardian ad litem can also serve as a volunteer Guardian Ad Litem which is under the Governor’s Office Division of Guardian Ad Litem Programs.

Requester

The Honorable William C. Mescher, Senator, District No. 34

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-4-2003-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2012/09/03nov-4-Mescher.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER
ATfORNEY GENERAL

L

November 4, 2003

The Honorable William C. Mescher
Senator, District No. 44
Post Office Box One
Pinopolis, South Carolina 29469
Dear Senator Mescher:
You have requested an advisory opinion from this Office regarding whether a lay private guardian ad litem can also serve as a volunteer Guardian Ad Litem which is under the Governor's Office Division of Guardian Ad Litem Programs. You have indicated that from your reading of the relevant statutes there appears to be no reason why a lay private guardian ad litem cannot also serve as a volunteer in the Governor's Guardian Ad Litem Program. This office is in agreement with you in that there appears to be no statute that would specifically prohibit a lay private guardian ad litem from serving as a volunteer in the Governor's Guardian Ad Litem Program. Pursuant to recently enacted S.C. Code Ann. Sections 20-7-1545 et seq. (Supp. 2002), private guardians ad litem are authorized in private actions involving custody or visitation of a minor child. Pursuant to Section 20-7-1545, the family court " ... has absolute discretion in determining who will be appointed as a guardian ad Iitem in each case." The recent legislation on private guardians ad litem sets forth several basic qualifications for court appointment including annual continuing education requirements and limited observation of contested custody proceedings. Section 20-71547(A). The only apparent limitations on being appointed a private guardian ad litem are listed in Subsections (B) and (C) of Section 20-7-1547: (B) A person shall not be appointed as a guardian ad !item pursuant to Section 20-7-1545 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 convicted of the crime of contributing to the delinquency of a minor, provided for in Section 16-17-490. (C) No person may be appointed as a guardian ad litem pursuant to Section 20-7-1545 if he is or has ever been on the Department of Social Services Central Registry of Abuse and Neglect.

,QL.4u.o.1 ~~

BUllDING • POST OFFICE Box 11549 •

COLUMBIA,

s.c. 29211-1549 • TELEPHONE: 803-734-3970 • fACSIMII.E: 803-253-6283

The Honorable William C. Mescher
Page2
November 4, 2003

L
I

The enabling statutes for the Guardian ad Litem Program administered by the Governor's office are found in S.C. Code Ann. Sections 20-7-121 et seq. (Supp. 2002). Pursuant to S.C. Code Ann. Section 20-7-110 (Supp. 2002), the family court must appoint a guardian ad litem for a child in all child abuse or neglect proceedings. The Guardian Ad Litem Program was established "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." Section 20-7-121. The guardians' responsibilities and duties, as well as their rights of access to information, are set forth in Sections 20-7-122, 20-7-124, 20-7-125. As to who is prohibited from serving as a guardian ad litem pursuant to these provisions, Section 20-7-123 provides: No person may be appointed as guardian ad litem for a child in an abuse or neglect proceeding 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. Referencing the above, there do not appear to be any express statutory prohibition to the simultaneous service of a person as both a lay private guardian ad litem and a volunteer in the Governor's Guardian ad Litem Program. However, this Office would defer to the Office of Governor as to an individual's service as a guardian ad litem in that program and to the discretion of the family courts in making appointments as guardians ad litem as to any special considerations that may arise in the course of appointing a guardian ad litem in any given case. Sincerely,

Charles H. Richardson
Senior Assistant Attorney General