# What Does a Guardian ad Litem Do in a South Carolina Custody Case?

> In a contested custody case, the guardian is often the only person who has been inside both homes, talked to the children, and read the school records. Here is what the job involves, what the statute requires, and how the guardian's work is used and tested in court.

Source: https://ndmlaw.com/page/resources/papers/guardian-ad-litem-custody-south-carolina/ · Author: Nick Mermiges, Esq. · Published 2026-10-23 · Jurisdiction: South Carolina (family court) · Publisher: Law Office of Nick Mermiges, LLC, 1720 Main Street, Suite 202, Columbia, SC 29201 · (803) 587-0472

## The short answer

- In a private custody case, the family court may appoint a guardian *ad Litem* only when it would otherwise likely not be fully informed and there is a substantial dispute, or when both parties consent; the judge alone decides who serves.
- The guardian represents the child's best interest — not either parent — and must conduct an independent, balanced, and impartial investigation that includes meeting the child, interviewing parents and others, and reviewing relevant records (the guardian has statutory access to the child's school and medical records).
- The final written report is due no later than twenty days before the merits hearing unless the court changes that period — and never later than ten days before without both parties' consent — and it may not recommend which parent gets custody unless the judge asks for reasons stated on the record.
- The guardian's fees are set and reviewed by the court; going past the initially authorized fee requires notice and either the judge's written authorization or both parties' consent.
- The judge is not bound by the guardian's conclusions. The report is evidence, the guardian can be cross-examined, and a biased investigation can be challenged.

Somewhere around the temporary hearing in a contested custody case, a new person enters your life. The order calls this person the guardian *ad Litem*. Your lawyer calls them "the GAL." Over the next several months the guardian will visit your home, meet your children, call their teachers and pediatrician, talk to your relatives and the other parent's relatives, and eventually write a report that the judge will read closely before deciding where your children live.

Parents sometimes picture the guardian as a judge to be won over, or as an enemy to be outmaneuvered. The guardian is neither the decision-maker nor the opposition. The guardian is an investigator with a statutory job description, a fee that the court controls, and a report that is evidence the judge may accept or reject.

This article explains what that job description says, how the investigation actually unfolds, what the guardian costs, how the report gets used at trial, and what you can do when an investigation is thin or one-sided. It covers **private** custody cases between parents.

## What a guardian *ad Litem* is — and is not

The easiest way to understand the guardian is to start with how a custody case is built. Our court system is adversarial. There is a plaintiff and a defendant. Each parent has a lawyer, and each lawyer's job is to present that parent's facts and evidence in the best possible light. The judge decides who is telling the truth, decides which facts matter, and applies the law.

The problem is that the people whose lives are being decided most — the children — are not parties and have no lawyer. Each parent believes he or she is speaking for them, and each parent usually tells the court that the children would rather be with them. Everyone in the courtroom has an incentive, and a parent's interests and a child's interests are not always the same thing.

The guardian fills that gap. You can think of the guardian in one of two ways: as something like a lawyer for your children, or as a neutral investigator for the court, whose job is to look out for the children's interests, find out what is actually going on in both homes, and report back. The Supreme Court of South Carolina put it this way: the guardian "functions as a representative of the court, appointed to assist the court in making its determination of custody by advocating for the best interest of the children and providing the court with an objective view." [*Patel v. Patel*](https://www.sccourts.org/opinions/htmlfiles/SC/25371.htm), 347 S.C. 281, 555 S.E.2d 386 (2001). The statute states the first duty plainly: "representing the best interest of the child." [S.C. Code Ann. § 63-3-830(A)(1)](https://www.scstatehouse.gov/code/t63c003.php).

That definition also tells you what the guardian is not:

- **Not your lawyer, and not the other parent's.** The guardian owes neither parent loyalty. What you tell the guardian is not confidential, and it can end up in the report.
- **Not the judge.** The guardian investigates and reports. The judge decides.
- **Not the mediator.** By statute, a guardian "must not mediate, attempt to mediate, or act as a mediator" in the case, although the guardian may take part in a mediation or settlement conference with the parties' consent. [S.C. Code Ann. § 63-3-840](https://www.scstatehouse.gov/code/t63c003.php).
- **Not the child's mouthpiece.** The guardian considers the child's wishes "if appropriate," but represents the child's best interest — which is not always what the child says he or she wants.

## When the court appoints a guardian

Not every case involving children gets a guardian. Uncontested cases, and cases where custody is settled early, usually do not need one. In a private action in which custody or visitation is at issue, the family 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.

[S.C. Code Ann. § 63-3-810(A)](https://www.scstatehouse.gov/code/t63c003.php). The appointment must be made "by a court order," and "[t]he court has absolute discretion in determining who will be appointed . . . ." § 63-3-810(B).

In practice, once custody is genuinely contested, a guardian is close to inevitable. The appointment usually comes at the first court hearing, in the temporary order — as our [divorce FAQ](https://ndmlaw.com/page/resources/faq/divorce/) notes, appointing a guardian is one of the standard things a temporary order does when custody is in dispute. If the other parent later stops contesting custody, the need for a guardian can fall away.

The appointment order matters more than people realize. It typically sets the initial fee authorization and the retainer each parent pays, authorizes the guardian to obtain records, and often directs both parents not to discuss the case with the children beyond telling them they will meet with the guardian. Some orders direct an expedited initial investigation, with a first report due within a set number of weeks, after which either side may ask the court for further temporary relief.

Lawyers on both sides generally prefer to agree on an experienced guardian rather than leave the choice entirely to chance, and appointments by consent are common. Consent orders appointing or relieving a guardian, or addressing the guardian's fees, may be signed without a hearing in the judge's discretion. [Rule 28(c), SCRFC](https://www.sccourts.org/resources/judicial-community/court-rules/family/rule-28/).

## Who may serve: qualifications and disclosures

The guardian may be either a lawyer or a layperson, but the statute sets minimum qualifications for both. [S.C. Code Ann. § 63-3-820](https://www.scstatehouse.gov/code/t63c003.php).

| Requirement | Attorney guardian | Lay guardian |
|---|---|---|
| Age and education | 25 or older; high school diploma or equivalent | Same |
| Initial training | — | At least 9 hours of continuing education in custody and visitation, plus 3 hours on family court law and procedure |
| Courtroom observation | — | Must observe three contested custody merits hearings, documented on an approved certificate |
| Annual training | 6 hours of family-law CLE in custody and visitation (the court may waive) | 6 hours of continuing education in custody and visitation |
| Disqualifications | Convictions for listed offenses (offenses against the person, morality and decency offenses, criminal domestic violence, narcotics offenses, contributing to the delinquency of a minor); any listing on the Central Registry of Abuse and Neglect | Same |

On appointment, the guardian must give the court and the parties an affidavit attesting to those qualifications. § 63-3-820(D). The court may also appoint an attorney for a lay guardian, on motion of a party or the guardian, with the order stating the reasons and how the attorney will be paid. § 63-3-820(E).

Separately, the guardian must give each party written disclosure of any relationship the guardian (or an immediate family member in the household) has with any party, any interest adverse to a party or attorney that might call impartiality into question, and any membership in organizations related to child abuse, domestic violence, or drug and alcohol abuse. [S.C. Code Ann. § 63-3-860](https://www.scstatehouse.gov/code/t63c003.php). The disclosure exists so that a possible conflict can be brought to the court's attention at the outset.

## What the investigation looks like

The statute requires "an independent, balanced, and impartial investigation to determine the facts relevant to the situation of the child and the family." § 63-3-830(A)(2). It then lists what the investigation "must include, but is not limited to":

- obtaining and reviewing relevant documents — the guardian "shall have access to the child's school records and medical records" and "may petition the family court for the medical records of the parties";
- meeting with and observing the child on at least one occasion;
- visiting the home settings if deemed appropriate;
- interviewing parents, caregivers, school officials, law enforcement, and others with knowledge relevant to the case;
- obtaining the criminal history of each party when determined necessary; and
- considering the wishes of the child, if appropriate.

§ 63-3-830(A)(2)(a)–(f). In a typical case, that translates into a familiar sequence. Each parent meets with the guardian, often after filling out a lengthy intake form and providing a list of witnesses with names and phone numbers. The guardian sees each parent's home, meets with the children, and observes each parent with the children, because part of the job is simply watching whether the parent-child relationship looks comfortable or strained. Then come the collateral contacts: teachers, counselors, pediatricians, relatives, and anyone else either parent has identified, along with whatever records the guardian decides to gather. When a records provider needs a parent's authorization, the guardian may ask for a signed release.

The word "investigator" is meant literally. The guardian looks into the things each parent points to — a pattern in the messages, a school problem, a concern about drinking — and the things the guardian notices independently. The investigation is not limited to the facts as they stood when the case was filed. If the temporary arrangement stops working partway through the case — a child who is not getting to school, behavior problems that appear in one home — looking into that is part of the guardian's role, and the case can go back before the judge for further temporary relief.

The statute also gives the guardian a voice on services. The guardian may make "specific and clear suggestions, when necessary, for evaluation, services, and treatment for the child and the child's family" — counseling for a child, co-parenting counseling, drug or alcohol testing, or a psychological evaluation — although nothing the guardian suggests is ordered without the court's approval or both parties' consent. § 63-3-830(A)(3).

The guardian will also hear what each parent thinks the children want. On that subject the law is specific: the court "must consider the child's reasonable preference for custody" and weighs it "based upon the child's age, experience, maturity, judgment, and ability to express a preference." [S.C. Code Ann. § 63-15-30](https://www.scstatehouse.gov/code/t63c015.php). Because children usually do not testify in custody cases, the guardian is usually the channel through which their views reach the judge.

The investigation takes months, and it continues up to the report. What happens in the second half of the case counts as much as what happened in the first.

## What the guardian costs, and who pays

The guardian is not paid by the taxpayers. The parents pay, the fee is separate from what either parent pays a lawyer, and it can become a real part of the cost of a custody case. The governing statute is [S.C. Code Ann. § 63-3-850](https://www.scstatehouse.gov/code/t63c003.php). It does not set a fixed dollar cap. Instead, it builds the control into the court process:

- **The initial authorization.** At appointment, the 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." § 63-3-850(A).
- **Exceeding it.** If the guardian concludes it is necessary to exceed that authorized fee, the guardian "must provide notice to both parties and obtain the judge's written authorization or the consent of both parties to charge more than the initially authorized fee." *Id.*
- **Reasonableness, reviewed by the court.** The guardian is entitled to "reasonable compensation, subject to the review and approval of the court," considering the complexity of the issues, the contentiousness of the litigation, the time the guardian spent, the guardian's expenses, "the financial ability of each party to pay fees and costs," and other factors. § 63-3-850(B).
- **Itemized bills.** The guardian must submit itemized statements of hours, expenses, costs, and fees to the parties and their lawyers on a schedule the court directs. § 63-3-850(C).
- **Review at any time.** "At any time during the action, a party may petition the court to review the reasonableness of the fees and costs . . . ." § 63-3-850(D).

The investigation statute adds two limits worth knowing: a guardian may not be compensated for reviewing documents "related solely to financial matters" that do not bear on the parents' suitability for custody, visitation, or child support, nor for attending a hearing related solely to a financial matter of that kind. § 63-3-830(A)(2)(a), (A)(4).

As our [divorce FAQ](https://ndmlaw.com/page/resources/faq/divorce/#q16) explains, the usual starting point is an initial retainer from each parent, split equally, with the court able to reallocate the fees later. The retainer is typically due within a short period after the order is entered; after that, the guardian bills by the hour, and the total grows with the amount of conflict. When the case resolves — by an approved agreement or a final order — the guardian's work ends and new charges stop, although any unpaid balance still has to be paid as the agreement or the court allocates it. In practice, the final allocation is frequently argued at the final hearing, where the court looks at the statutory factors and at which parent's conduct drove the cost.

Because the statute makes each party's financial ability a factor and allows a petition for review at any point in the case, questions about the amount or allocation of the fees do not have to wait for the final hearing.


**Key rule** — The guardian's final written report must reach the court and all parties no later than twenty days before the merits hearing unless the court modifies that period, and in no event later than ten days before it unless both parties waive the ten-day requirement, and it may not recommend which parent should have custody unless the court requests a recommendation for reasons stated on the record. [S.C. Code Ann. § 63-3-830(A)(6)](https://www.scstatehouse.gov/code/t63c003.php).


## The report: timing, contents, and the recommendation question

The guardian's written work product is defined by § 63-3-830(A)(6). The guardian must present "clear and comprehensive written reports including, but not limited to, a final written report regarding the child's best interest." The final report "may contain conclusions based upon the facts contained in the report," and "must include the names, addresses, and telephone numbers of those interviewed during the investigation." The guardian may also submit affidavits at the temporary hearing. § 63-3-830(B).

**Timing.** The final report is due "no later than twenty 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 floor "may only be waived by mutual consent of both parties." § 63-3-830(A)(6). A report that arrives three days before trial is not a minor inconvenience; it is a statutory problem that can be raised with the court.

**The recommendation.** The statute draws a line between conclusions and a custody recommendation. The final 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." *Id.*

In 2024 the Supreme Court made clear how that exception works. The court of appeals had held that a family court may ask for the guardian's recommendation only in "extraordinary circumstances." The Supreme Court reversed: "There is no basis upon which to read an 'extraordinary circumstances' requirement into section 63-3-830(A)(6)." The statute "requires only that a guardian not make an unprompted custody recommendation." [*Grungo-Smith v. Grungo*](https://www.sccourts.org/media/opinions/HTMLFiles/SC/28243.pdf), 444 S.C. 556, 910 S.E.2d 455 (2024). In that case, the family court asked for the recommendation because of the disparity in the testimony and because neither parent offered any middle ground, and it said on the record that it could accept or reject the recommendation and would treat it as one more piece of evidence. The Supreme Court held that procedure "precisely tracked the express dictates" of the statute.

The practical consequence is that a recommendation may well be requested at trial, and trial preparation on both sides generally assumes it.

**The notes.** The guardian must maintain "a complete file, including notes," but "[a] guardian's notes are his work product and are not subject to subpoena." § 63-3-830(A)(5). Access to the rest of the file is often addressed in the appointment order or by agreement, and disputes about it are resolved by the court. What the statute guarantees is the list of interviewees in the report — which is what makes it possible to test the investigation.

## How the report is used at trial — and why the judge is not bound by it

The guardian's report is evidence, and the guardian is a witness. "The guardian ad litem is subject to cross-examination on the facts and conclusions contained in the final written report." § 63-3-830(A)(6). Any report or recommendation "must be submitted in a manner consistent with the South Carolina Rules of Evidence and other state law." § 63-3-830(B).

Parents are often surprised that the report can be admitted even though it repeats what other people told the guardian. The court of appeals has held that "[a] GAL's testimony and report, which contains evidentiary materials such as hearsay statements from persons interviewed by the GAL, is admissible if the report is made available to the parties and the testifying witnesses are subject to cross-examination." [*Bojilov v. Bojilov*](https://www.sccourts.org/media/opinions/HTMLFiles/COA/5595.pdf), 425 S.C. 161, 819 S.E.2d 791 (Ct. App. 2018). The court relied on an older rule that cuts both ways: when the report contains statements of fact, "the litigants are entitled to cross-examine the [GAL] and any witnesses whose testimony formed the basis of the [GAL's] recommendation." *Id.* (quoting [*Collins v. Collins*](https://scholar.google.com/scholar?hl=en&as_sdt=4,41&q=%22Collins+v.+Collins%22+%22283+S.C.+526%22), 283 S.C. 526, 530, 324 S.E.2d 82, 85 (Ct. App. 1984)). The names in the report are therefore not just a formality. They are a witness list, and they can be deposed and subpoenaed.

> The guardian's report is evidence the judge weighs, not a verdict the judge signs.

The judge decides custody. In weighing the child's best interest, the family court considers several factors, including "the opinions of third parties (including GAL, expert witnesses, and the children)." *Patel*, 347 S.C. at 285, 555 S.E.2d at 388, quoted in *Grungo-Smith*. The guardian's view is one of those opinions. A judge may adopt the guardian's conclusions, adopt part of them, or reject them, and the judge who heard all the evidence — including testimony the guardian never heard — often has a fuller picture than the guardian did. That is also why the best response to an unfavorable report is usually evidence, not outrage.

## When the investigation is thin or one-sided

Most guardians do careful, balanced work. When one does not, South Carolina law treats it seriously. *Patel* is the leading example. The guardian in that case kept no notes of her observations and produced no written report; contacted the husband's lawyer nineteen times and the wife's lawyer never; after an incident with the wife, stopped meeting with her for about three months while continuing to meet the children in the husband's care; and listened to a phone call between the parents without the wife's knowledge. The Supreme Court held that the guardian "did not conduct an objective, balanced investigation," that "[h]er method of evaluation created a high potential for bias," and that the guardian's "actions and inactions so tainted the decision of the family court in this case, as to deny Wife due process." Because the custody question was close and the family court had relied heavily on the guardian, the error was not harmless, and the Court sent the case back for a new custody hearing. 347 S.C. 281, 555 S.E.2d 386. Most of the baseline standards the Court announced in *Patel* reappear in similar words in § 63-3-830, with one notable change: *Patel* expected the final report to include recommendations, while the statute now bars an unprompted custody recommendation.

*Patel* was an extreme case. More commonly, the problem is a report that is thin — one short home visit, no contact with the school, a key witness never called back — or that repeats one parent's account without testing it. The law gives the parties several ways to address that:

1. **Communication through counsel during the case.** Because the guardian is an investigator, counsel can identify records or witnesses the guardian has not yet reached while there is still time for the investigation to include them. Some guardians also share draft reports with counsel before finalizing them, and counsel may respond in writing.
2. **Object to a late report.** The twenty-day and ten-day deadlines in § 63-3-830(A)(6) exist so the parties can prepare. A late report can support an objection or a request for relief at trial.
3. **Test the investigation at trial.** Depose or subpoena the people the guardian interviewed. Cross-examine the guardian on scope: how many visits, how long, what records were reviewed, who was never contacted, and whether each conclusion rests on something the guardian saw or something the guardian was told. Asking the guardian to agree with each favorable fact in the report is often more effective than attacking the unfavorable ones.
4. **Challenge the fees.** Unnecessary or one-sided work can be addressed through a petition to review reasonableness under § 63-3-850(D).
5. **Move to remove.** "A guardian ad litem may be removed from a case at the discretion of the court." [S.C. Code Ann. § 63-3-870](https://www.scstatehouse.gov/code/t63c003.php). The statute sets no standard beyond the court's discretion, and removal is the exception. A guardian who has formed a view that favors the other parent is not, for that reason alone, biased — reaching conclusions is the job. A removal motion stands on firmest ground when it rests on something like an undisclosed conflict, one-sided access of the kind *Patel* describes, or an investigation that has stalled. When both parents agree that a change is needed, a consent order relieving the guardian and appointing a replacement may, in the judge's discretion, be entered without a hearing. Rule 28(c), SCRFC.

In our experience, a case built around attacking the guardian rarely goes well. Judges appoint guardians, often know them, and depend on them. Challenges that succeed tend to be specific, grounded in the record, and tied to what the children need.

## Guardians and custody evaluations by mental-health professionals

A guardian is not a psychologist, and a guardian's report is not a psychological evaluation. In some cases — serious mental-health questions, allegations of alienation, a child with significant behavioral or developmental needs — the court and the parties need a mental-health professional's assessment as well.

The statute anticipates this. As described above, the guardian may suggest an evaluation, but "[e]valuations or other services suggested by the guardian ad litem must not be ordered by the court, except upon proper approval by the court or by consent of the parties." § 63-3-830(A)(3). In other words, the guardian can suggest an evaluation; only the court (or the parties' agreement) can make it happen. In cases involving allegations that one parent is turning a child against the other, a guardian's first report will often suggest exactly that next step.

The two roles complement each other. A custody or psychological evaluator typically conducts testing and clinical interviews of the parents and children and offers professional opinions; the guardian investigates the facts of daily life — homes, schools, routines, collateral witnesses — and reports on them. The evaluator testifies as an expert; the guardian testifies about the investigation. The guardian commonly reviews the evaluator's report, and the judge considers both, along with everything else, as "opinions of third parties (including GAL, expert witnesses, and the children)." *Patel*, 347 S.C. at 285, 555 S.E.2d at 388.

Evaluations are expensive and add months to a case, so they are worth their cost only when there is a real question that a mental-health professional is better positioned to answer than the guardian or the judge. When an evaluation is ordered by consent, the order should specify who the evaluator is, what is to be evaluated, who pays, and how the report will be shared.

### Can we pick our own guardian?

You can try. The statute allows an appointment when both parties consent to a guardian *ad Litem* who is approved by the court, and agreed names are common. But the court "has absolute discretion in determining who will be appointed," so the judge can reject a proposed name. S.C. Code Ann. § 63-3-810(B).

### Is the guardian my child's lawyer?

Not in the usual sense. The guardian represents the child's best interest, which may differ from what the child says he or she wants. Many guardians are lawyers, but lay guardians are allowed, and the court may appoint an attorney for a lay guardian when the case calls for one. S.C. Code Ann. §§ 63-3-820(A), (E), 63-3-830(A)(1).

### Can I get a copy of the guardian's notes?

Generally not. The statute requires the guardian to keep a complete file, including notes, but declares the notes to be the guardian's work product and not subject to subpoena. What you do get is the written report, which must list the names, addresses, and telephone numbers of everyone the guardian interviewed — so those people can be contacted, deposed, or called as witnesses. S.C. Code Ann. § 63-3-830(A)(5), (6).

### What if I cannot afford my share of the fees?

The court must consider each party's financial ability to pay when it reviews the reasonableness of the guardian's fees, and a party may ask the court to review the fees at any time during the case. Our [divorce FAQ](/page/resources/faq/divorce/#q16) explains how the initial retainer is usually split. S.C. Code Ann. § 63-3-850(B)(5), (D).

### Will the guardian talk to my child's teachers and doctors?

Usually. The guardian has access to the child's school and medical records by statute, and interviewing school officials is one of the listed parts of the investigation. The guardian may also petition the court for the parents' medical records. S.C. Code Ann. § 63-3-830(A)(2)(a), (d).

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General information about South Carolina law, not legal advice. Consultations: https://ndmlaw.com/consult/