In custody actions, don’t look to the guardian (or DSS) to carry your water

Posted Thursday, January 16th, 2025 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I see a lot of custody cases in which one or both parties expect the guardian to do the work and present the evidence that they themselves should be developing and producing. They get angry when the guardian won’t speak to myriad character or family member witnesses.  When there is a DSS case, parties often look to DSS to do the work to resolve custody in their favor—typically failing to even file a private action to address custody. They then get angry when DSS closes a case with a treatment plan but won’t advocate a change in placement.

This anger is misplaced. DSS is in the business of protecting children from abusive parents and helping problematic parents resolve their parenting issues. It is not in the custody business.  The guardian is neither an adjudicator nor a dump to provide/generate inadmissible hearsay from third-party witnesses.  I have written previously about what are the proper expectations for the guardian in private custody cases and those views have not changed.  A guardian is there to investigate what the court cannot otherwise observe. The guardian is not there to present hearsay statements from witnesses who could come to court to testify.

In my experience guardians have greater weight at temporary hearings than at trials. This is because at temporary hearings the family court has limited time and cannot determine witness credibility while at trial the court has more time and witness are subject to cross-examination as a way of addressing credibility.  Rather than asking a guardian to talk to non-party, non-caretaker witnesses, custody litigants should plan on having these witnesses testify at trial.  Rather than having the guardian review relevant documents, custody litigants should plan on introducing these documents at trial.  Yes, this will entail a longer, often much-longer, trial. But if these witnesses have important insights on custody, a family court judge needs to hear from them directly rather than being told what they told the guardian.  Further the judge, not the guardian, needs to observe and hear testimony regarding relevant documents.

A guardian should be asked to observe the parties interact with the children at issue. The guardian should be asked to interview the children’s important caregivers. The guardian should be asked to observe things (such as the parties’ homes) that a family court judge will not observe. A guardian might be asked to investigate parenting disputes to determine if one or both parties are taking unreasonable positions. However, guardians should not be asked to do the basic evidence gathering and witness development that parties and their attorneys should be doing.

Too often custody litigants get into unnecessary disputes with the guardian because they expect the guardian to do work they and their attorneys should be doing.  Do not look to the guardian (or DSS) to make your custody case.