Custody–Fantasy and Realism (April 2003)

Material for National Business Institute Lecture, April 2003

A. The Problem of Realistic and Unrealistic Expectations in Custody Matters

Getting a client to set realistic goals in a custody case is a problem all domestic attorneys face.  Informing a client that his or her goals may be unrealistic before or shortly after being retained can lead to not being retained or having the client believe the attorney is unenthusiastic about the case; however, allowing the case to proceed with the client having unrealistic goals frequently results in an unhappy client by the end of the case. A client whose goals are not being met is going to become reluctant to pay the attorney who is not achieving these goals.

One problem in goal setting is that there is no such thing as an unwinnable or unloseable custody case.  Practice family law long enough and one is sure to encounter a custody case won on the other parties’ pendente lite misdeeds or lost on one’s own client’s pendente lite misbehavior.  The phone call from the client informing me that the other party is in jail/in the looney bin/giving birth to Charles Manson’s love child has led, more than once, to victory being snatched from the jaws of defeat.  However, reliance upon such fortuitous circumstances is a risky basis for seeking custody.

In an initial custody case, the court generally awards custody to the person who had been the child’s primary caretaker prior to the action being instigated.  This is based on the strong presumption that it is in a child’s best interest to be cared for by the child’s primary caretaker. For example, in Clear v. Clear, 331 S.C. 186, 500 S.E.2d 790, 791 (Ct. App. 1998), the Court of Appeals summarily rejected the father’s contention that custody should be changed because mother was a topless dancer. Mother had been the primary custodial parent of the child and there was no evidence that her topless dancing affected the child; therefore, there was no reason (the court felt) to change custody.

In a modification case, there are basically four ways of changing custody .  The first three of these ways to change custody can also be a basis for the non-primary care giver to obtain custody initially.  Each way has different proof issues and requires somewhat different strategies. Developing a theory as to why custody should be awarded or changed is an important part of creating a litigation strategy.

1. Prove The Custodial Parent is Unfit

The first type of modification case is where the custodial parent is unfit.  The basic argument is that a foster parent is better able to care for the child than the custodial parent. The threshold issue is the custodial parent’s fitness and this type of case lends itself to a “scorched earth” strategy in which every flaw of the custodial parent is uncovered and stressed.  The attorney representing the custodial parent will primarily focus on that parent’s fitness. The attorney representing the non-custodial parent will also need to focus on that parent’s ability to properly care for the child, especially where that parent has had minimal or no contact with the child.

Often, this type of case will arise when the Department of Social Services (DSS) brings a case against the custodial parent for abuse or neglect and names the other parent as a defendant. See e.g., Charleston County Dept. of Social Services v. Father, Stepmother, and Mother, 317 S.C. 283, 454 S.E.2d 307 (1995) (concerns regarding mother’s sexual abuse of children result in temporary placement with maternal uncle and then permanent placement with father).

A lengthy litigation process can sometimes help one or both parties. If the custodial parent has the capacity to rehabilitate, time allows for the rehabilitation to take place.  If the non-custodial parent does not have a relationship with the child, time allows for the relationship to develop and also allows that parent to show that he or she can properly care for the child. The non-custodial parent may file subsequent temporary relief motions to seek increased visitation based on an increased relationship with the child. See, Calhoun v. Calhoun, 331 S.C. 157, 501 S.E.2d 735 (Ct.App. 1998) (numerous pendente lite hearings allowed based on showing of “changed [n.b., not ‘substantially’ changed] circumstances”).  Counsel needs to determine whether lengthy or quick litigation is more helpful to the client’s position and should try to control the litigation tempo accordingly.

2. Prove the Child is Having Substantial Problems the Custodial Parent Cannot Remedy

The second type of modification case is where the child is having problems that the custodial parent cannot remedy.  This situation occurs when some circumstance is causing problems in the child’s life (typically with health, school, step-parent, half or step-siblings) that the custodial parent cannot or will not remedy. The focus of this case is on the problematic circumstance and the custodial parents inability to fix it.

In representing the non-custodial parent, one should try to show: 1) the child is having serious problems related in some way to the custodial home environment or the custodial parent; 2) the custodial parent is unconcerned, ineffectual or the cause of the problem–at a minimum, the custodial parent is unable to remedy problem; and 3) the non-custodial parent is able to remedy the problem.  In representing the custodial parent, one should try to show that the problem is not that serious or that the non-custodial parent cannot remedy it (or is the cause of it).

There are numerous recent reported cases in which custody has been changed on this basis. In Kisling v. Allison, 343 S.C. 674, 541 S.E.2d 273, 277 (Ct.App. 2001), custody was changed to a father, in part, because mother’s chaotic living situation and behaviors were causing the child undue stress and separation anxiety. In Housand v. Housand, 333 S.C. 397, 509 S.E.2d 827, 830 (Ct.App. 1998), a mother’s refusal to maintain steady employment and her inability to provide financially for her children was a basis for changing custody to father. In Watson v. Poole,  329 S.C. 232, 495 S.E.2d 236, 239 (Ct.App. 1997), a mother’s continued unfounded child molestation allegations against father and unwillingness to foster a relationship between the child and father mandated a change in custody to father.  In Stanton v. Stanton, 326 S.C. 566, 484 S.E.2d 875, 878 (Ct.App. 1997), custody modification was warranted by mother’s failure to ensure child’s regular attendance at therapy sessions and by mother’s inflexibility with regard to visitation.  Inattentiveness to a child’s educational problems is also a basis to change custody. Kisling, supra; Glanton v. Glanton,, 314 S.C. 58, 443 S.E.2d 810, 811-12 (Ct. App. 1994).

In this type of modification case, where a parent is requesting a pendente lite change of custody, the attorney filing the modification action may want to consider requesting the appointment of a guardian nisi.  A guardian nisi is a guardian ad litem appointed by the court prior to any hearing. If either party objects within a designated period of time (usually 30 days but set within the order of appointment), a new guardian can be appointed; otherwise, the guardian nisi will remain the child’s guardian ad litem.  A guardian nisi can be vital at the temporary hearing in confirming the nature and extent of the child’s problems, which the custodial parent may try to minimize.  A sample order appointing a guardian nisi is below.

An alternative that some attorneys use to appointing a guardian nisi is to actually prepare and present the child’s affidavit at the temporary hearing.  However, this presents potential legal and ethical problems.  Rules 4.3 and 4.4 of the South Carolina Rules of Professional Conduct set limitations on an attorney’s dealings with unrepresented persons and third parties that may potentially be violated by an attorney’s contact with a minor child whose custody is at issue. Further, Rule 23(b), SCRFC discourages the use of children as witnesses to the misconduct of either parent..

3. Prove the Child’s Preference

The third type of modification case is based on the child’s preference.  It typically occurs with adolescent or teenage children who desire to develop a relationship with the non-custodial parent. Often the child is also having problems with the custodial parent.  The focus of this type of case is obviously on the child’s preference and its reasonableness.  However, both parental pressure and the vagaries of children can lead to the child changing preference pendente lite, instantly turning what appeared to be a strong case into a losing case.

In 1998, Section 2071515 was added to the South Carolina Code. Titled “Child’s preference for custody to be considered,” the statute holds: “In determining the best interests of the child, the court must consider the child’s reasonable preference for custody. The court shall place weight upon the preference based upon the child’s age, experience, maturity, judgment, and ability to express a preference.”  As of February 28, 2003, no reported South Carolina cases interpret this statute.

The case law dealing with a child’s preference shows that it is an important, but not necessarily prevailing, factor.  A teenage child’s expressed preference to reside with his father was one factor in changing custody in Aiken v. Nelson, 292 S.C. 400, 356 S.E.2d 839, 840-41 (1987). However, in Bolding v. Bolding, 278 S.C. 129, 293 S.E.2d 699 (1982), the Supreme Court reversed a change of custody based on an eleven year old son’s desire to live with his father, finding that this desire alone was not sufficient to show that the change of custody would be in the child’s best interests. In Smith v. Smith, 261 S.C. 81, 198 S.E.2d 271, 274 (1973), the Supreme Court reversed a lower court’s change of custody stating, “The mere fact that the seven year old child expressed a desire to live with his father did not constitute a change in condition sufficient to warrant a change in custody.”

The court in Moorhead v. Scott, 259 S.C. 580, 193 S.E.2d 510 (1972), upheld a denial of a change in custody request, which was based on the wishes of children aged nine, eleven and twelve to live with their father. In Perry v. Perry, 315 S.C. 373, 433 S.E.2d 911, 912 (Ct.App. 1993), the Court of Appeals affirmed a family court order awarding father custody of the parties’ three children (ages 12, 8, and 5 at the time of trial), despite evidence that the children wished to live with mother, as there was substantial evidence indicating that father was better able to care for the children.

To obtain a change of custody on preference grounds, a practitioner should show: 1) the child is of suitable age and discretion to have input and has a reasonable basis for wanting to live with the non-custodial parent; 2) the non-custodial parent is capable of parenting the child; and 3) the non-custodial parent is willing to foster a relationship between the child and the other parent. Often, in preference cases, attempting to prove the custodial parent’s unfitness is counterproductive because it can give the court concerns regarding the non-custodial parent’s willingness or ability to foster a relationship with a parent with whom the child has had a strong,  substantial relationship.

Again, where the parent is requesting a pendente lite change of custody, the attorney filing a modification action based on the child’s preference may want to consider requesting the appointment of a guardian nisi.  A guardian nisi can be vital at the temporary hearing in confirming the child’s preference problems.  However, unless the child’s preference is extremely strong (e.g., the custodial parent is moving away from the location where a teenager has lived most of his or her life, uprooting the child from school and friends) or unless the child is having severe problems with the custodial parent, the court generally will not change custody pendente lite where the basis of the custody claim is the child’s preference.

4. Prove the Non-Custodial Parent’s Rehabilitation

The final basis to change custody is rehabilitation. A non-custodial mother’s rehabilitation is sometimes used as a basis for a change of circumstances case.  In only one reported case has a mother’s rehabilitation been a sufficient basis to take custody away from a father. Stutz v. Funderburk, 272 S.C. 273, 252 S.E.2d 32, 34 (1979).  In light of the abolition of the “tender years” doctrine and subsequent case law it appeared to many practitioners that a parent’s rehabilitation, absent one of the above factors, was probably not grounds to change custody.

Yet, in Housand v. Housand, 333 S.C. 397, 509 S.E.2d 827 (Ct. App. 1998), the Court of Appeals reversed the family court’s refusal to change custody to a father based primarily on the father’s rehabilitation. Even though the opinion deals somewhat with the problems the mother was having, the basis for the change of custody was the father’s rehabilitation. The Housand opinion provides some basis for changing custody on rehabilitation, but its failure to identify and discuss the particular problems the children were having in the mother’s custody provides little guidance to the family court bar.

With an understanding of how custody is initially awarded and modified, a good practitioner can guide the client to having realistic expectations as to custody and visitation.  Asking the client to explain why he or she should get custody is often a reality-check for a client with unrealistic expectations.

There are two big problems with pursuing a case in which the client has unrealistic expectations.  The first problem is that relief that might have been achievable if the goals were realistic, do not get obtained. The second is that, in raising unrealistic issues, the client is in a position to be assessed substantial attorney’s fees.

Typically, these problems arise when a client seeks to have custody when he or she would have been a candidate for liberal visitation or seeks to have the other parent’s visitation restricted or supervised for no apparent reason. A parent who seeks custody without a realistic chance of obtaining it faces a built-in resistance from the other parent. Often if that parent had only sought liberal visitation, there would have been no resistance on the other parent’s part.  Further, in seeking custody without having a realistic basis for doing so, the parent signals the court that he or she may be difficult or demanding and the court may use that as a basis to limit that parent’s visitation with the child.

A parent who seeks to have the other parties’ visitation limited or supervised (without good cause) may give the court concerns that this parent really desires to alienate the child from the other parent.  In a close custody case, this can be a basis for awarding custody.  In Watson v. Poole,  329 S.C. 232, 495 S.E.2d 236, 239 (Ct.App. 1997), a mother’s unwillingness to foster a relationship between the child and father mandated a change custody to father.  See also, Radtke v. Radtke, 297 S.C. 260, 376 S.E.2d 275, 276 (1989) (A parent’s willingness to provide liberal visitation are factors to be considered in awarding custody).

Further, since attorney’s fees and costs can be awarded to the prevailing party, deciding what issues to contest will often determine which party has prevailed. A father awarded liberal visitation has prevailed if liberal visitation is all he sought; he has lost if he was seeking custody.  A father awarded standard unsupervised visitation has lost if he was seeking custody but prevailed if mother was seeking to have his visitation supervised. Setting realistic goals at the beginning can be a major factor in the award of attorney’s fees at the end.

STATE OF SOUTH CAROLINA COUNTY OF , Plaintiff(s), v. , Defendant(s).		) ) ) ) ) ) ) ) ) ) ) ) ) )		IN THE FAMILY COURT FOR THE            JUDICIAL CIRCUIT CASE NO: ORDER APPOINTING GUARDIAN AD LITEM, NISI

It appears that the Plaintiff has filed a complaint, seeking to change custody of the parties’ minor child. The Plaintiff bases this request for a change in custody, in part, on S.C. Code § 20-7-1515, which requires the court to consider a child’s reasonable preference for custody, placing weight on the child’s age, experience, maturity and ability to express a preference.

It appears that a guardian ad litem will need to be appointed to represent the minor child and to meet with the child to help the court determine the child’s reasonable preferences and whether custody should be changed pendente lite and permanently.

Wherefore is hereby appointed guardian ad litem for the minor child to represent the child’s interests. The guardian shall meet with the minor child prior to the temporary hearing, present information on the child’s reasonable preference, and, if the guardian so desires, make a recommendation on pendente lite custody.

If neither party objects to the appointment of this guardian nisi as guardian ad litem at the time of the temporary hearing, the guardian nisi shall remain guardian ad litem for the minor child, pendente lite.

IT IS SO ORDERED!

PRESIDING JUDGE, FAMILY COURT

B. The Statutory Criteria and the Real Criteria that Judges Apply

In South Carolina there are few statutes dealing with child custody. The two major statutes dealing with custody are:

S.C. Code § 20-7-1515, which states that “the court is required to consider a child’s reasonable preference for custody, placing weight on the child’s age, experience, maturity, judgment and ability to express a preference” and

S.C. Code Ann. § 2071530, which states that “In making a decision regarding custody of a minor child, in addition to other existing factors specified by law, the court must give weight to evidence of domestic violence as defined in Section 162520 or Section 162565 including, but not limited to: (1) physical or sexual abuse;  and (2) if appropriate, evidence of which party was the primary aggressor, as defined in Section 162570. The absence or relocation from the home by a person, against whom an act of domestic violence has been perpetrated, if that person is not the primary aggressor, must not be considered by the court to be sufficient cause, absent other factors, to deny custody of the minor child to that person.”

The non-statutory factor in determining child custody is “the best interests of the child.”  This standard is cited in over 100 reported South Carolina cases.  This standard means different things to different judges. However the factors that interest most judges are frequently cited in appellate decisions on custody.  These factors include:

Limited in its force to what relevance it has, either directly or indirectly, to the welfare of the child, a parent’s morality is a proper factor for consideration in a child custody case. Boykin v. Boykin, 296 S.C. 100, 370 S.E.2d 884, 885 (Ct.App. 1988);

The Family Court should consider the character, fitness, attitude and inclinations on the part of each parent as they impact the child.  In making custody decisions the totality of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed.  Parris v. Parris, 460 S.E.2d 571, 572 (S.C. 1995);

Generally, custody is awarded to the primary caretaker.  E.g., Clear v. Clear, 331 S.C. 186, 500 S.E.2d 790, 791 (Ct. App. 1998);

Psychological, physical, environmental, spiritual, educational, medical, family, emotional and recreational aspects of the child’s life should be considered. When determining to whom custody shall be awarded, all of the conflicting rules and presumptions should be weighed together with all of the circumstances of the particular case, and all relevant factors must be taken into consideration. Woodall v. Woodall, 322 S.C. 7, 471 S.E.2d 154, 157 (1996);

Guardian ad litem recommendations, a parent’s emotional stability and support network are factors to be considered in awarding custody.  A parent’s willingness to share transportation costs for visitation and provide liberal visitation are factors to be considered in awarding custody. Radtke v. Radtke, 297 S.C. 260, 376 S.E.2d 275, 276 (1989);

The education and parenting skills of a parent are legitimate factors to consider in awarding custody. Davenport v. Davenport, 265 S.C. 524, 528, 220 S.E.2d 228, 230 (1975);

A parent’s attentiveness to the educational needs of a child, especially a child with a learning disability, is a factor to be considered in determining custody. Glanton v. Glanton,, 314 S.C. 58, 443 S.E.2d 810, 811-12 (Ct. App. 1994);

The amount of time a parent has available to spend with a child is a factor to be considered in making a custody determination. Shainwald v. Shainwald, 302 S.C. 453, 395 S.E.2d 441 (Ct. App. 1990).

C. Helping the Client to Act Responsibly

Given an understanding of what factors the court considers in making custody determinations, an attorney can be quite effective in guiding the client to act in a manner helpful to his or her case. I advise clients that no matter how low the other party stoops in the case, there is never a downside to taking the high road and being as cooperative as reasonably possible.  Clients who discourage the other parent’s visitation, bad-mouth the other parent, or take actions to harm the other parent are not only doing a disservice to their children (who generally pick up on their parents’ bad behavior), they are damaging their own case.

Issues that affect the client’s fitness to be a primary custodial parent (or to exercise unsupervised visitation) should be addressed immediately.  With opposing counsel and a guardian looking into the parent’s life, such problems rarely remain hidden for long. In South Carolina, cohabitation is generally a bar to custody. A cohabiting client should be encouraged to either marry, or if the paramour is not a suitable step-parent or there is an impediment to marriage, the client needs to separate.  A client with drug, alcohol or anger problems needs to address these problems aggressively.

Make the guardian ad litem’s job easy.   In dealing with the guardian, the goal is to have the guardian recommend that your client gets custody.   Educate the client on the guardian’s role.  The client’s job is to convince the guardian that he or she is  a good and concerned parent.  Instruct clients to cooperate with the guardian and ask the guardian to inform you if your client is not cooperating.

Cooperating with the guardian greatly improves the chances that the guardian will take the time to understand, investigate and appreciate your client’s position.   Even if the guardian does agree with your client’s views on contested issues, the guardian should have a basis to testify regarding your client’s good attributes. Finally, if the guardian is completely remiss in the investigation, you can impeach on the guardian’s failure to fully investigate the case.

In a custody case, the relevant issue is often the parties’ parenting abilities at the time of trial, not at the time of filing.  Explain to your client what the court expects from a custodial parent and encourage your client to behave accordingly. Encourage the behavior that will help win your client custody and discourage the behavior that hurts the case.  Issues that the family court judge might consider disturbing, might seem normal to your client. If you do not educate your client on the expected behaviors, your client might be educated by an indignant judge: at the time of trial.

D. Guardian Ad Litem

Much of the discussion surrounding the Patel case and South Carolina’s new guardian ad litem legislation has dealt with perceived abuses by individual guardian ad items. It is possible that some of the claims of corrupted or inappropriately-influenced guardians have some truth to them.  However it is more likely that many of the perceived failings of guardian ad items are due to the poorly defined role that the system creates for guardians.  Basically the court and litigants expect the guardian to be three things: 1) an investigator; 2) a determiner of the child’s best interests; and 3) an advocate for the child. To the extent these roles conflict, we can expect guardians to be placed in awkward situations. The new guardian ad litem legislation, S.C. Code § 20-7-1545 et. seq, which went into effect on January 15, 2003, creates standards and sets limits on the guardian’s role.  It should alleviate some, but not all, of these problems.

The new legislation also makes the appointment of a guardian optional. Under § 20-7-1545, “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.”

Attorneys representing parents can greatly increase the guardian’s usefulness while holding down the guardian’s fee by deciding how they wish the guardian to be used at the time of the guardian’s appointment.

1. Guardian as Investigator

One of the tasks expected of guardians is an investigation of the child’s living situation.  Guardians can be quite useful in this role. The guardian is the one person able to go into each litigants’ home, unannounced if desirable, to obtain a clear view of each party’s living situation.  The guardian is the person best able to discuss the litigation process and assess whether the child has an opinion on custody and visitation. Because the guardian does not have a litigant’s agenda, there is less concern with the guardian discussing these issues with the child than there would be with the litigants or their counsel doing the same.

Finally, many witnesses who provide direct care for the child, such as teachers, pediatricians and counselors, may feel awkward talking to individual parties or their attorneys for fear of appearing to “take sides.” Because these witnesses perceive the guardian as neutral, they are generally willing to talk to the guardian about the child’s progress and living situations.  A guardian can save the parties the trouble, expense and intimidation of deposing these witnesses prior to trial while allowing the parties to know how these important care-providers view each party’s relationship with the child.

Under the new guardian ad litem legislation, a guardian is required to do a final written report which “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.” § 20-7-1549(6). A guardian who limits his or her work to undertaking this type of investigation and providing a clear, factual report on the investigation does the litigants a great service in helping to resolve, clarify or narrow custody and visitation issues.

Prior to this new legislation, guardians were often asked to interview every single witness on each parties’ witness list and would often be criticized for failing to interview every witness. However, the only reason for having the guardian interview every single witness was so that the guardian could make custody recommendations. This process allowed the guardian to usurp the judge’s role, as the guardian would be making recommendations based on witness interviews for witnesses who would often not testify at trial.  To the extent that either party was relying on non-testifying witnesses to make their custody case, this system almost guaranteed that the guardian would be better educated than the judge.

Because the new legislation does not allow guardians to regularly make custody recommendations, there is no need to have the guardian talk to each witness. Instead, it now becomes important for a party to have all important witnesses testify at trial.  Thus, a more focused guardian ad litem investigation should become the norm and attorneys should think about the investigation they wish the guardian to make and detail that investigation as part of the order appointing the guardian.

The biggest problem with the guardian undertaking a limited investigation is that the guardian is not in a position to fully advocate what is in “the best interests of the child.” Given the limitations imposed by § 20-7-1549(6), this may not be that important of an issue.

2. Guardian as Determiner of Child’s Best Interests

Rule 17(c), SCRCP, notes that a guardian can be appointed “for the protection of a minor.” This is the traditional role most people think of when they think of the guardian. There are three big problems with this role: 1) few guardians have the training to determine a child’s best interests; 2) it usurps the judge’s role; and 3) it allows the litigants an opportunity to place otherwise inadmissible evidence before the court.

If the parties cannot reach agreement, it becomes the judge’s job to determine what is in a child’s “best interests.”  Prior to the enactment of the new guardian ad litem statute, in allowing an apparently neutral guardian to make recommendations on what is in the child’s “best interests,” the system unwittingly allowed the guardian to do what the judge was supposed to do.  No criteria were set forth for how guardians were to determine a child’s “best interests” and no training was provided for guardians to educate them as to what the court was looking for in determining a child’s best interests.  Even if such criteria could be set forth and training provided, the recommendations would do nothing that the judge, after hearing all the evidence, would not be expected to do independently.

One provision of the new statute, S.C. Code § 20-7-1549(6), severely limits the guardian’s ability to make recommendations on custody.  That section reads:

The responsibilities and duties of a guardian ad litem include, but are not limited to: ….

(6) presenting to the court and all parties clear and comprehensive written reports including, but not limited to, a final written report regarding the child’s best interest. The final written report may contain conclusions based upon the facts contained in the report. The final written report must be submitted to the court and all parties 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 requirement for the submission of the final written report may only be waived by mutual consent of both parties. The final written 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. The guardian ad litem is subject to cross-examination on the facts and conclusions contained in the final written report. The final written report must include the names, addresses, and telephone numbers of those interviewed during the investigation. (emphasis added)

Because the guardian cannot make written recommendations on custody and can testify to his or her recommendations on custody only in limited circumstances, the guardian’s ability to shape the court’s determination of the child’s best interest will become more subtle.  The guardian is unlikely to be allowed to testify as to who should receive custody.  However, the guardian can testify to various factors (listed in section A, above) which are important to the court in determining custody. That is, the guardian will no long be testifying that “father should get custody”; instead the guardian will testify that “father is more attentive to the child’s educational progress” or “the father’s discipline style is more suited to the child’s development.”

Because the guardian will rarely make explicit recommendations, it is important to make sure that the guardian investigates the areas in which one’s client believes his or her custody position is stronger. This makes it even more important to determine the basis for which the client is seeking custody (or whatever visitation the client is seeking) at the beginning of the case so that the guardian can be provided direction on what areas to investigate that support the client’s position.

3. Guardian as Advocate

Another role the guardian is asked to undertake is to act as the child’s advocate: to determine the child’s wishes and to push that position. A lawyer’s ethical obligations note that when a client is under a disability (such as minority), “the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Rule 1.14(a), SCRPC.

In cases in which the child’s wishes conflict with what the guardian believes is in the child’s best interests, the guardian (especially an attorney-guardian) is left with a quandary.  By what criteria should the guardian decide when to push his or her own view of the child’s best interests over the child’s wishes?  If the guardian’s view of the child’s best interests conflict with the child’s wishes, should the guardian downplay the child’s wishes or seek appointment of an attorney for the child?  Can a guardian be a zealous advocate for the child, as required by Rule 1.3, SCRPC, when the child’s wishes and the guardian’s view of the child’s best interests conflict?  Because of the multiple roles the guardian is placed in, these questions are not only unanswered, they are unanswerable.

In cases in which a child is of suitable age and discretion, it may make more sense to appoint an attorney, rather than a guardian, to represent the child. Having a guardian “represent” the best interests of a 16 or 17 year old child ignores the fact that older teenagers have ways of controlling their own lives and that a guardian’s viewpoint may be unenforceable if it conflicts with a teenager’s wishes.

Until it is decided what role we want the guardian to play in custody proceedings, and provide guardians with clear guidelines how to execute that role, it will not be surprising that guardians, even good and conscientious guardians, remain in controversy. By deciding at the outset whether to appoint a guardian for the child, and what role and investigation the parties wish the guardian to have in the case, one can greatly increase the guardian’s effectiveness at a reduced cost while minimizing the controversial aspects of the guardian’s role.