presented by

The South Carolina Bar Continuing Legal Education Division

In the Best Interest of the Child: 2020 Guardian ad Litem Training and

Update

Friday, January 31, 2020

http://www.scbar.org/CLE

SC Supreme Court Commission on CLE Course No. 200671

6.0 MCLE; 1.0 LEPR

Table of Contents

Ethical Considerations for the Guardian ........................................................................................11 Barbara Seymour What I Learned in the Bojilov Case (and Child-related Caselaw Update) ...................................17 Gregory Forman Parenting Coordination .....................................................................................................................41 Jenny Stevens Substance Use Testing in Family Court ............................................................................................58 Michelle Bens Clare, Marie-Louise Ramsdale Challenges Facing Guardians ...........................................................................................................90 MJ Goodwin How Guardians Help (or Hinder) DSS ............................................................................................97 Deanne Gray Private Guardian ad Litem Statute .................................................................................................117

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In the Best Interests of the Child:

2020 Annual Guardian ad Litem Training and Update

Friday, January 31, 2020

This program qualifies for 6.0 MCLE; 1.0 LEPR SC Supreme Commission on CLE Course 200671

8:30 a.m. Registration and Breakfast (Breakfast sponsored by Soberlink) 8:50 a.m. Welcome and Opening Remarks

Julianne M. Stokes, Esq. Stokes Family Law & Mediation, LLC 9:00 a.m. Ethical Considerations for the Guardian Barbara Seymour, Esq. Clawson & Staubes, LLC 10:00 a.m. What I Learned in the Bojilov Case (and Child-related Caselaw Update) Gregory S. Forman, Esq. Gregory S. Forman, P.C. 10:45 a.m. Morning Break 11:00 a.m. Parenting Coordination Jenny R. Stevens, Esq. The Stevens Firm, P.A. Family Law Center 12:00 p.m. Lunch (on your own) 1:15 p.m. Substance Use Testing in Family Court Michelle Bens Clare, M.D. and

Marie-Louise Ramsdale, Esq. Ramsdale Law Firm, LLC

2:15 p.m. Challenges Facing Guardians

MJ Goodwin, Esq. Goodwin Law

3:00 p.m. Afternoon Break 3:15 p.m. Judges Panel: “Answers from the Bench” The Honorable Cely Anne Brigman

The Honorable Michèle Patrão Forsythe The Honorable Rosalyn Frierson-Smith The Honorable Jessica Ann Salvini

4:15 p.m. How Guardians Help (or Hinder) DSS Deanne M. Gray, Esq. Dorchester County Managing Attorney

SC Department of Social Services 4:45 p.m. Adjourn – Safe Travels!

In the Best Interest of the Child: 2020 Annual Guardian ad Litem Training

and Update

SPEAKER BIOGRAPHIES (by order of presentation)

Julianne M. Stokes

Stokes Family Law & Mediation, LLC Charleston, SC

(course planner)

Julianne Meggs Stokes graduated with honors from Presbyterian College in 2003, earning a B.S. in Political Science. She received her J.D. from Mercer University's Walter F. George School of Law in 2006. Mrs. Stokes was admitted to the South Carolina Bar in 2006 and has practiced almost exclusively in the Family Courts of South Carolina since that time. She deals on a daily basis with issues such as divorce, equitable distribution of assets and liabilities, alimony, and time-sharing and support of children. She also represents clients in high-asset, complex marital and family law cases, drafting and enforcing prenuptial agreements, modification of alimony or child support payments, modification of custody, and parental relocation cases. In addition to her very active litigation practice, Mrs. Stokes is also a certified Family Court Mediator and acts as a Guardian ad Litem in private custody matters. Mrs. Stokes is a member of the South Carolina Bar (Family Law Section), Charleston County Bar, and the South Carolina Women Lawyers Association. She is also a member of the South Carolina Bar Resolution of Fee Disputes Board.

Barbara Seymour Clawson & Staubes, LLC

Columbia, SC

Barbara Seymour represents lawyers, law firms, judges, and law students in matters related to ethics, professional discipline, and Bar admissions. She earned her Bachelor’s Degree in Management and Marketing from the University of North Carolina at Greensboro in 1990 and her Juris Doctor from the University of Georgia in 1993. Barbara worked as a trial lawyer until 2000 when she joined the staff of the Office of Disciplinary Counsel. She served as the Deputy Disciplinary Counsel from 2007 until 2017. Barbara is a member of the South Carolina Bar, the Georgia State Bar, the Association of Professional Responsibility Lawyers, the South Carolina Association of Ethics Counsel, and the South Carolina Women Lawyers Association. She currently serves on the Law Related Education, Professional Responsibility, Unauthorized Practice of Law,

Future of the Profession, and Diversity Committees at the South Carolina Bar. She was a 2006 and 2011 Fellow of the National Institute for the Teaching of Ethics and Professionalism. Barbara has served as an adjunct instructor in the Professional Legal Assistants Program at Converse College and the Paralegal Degree Program at Midlands Technical College. Her courses have included Ethics, Civil Litigation, Legal Research & Writing, Business Law, Torts, and Law Office Management.

Gregory S. Forman

Gregory S. Forman, P.C. Charleston, SC

Gregory S. Forman is a sole practitioner in Charleston, South Carolina. A 1984 graduate of Haverford College and a 1991 Cum Laude graduate of Temple Law School, Mr. Forman has been a member of the South Carolina Bar since 1992 and practicing family law since 1993. His practice’s emphasis is on family law at both the trial court and the appellate level.

Jenny R. Stevens The Stevens Law Firm, P.A. Family Law Center

Spartanburg, SC Jenny is the Managing Partner of The Stevens Firm, P.A. Family Law Center in Spartanburg, South Carolina where she practices with her husband, Ben, and their Associates. She was born and raised in Charleston, South Carolina, and is a graduate of the College of Charleston and Charleston School of Law. Jenny is a frequent speaker at local, state, and national continuing legal education seminars, and she planned and moderated the annual Guardian ad Litem training, sponsored by the South Carolina Bar, from 2011-2017. Jenny is a member of the Spartanburg & Greenville County Bar Associations, the South Carolina Bar, the American Bar Association, and the South Carolina Women Lawyer's Association. She is most recently an attorney member of the Association of Family and Conciliation Courts. She has found her work representing children in private custody litigation to be some of the most rewarding work in the practice of law. She is proud to have been awarded an AV Preeminent Peer Review Rating from Martindale-Hubbell for the last several years. She also serves on the Board of the Hub City Writer's Project - a non-profit supporting various literary endeavors in her adopted hometown of Spartanburg. When she isn't working, Jenny enjoys spending time at home with her husband and their six children who range in age from 9 to 22 and being “GiGi” to their granddaughter who is 3 years old. She and Ben travel frequently around the country and globe to attend and/or present at various family law and legal technology conferences, but they also to enjoy the quiet of home, which is a rare commodity with so many children running around!

Michelle Bens Clare, DO, MPH

Michelle Bens Clare is a physician and consultant with Coastal Medical Review, LLC She graduated from University of Michigan with a Bachelor of Science in Biopsychology and a Master of Public Health in Epidemiology. She graduated Michigan State University College of Osteopathic Medicine, Doctor of Osteopathic Medicine. She is currently licensed in Illinois, Michigan, Missouri and South Carolina.

Marie-Louise Ramsdale

Ramsdale Law Firm, LLC Mount Pleasant, SC

Marie-Louise Ramsdale is the principal lawyer of the Ramsdale Family Law firm in Mount Pleasant, South Carolina, and practices solely in the area of family law. She has served as President of the South Carolina Bar Foundation and as a member of numerous committees of the SC Bar. Marie-Louise holds an AV rating from Martindale-Hubbell. Marie-Louise was the volunteer attorney-coach for the Moultrie Middle School Mock Trial Team from 2012 to 2016, taking the team to first place in the State competition in 2016. She presently co-coaches the Wando High School Mock Trial Team. She is also working to address mental health issues for members of our profession through the Charleston County Bar and is excited to be the finance chair for a winning SC Governor's race this fall! In her (occasional) downtime she tries to parent two teenagers and, when that fails, resorts to power yoga and naps.

MJ Goodwin

Goodwin Law Anderson, SC

M. J. Goodwin has practiced law in Anderson County, South Carolina for 28 years. Ms. Goodwin began her career as an Assistant Solicitor. She opened her own firm in 1994 and began doing Guardian ad Litem work in Family Court. Over the past 25 years, Ms. Goodwin has served as Guardian ad Litem in over 1500 Family Court matters. In addition to Guardian ad Litem work, Ms. Goodwin also represents litigants in a variety of Family Court situations in Anderson and Abbeville Counties. When not practicing law, Ms. Goodwin enjoys spending time with her husband of 28 years, Chris, and her son, Thomas, who is a college student. The Goodwin Family breeds and raises the critically endangered Carolina Marsh Tacky Horse, which is the official South Carolina State Heritage Horse. The Goodwin Family is the largest breeding operation of the Carolina Marsh Tacky Horse in Upstate South Carolina, having produced 18 registered foals since 2011. Ms. Goodwin also enjoys art, literature and yoga.

The Honorable Cely Anne Brigman

SC Family Court Darlington, SC

Judge Cely Anne Brigman was born in 1961 to D. Kenneth Baker and Mary Cely Baker, now deceased. Her father practiced law over 50 years and her mother was a stay-at-home mom who eventually was elected the first female to both Darlington City Council and Darlington County

Council. Judge Brigman was educated in the Darlington County public school system and graduated from St. John’s High School in 1979. She went on to attend Columbia College where she graduated in 1983 with a B.A. in Public Affairs. During college, Judge Brigman was active in student government and was chosen for Who’s Who in American Colleges and Universities. Following graduation she attended the University of South Carolina School of Law, graduating a semester early in December 1985. She is licensed to practice in the State of South Carolina, the United States District Court and the United States Supreme Court. Upon graduation, Judge Brigman worked for Green, Lockemy and Bailey in Dillon, SC, eventually returning home to Darlington to practice with her father. Her last years of practice were spent focusing on family law with the Jebaily Law Firm in Florence, SC. In 2004, Judge Brigman was appointed to serve as Chief Magistrate of Darlington County, a position she held until her election to the family court bench. She served as past chair of the family law section for the Association for Justice and on the Family Law Council for the South Carolina Bar Association. During her 29 years of private practice, she was active with the South Carolina Bar, serving in both the House of Delegates and The Board of Governors. She has also spoken at numerous CLEs. Judge Brigman was elected to the Family Court Bench in May 2015. She is married to Greg Brigman and has two daughters, Baker Reynolds Tange and Emma Reynolds. She attends St. Matthews Episcopal Church in Darlington.

The Honorable Michele Patrao Forsythe

SC Family Court Charleston, SC

Judge Miche le Patra o Forsythe is a first-generation American, fluent in Spanish and Portuguese, and also studied French. She graduated from the University of Maryland Baltimore County with a B.A. in Political Science, minoring in International Affairs. She attended the Universidad Nacional Auto noma de Me xico. Judge Forsythe worked at The White House and The United States Senate. She worked for the Department of Defense, assigned to Fort Meade. She graduated from University of South Carolina School of Law. Judge Forsythe was associate attorney at Query Sautter Gliserman & Price, LLC. She tried numerous cases in the Family Court, the Court of Common Pleas, the Court of General Sessions, the United States District Court, and argued before the Fourth Circuit of the United States Court of Appeals. After 10 years, Judge Forsythe left the law firm of Query Sautter Forsythe, LLC, upon her election to the South Carolina Family Court. Among other associations, Judge Forsythe is a member of the National Council of Juvenile and Family Court Judges; the South Carolina Family Court Bench Bar Committee; the South Carolina Interstate Commission for Juveniles; and the James L. Petigru Inn of Court. Judge Forsythe is a South Carolina Liberty Fellow.

The Honorable Rosalyn Frierson-Smith

SC Family Court Columbia, SC

Rosalyn Woodson Frierson-Smith, a native of Columbia, S.C., is a graduate of the University of South Carolina, School of Law and holds a Bachelor of Science degree in Business Administration from the University of South Carolina. She was appointed Director of South Carolina Court Administration by the South Carolina Supreme Court, serving from 1998 until June, 2017, having previously served as a S.C. Supreme Court Staff Attorney, Law Clerk to former Chief Justice Ernest A. Finney, Jr. and Research/Budget Analyst for the Ways and Means Committee of the S.C. House of Representatives. She also served as a substitute Municipal Court Judge for the City of Columbia. On February 1, 2017, she was elected by the S. C. General Assembly to the Family Court Bench. She is a member of the S.C. Bar Association, American Bar Association, Richland County Bar Association, S.C. Black Lawyers Association and S. C. Women Lawyers Association, having served as President of SCWLA in 2007. She formerly served on the House of Delegates for both the S.C. Bar Association and American Bar Association. She served as President of the Conference of State Court Administrators (COSCA) and Vice-Chair of the National Center for State Courts in 2011. Judge Frierson-Smith received the Richland County Bar Association Civic Star Award in 2002. In 2014 she was inducted into the National Center for State Courts Warren E. Burger Society and in 2015 was selected as a South Carolina Lawyers Weekly Leadership in Law Honoree. She was selected as a recipient of the 2016 Gold Compleat Lawyer Award given by the USC School of Law Alumni Council. She was the 2017 COSCA Kenneth R. Palmer Distinguished Service Award recipient. Judge Frierson Smith currently is a member of the Commission on Judicial Conduct, Family Court Bench Bar Committee, S.C. Children’s Justice Act Task Force, and Supreme Court Committee on Private Guardian ad Litem Issues.

The Honorable Jessica Ann Salvini

SC Family Court Columbia, SC

Jessica Ann Salvini was born in Upland, California in 1975. Her mother, Hazel L. Salvini, nee Shelly, is a former nurse and homemaker. Her father, John M. Salvini, is retired from the Burlington Northern Santa Fe Railway (BNSF) where he worked for 57 years. Her mother’s family has been in California over 100 years, and her father’s parents immigrated to California from Italy and Croatia. Judge Salvini grew up in the Inland Empire of Southern California in San Bernardino Valley. She is the oldest of four sisters. She graduated from Fontana High School in 1993, earned her BA in Political Science with a Minor in History from the University of California Riverside in 1997. Inspired by her childhood dreams of becoming a judge, she began law school at Golden Gate University School of Law in San Francisco, California with a focus on trial advocacy. She received

her JD in 2000 along with a certificate of distinction in litigation and recognition for her achievements in the art and science of advocacy. Judge Salvini was admitted to the California Bar in 2000 and opened her own law firm where she was also admitted to practice in the US District Court for the Northern District of California and the US Court of Appeals for the Ninth Circuit. ’She practiced in northern California for two years, focusing primarily on litigation in the civil, family, and criminal courts. Admitted to the South Carolina Bar in 2001, Judge Salvini moved to South Carolina in 2002 where she was admitted to practice in the US District Court for the District of South Carolina as well as the US Court of Appeals for the Fourth Circuit. She started a law firm, and was senior partner from its inception until her election to the Family Court Bench in 2019. Judge Salvini's practice continued to involve litigation in the civil, family, and criminal courts of South Carolina. In addition to her practice, Judge Salvini was appointed to serve as an Associate Municipal Court Judge for the City of Mauldin in 2007, and became the Chief Trial Judge for the City of Mauldin in 2009. Judge Salvini's time as Chief Judge for the City of Mauldin reinforced her desire to contribute to society on the bench. She is devoted to providing a Court that is fair and civil to all who appear before the bar of justice.

Deanne M. Gray

SC Department of Social Services Summerville, SC

Deanne M. Gray received her B.A. in History/Political Science from the University of Pittsburgh and her J.D. from Rutgers University School of Law. Ms. Gray served as a law clerk to the Honorable William Howard during his tenure on the Court of Appeals before becoming an Assistant Solicitor in Charleston County Family Court, prosecuting sexually based offenses committed by juveniles. Besides being a member of the South Carolina Bar, Ms. Gray is also a member of the Texas Bar and was employed by the City of Fort Worth as a Prosecuting Attorney and an Assistant City Attorney. Ms. Gray’s focus has always been to advocate for children in her community by working as a Juvenile Assistant Solicitor, serving as a volunteer Guardian ad Litem, working as an AVID tutor for high school students, and volunteering as a Judge for the Middle School and High School Mock Trial Competitions sponsored by the South Carolina Bar Association. Ms. Gray lives in Summerville with her husband and two sons. She has the pleasure of serving the children and families of Dorchester County as the Managing Attorney of Dorchester County Department of Social Services since March 2013.

Ethical Considerations for the Guardian

Barbara Seymour

Ethics and Professional Responsibility for Guardians ad litem

2020 Guardian ad Litem Training and Update

South Carolina Bar

January 31, 2020

Barbara M. Seymour

Clawson and Staubes, LLC

(803) 509-8185

barbara@cslaw.com

Ethical guidance for guardians ad litem comes from a variety of sources, including published

appellate court opinions, statutes, and national and state associations and organizations dedicated

to protecting children involved in legal disputes. This hodge-podge of standards is made all that

more difficult to navigate when a guardian ad litem is also an attorney, bound by rules of

professional conduct. In these materials, I have attempted to pull together guidance from these

sources in an effort to help both lay and attorney guardians ensure that they uphold the highest

ethical standards and perform their duties such that the parties and, most importantly, the children

can be confident in the integrity of the judicial process. Using relevant portions of the South

Carolina Bar’s Guidelines for Guardians ad Litem for Children in Family Court as an outline, I

have correlated the statutory requirements, court mandates, and where appropriate the South

Carolina Rules of Professional Conduct to provide a comprehensive review of the GAL’s ethical

standards.

The Duty of Competence

GUIDELINE IV.H. A guardian ad litem should perform assigned duties competently ... to assure

that the matter undertaken is completed without avoidable harm to the child’s best interest.

GUIDELINE IV.I. A guardian ad litem should recognize areas of expertise beyond his or her

competence and make efforts to obtain sufficient information, training or assistance in those areas.

GUIDELINE IV.F. When circumstances suggest the need for independent legal representation of

the child, for example, when a child of sufficient age and maturity disagrees with the position of

the guardian ad litem regarding the proceedings, the guardian ad litem should move for a hearing

on the issue. If the court finds that the child is capable of mature and independent decisions, the

guardian ad litem should be dismissed and an attorney appointed for the child. The guardian ad

litem duties shall continue in addition to the child’s attorney in cases where required by statute.

[See also, GUIDELINE IV.J. “It is the responsibility of the guardian ad litem to request the

appointment of an attorney.”] GUIDELINE IV.K. In judicial proceedings involving issues affecting a child’s interest, a

guardian ad litem should (through counsel unless the guardian ad litem is an attorney) introduce

evidence, examine and cross-examine witnesses, and present the child’s positions to the court. The

guardian ad litem should otherwise participate in the proceedings to the degree necessary to protect

the child’s interest. If the guardian ad litem becomes aware of benefits and services to which the

child is entitled, the guardian ad litem should bring these issues to the attention of the court.

The Duty of Diligence GUIDELINE IV.H. A guardian ad litem ... should be prompt, diligent and attentive to details to

assure that the matter undertaken is completed without avoidable harm to the child’s best interest.

SECTION 63-3-830(A)(2). Responsibilities of GAL in private action include:

(a) obtaining and reviewing relevant documents;

(b) meeting with and observing the child on at least one occasion;

(c) visiting the home settings if deemed appropriate;

(e) obtaining the criminal history of each party when determined necessary;

GUIDELINE IV.B. A guardian ad litem should interview the parties, parents and caretakers of

the child, unless it would be contrary to the child’s interests or otherwise inappropriate under the

circumstances. Consent of the parents’ attorneys, if any, should be obtained by the guardian ad

litem before communicating with the parents. Unless the parents’ interests conflict with those of

the child, the guardian ad litem should give deference to their wishes, absent a good reason to do

otherwise.

SECTION 63-3-830(A)(2)(d). Responsibilities of GAL in private action include “interviewing

parents, caregivers, school officials, law enforcement, and others with knowledge relevant to the

case[.]”

SECTION 63-3-830(A)(4). Responsibilities of GAL in private action include “attending all court

hearings related to custody and visitation issues, except when attendance is excused by the court

or the absence is stipulated by both parties. ... The guardian must provide accurate, current

information directly to the court, and that information must be relevant to matters pending before

the court[.]”

SECTION 63-3-830(A)(5). Responsibilities of GAL in private action include “maintaining a

complete file, including notes.”

SECTION 63-11-510(4). A volunteer who serves as court-appointed special advocates for

children in abuse and neglect proceedings must: “maintain accurate, written case records[.]”

SECTION 63-11-510(5). A volunteer who serves as court-appointed special advocates for

children in abuse and neglect proceedings must: “provide the family court with a written report,

consistent with the rules of evidence and the rules of the court, which includes without limitation

evaluation and assessment of the issues brought before the court and recommendations for the case

plan, the wishes of the child, if appropriate, and subsequent disposition of the case[.]”

SECTION 63-11-510(6). A volunteer who serves as court-appointed special advocates for

children in abuse and neglect proceedings must: “monitor compliance with the orders of the family

court and to make the motions necessary to enforce the orders of the court or seek judicial

review[.]” GUIDELINE IV.P. The duties of the guardian ad litem continue until relieved by the court or

upon an unappealed final order. The guardian ad litem should be mindful that the litigation may

not be concluded until all appeals and subsequent proceedings are final. The level of participation

in the appeals process is to be determined by the guardian ad litem based on the facts and

circumstances and in light of the best interest of the child.

GUIDELINE IV.Q. Guardians ad litem should recognize the need for continuity of representation

in a child’s life and be prepared to serve throughout all stages of the case. Guardians ad litem who

are unable to continue to serve should cooperate fully with successor guardians ad litem.

The Duty of Independence

GUIDELINE IV.A. A guardian ad litem should conduct an independent assessment to determine

what is in the best interest of the child.

“[A] guardian ad litem's ultimate responsibility is to assist the Court in protecting the best interests

of the child.” Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d 424 (1996)

“The GAL 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, 347 S.C. 281, 555 S.E.2d 386 (2001)

“[A] GAL shall ... conduct an independent, balanced, and impartial investigation to determine the

facts relevant to the situation of the child and the family.” Patel v. Patel, 347 S.C. 281, 555 S.E.2d 386 (2001)

SECTION 63-3-830(A)(1). Responsibilities of GAL in private action include “representing the

best interest of the child[.]”

SECTION 63-3-830(A)(2). Responsibilities of GAL in private action include “conducting an

independent, balanced, and impartial investigation to determine the facts relevant to the situation

of the child and the family.”

SECTION 63-11-510(1). A volunteer who serves as court-appointed special advocates for

children in abuse and neglect proceedings must: “represent the best interests of the child[.]”

SECTION 63-11-510(3). A volunteer who serves as court-appointed special advocates for

children in abuse and neglect proceedings must: “conduct an independent assessment of the facts,

the needs of the child, and the available resources within the family and community to meet those

needs[.]”

The Duty of Communication GUIDELINE IV.C. A guardian ad litem should communicate with the child as appropriate in

light of the child’s age and maturity. The guardian ad litem should explain the role that he or she

will play in the particular litigation and the nature of the relationship the child should expect to

have with the guardian ad litem. The guardian ad litem should be careful not to raise false hopes

or unreasonable expectations, and keeping in mind the temporary nature of the relationship, should

not facilitate overdependence. A guardian ad litem should keep the child informed about the status

of the litigation and the child’s interests that may be affected by the litigation. A guardian ad litem

should explain what he or she thinks is best for the child, even if it conflicts with the child’s wishes.

SECTION 63-3-830(A)(2)(f). The investigation of a GAL in private action must include

“considering the wishes of the child, if appropriate[.]”

GUIDELINE IV.E. A guardian ad litem should consult with the child and make decisions with

the child about the outcome of the proceedings affecting the child, commensurate with the child’s

age, experience, maturity and judgment. A guardian ad litem should recognize that children have

varying degrees of competence and, to the extent a child is able to articulate an opinion about the

ultimate outcome of the proceeding, the child’s opinion is entitled to weight. In any case in which

the guardian ad litem must make important decisions on behalf of the child, the guardian ad litem

should consider all the surrounding circumstances and act with care to safeguard and advance the

best interest of the child.

The Duty of Confidentiality GUIDELINE IV.D. A guardian ad litem should strive to protect confidential communications

with the child and should help the child understand that anything that the child tells the guardian

ad litem may be revealed. A guardian ad litem should carefully explain to a child under what

circumstances he or she is allowed, or may be compelled, to disclose the child’s confidences. Prior

to disclosure, the guardian ad litem should discuss with the child any intention to disclose a

confidential communication and the reasons for doing so. A guardian ad litem should give

deference to the wishes of the child in deciding whether to disclose a confidential communication,

absent an appropriate reason for doing otherwise.

“If children or their parents knew the guardian might later use the information gathered from an

investigation to advance a position that might be detrimental to the children, all parties might be

even more reluctant to discuss matters candidly with the guardian ad litem.” Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d 424 (1996)

“[A] guardian ad litem has no absolute duty of confidentiality to his ward. ... In fact, at times the

guardian ad litem may well have a responsibility to communicate to the Court information given

him by his ward.” Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d 424 (1996)

The Duty of Integrity GUIDELINE IV.G. A guardian ad litem should inform the court of the relevant wishes of the

child, irrespective of the child’s age. If the child does not have his or her own attorney, the guardian

ad litem should assist the child in conveying the child’s wishes to the court through appropriate

means, such as testimony or the introduction of evidence. This is a responsibility of the guardian

ad litem regardless of whether the child’s expressed wishes coincide with those of the guardian ad

litem’s opinions of the best interest of the child.

GUIDELINE IV.N. In some types of cases, a guardian ad litem shall be paid the fees ordered by

the court or agreed upon between the parties and the guardian ad litem. At the earliest possible

time, the guardian ad litem should notify the parties of the proposed fee. A guardian ad litem

should submit itemized statements based on the time and expense records schedule. In child

protection cases, the volunteer guardians ad litem do not receive fees. GUIDELINE IV.O. In dealing with an unrepresented party, the guardian ad litem should take

steps to assure that the party understands the guardian ad litem’s purpose and that he or she is not

serving as an attorney for any party. A guardian ad litem should not give advice to unrepresented

parties but may answer questions about resources and procedures for obtaining an attorney. If the

guardian ad litem believes that an unrepresented party may be incompetent this suspicion should

be brought to the attention of the court as soon as reasonably possible with notice to the other

parties.

“Particularly in performing his investigatory function, a competent guardian ad litem hopes to gain

the trust and confidence of the child he seeks to protect and of the child's family.” Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d 424 (1996)

“[T]he conflict of interest [portions of the Rules of Professional Conduct] should apply to attorney

guardians ad litem.” Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d 424 (1996) “A ward of an attorney guardian ad litem should not have to encounter that person in subsequent

litigation in which the former guardian ad litem is representing anyone whose interests are

potentially or actually adverse to the ward's. A guardian ad litem has the duty of advocating the

best interests of his ward and should not, in future proceedings, represent parties with interests

opposed to the best interests of his former ward.” Townsend v. Townsend, 323 S.C. 309, 474 S.E.2d 424 (1996)

What I Learned in the Bojilov Case (and Child-related Caselaw Update)

Gregory Forman

Things I learned trying Bojilov

By Gregory Forman

The risk of sending South Carolina family law clients to counseling

Many family law clients in the initial stage of custody or divorce litigation could benefit from counseling.

Whether it is developing better coping methods for handling the stress of separation and litigation,

learning how to better communicate with a co-parent, or learning how to better handle conflict with an

estranged spouse or co-parent, the skills one can learn in counseling can be invaluable. South Carolina

has two separate code provisions that are supposed to protect such counseling information from

disclosure. However these provisions have exceptions and sometimes these exceptions can be used to

compel disclosure–even in situations where such counseling information should not be disclosed.

The two statutes at issue are S.C. Code § 19-11-95, titled “Confidences of patients of mental illness or

emotional conditions,” and S.C. Code § 44-22-90, titled “Communications with mental health

professionals privileged; exceptions.” Both statutes generally protect such counseling information from

disclosure. However, S.C. Code § 19-11-95(D)(1), specifies, “A provider shall reveal: (1) confidences

when required by statutory law or by court order for good cause shown to the extent that the patient’s

care and treatment or the nature and extent of his mental illness or emotional condition are reasonably

at issue in a proceeding; provided, however, confidences revealed shall not be used as evidence of

grounds for divorce.” This provision has been used by the court to order disclosure of counseling

information in custody cases.

There are a few situations in which counseling records should probably be subject to disclosure. When

one lists the counselor as a witness at trial, disclosure of the counseling records is reasonable–as case

law notes, one should not be able to use a privilege as a sword and a shield. Griffith v. Griffith, 332 S.C.

630, 506 S.E.2d 526, 530 (Ct.App. 1998). S.C. Code § 44-22-90 explicitly makes a patient introducing his

mental condition in a civil proceeding as an element of his claim or defense as a basis to waive the

confidentiality privilege.

When a client suffers from a serious mental illness that impacts his or her parenting ability, counseling

records should be subject to disclosure. See S.C. Code § 63-15-240(B)(12) (“In issuing or modifying a

custody order, the court must consider the best interest of the child, which may include, but is not

limited to: …the mental and physical health of all individuals involved…”). S.C. Code § 19-11-95(D)(1)

would appear to authorize such disclosure in that circumstance.

Where a party does not place his or her own mental condition at issue, and where a party does not

suffer from a mental condition that impacts his or her parenting ability, records of counseling intended

to assist in adjustment to a post-divorce life or to better handle conflict with estranged spouses or co-

parents should not be subject to disclosure. When I have obtained from my client’s mental health

counselor an affidavit indicating my client does not suffer from any mental condition that impacts his or

her parenting ability the family court has, with one exception, protected the counseling records.

However that exception is extremely problematic. An order compelling a client to release counseling

records in interlocutory and not subject to appeal. Patterson v. Spector Broadcasting Corp., 287 S.C. 249,

335 S.E.2d 803 (1985) (an order compelling discovery is interlocutory and not directly appealable).

Instead, “to challenge the specific rulings of the discovery orders, the normal course is to refuse to

comply, suffer contempt, and appeal from the contempt finding.” Davis v. Parkview Apartments, 409

S.C. 266, 762 S.E.2d 535, 543 (2014).

Advising a client to refuse to release counseling records and suffer the contempt is dangerous. In

practice, the family court will hold the client’s contempt against the client at trial. In theory, the family

court could place the client in jail until he or she releases the records, so the client could languish in jail

while the appeal is heard and lose custody if the client had custody before going to jail. While a test case

challenging a family court’s order to release counseling records when the client does not suffer from a

condition that impacts parenting ability and does not intend to use the counselor as a witness at trial

would create greater uniformity among family law judges, there is no good way to bring that test case to

the appellate court.

In the Bojilov case my client released her counseling records rather than risking contempt. While she

discontinued counseling, we decided to use the counselor as a witness at trial and elicited testimony

that her husband’s demand for counseling records was one more attempt by him to bully my client–a

contention the trial court accepted.

While I still advise certain clients to get counseling when I believe it will help them better handle the

stress of domestic litigation or better engage with an estranged spouse or co-parent, I no longer feel

comfortable guaranteeing them that these records will never be disclosed. Family law litigants should

not have to risk counseling records being disclosed when they engage in counseling for the purposes

noted above.

Remedies for the evasive deposition witness

Few areas of litigation practice are more frustrating than deposing an evasive, hostile or obnoxious

witness. In the courtroom setting, a witness who acts these ways will be admonished by a judge to stop.

If the witness continues that behavior, criminal contempt–sending the witness briefly to jail until he or

she behaves–is an available sanction. Further, since the factfinder is witnessing such behavior firsthand,

it will act to the litigants’s detriment if the witness is a litigant. A deposition setting–taking place outside

of the courtroom and outside of a judge’s supervision–lacks these safeguards. A witness who wants to

evade questions and attack the deposing attorney can do so without that attorney having any ability to

stop the behavior immediately.

However there is a remedy–actually a surprisingly powerful remedy: the motion to compel. Typically

these are used when an opposing party will not answer paper discovery (interrogatories; requests for

production; requests for admissions) or when a witness flat-out refuses to answer questions at a

deposition. However Rule 37, SCRCP, which governs motions to compel, states at subsection (a)(3), “an

evasive or incomplete answer is to be treated as a failure to answer.” Further Rule 37(b) allows the

depositing attorney to adjourn the deposition in order to file a motion to compel.

I took the deposition of Mr. Bojilov and, over five hours he refused to answer questions, evaded

answering my questions, argued with my questions, demanded to know why I was asking these

questions, and insulted me for asking them. After enduring hours of his evasive and rude treatment we

adjourned the deposition and I filed a motion to compel. Initially I had only intended to file a motion to

compel him to answer the questions he refused to answer, but a review of Rule 37 and some Federal

case law indicated I could also seek sanctions for his evasive and argumentative responses.

As a result of that motion, he was not only ordered to pay my fees and costs for the motion but also my

fees and costs (including court reporter and transcription costs) for his deposition. He was also ordered

to provide non-evasive, non-argumentative answers to my questions when his deposition resumes.

Having such an order in place when his deposition resumed was an extremely powerful tool. If he

continued to be argumentative and evasive he can have been held in contempt of court. Rule

37(b)(2)(D). The court can also strike his pleadings, prevent him from testifying, or deem certain facts to

be taken to be established. Rule 37(b)(2)(A-C). Now, if he evaded or argued with my questions, I only

needed to remind him of the court’s order and the available sanctions for his continued violation. If he

persisted in such behavior I could have filed a second motion to compel and sought the sanctions noted

above.

Too often depositions of recalcitrant witnesses are the metaphorical equivalent of nailing jell-O to the

wall. It is frustrating to see one’s time and one’s client’s money being wasted while a witness smugly

evades answering questions. Deposing uncivil witnesses is even worse–especially when attorneys are

subject to discipline for meeting incivility with incivility. However, one does not have to put up with such

deposition behavior. When witnesses become evasive or insulting, it is simply better to adjourn the

deposition and file a motion to compel.

Passports and child custody

I know family court judges who don’t have passports and am frankly shocked–until you experience

foreign cultures it’s hard to truly understand that radically different approaches to parenting other than

the current American middle-class norm might be effective (and might not be potentially abusive). The

world is diverse and increasingly interconnected. Children who don’t get to experience foreign cultures

are poorer off for it. Pretty much any child whose parents have sufficient resources for that child to be

able to travel should have a passport. However, unless passports and foreign travel are addressed as

part of initial custody agreements and court order, it can be much harder to address these issues later.

Federal regulations give the family court authority to order passports for children over a custodial

parent’s objection. CFR Title 22, Chapter I, Subchapter F, §51.28(3)(E) regarding Minors and Passports

reads:

3) Execution of passport application by one parent or legal guardian. A passport application may

be executed on behalf of a minor under age 16 by only one parent or legal guardian if such

person provides: …

E) An order of a court of competent jurisdiction granting sole legal custody to the

applying parent or legal guardian containing no travel restrictions inconsistent with

issuance of the passport; or, specifically authorizing the applying parent or legal

guardian to obtain a passport for the minor, regardless of custodial arrangements; or

specifically authorizing the travel of the minor with the applying parent or legal

guardian.

The regulation notes that a parent having “sole legal custody” does not need explicit permission from

the other parent to obtain a passport, so long as the order granting such custody contains “no travel

restrictions inconsistent with issuance of the passport.” However, when the parties have joint custody,

or when the opposing party has sole custody, the other party can use passports, and the right to foreign

travel, as a bargaining chip. Seeking relief from the family court may not always be effective and will

always involve delay.

I have begun counseling my custody clients who are interested in foreign travel to make the right to

obtain a passport and to foreign travel part of any initial custody agreement or litigation. If the other

side won’t agree to this, I counsel clients to fight for this right–under the assumption that once a final

order is in place, the other party will have all the leverage regarding this issue and my client might be

facing extensive subsequent litigation (and attendant delays) to obtain that right.

I simply do not understand most parents who categorically oppose the other party traveling out of the

United States with their children. I am willing to assist parents who want to oppose foreign travel for an

opposing party who wants to take the child to a country that has not ratified the Hague Convention on

the Civil Aspects of International Child Abduction, or when that parent has made credible threats to

permanently remove the child from the United States. Otherwise, I would no more fight an opposing

party’s desire to take the child on foreign travel than I would fight that party’s desire to immunize a

[non-immunocompromised] child. A passport shouldn’t be subject to bargaining. Absent the two

circumstances above, I counsel my clients to agree to passports without getting anything in return and

counsel them to not make any concessions in order to obtain passports.

Folks agreeing to joint legal custody should address the passport/foreign travel issue within that

agreement. Non-custodial parents who wish to travel outside the United States with their children

should ensure their custody agreements/court orders address passports and foreign travel. Failing to

address it in the initial agreement or order can lead to substantial and unnecessary problems later on,

when an intransigent parent uses this issue as leverage to obtain concessions that he or she would not

otherwise be able to able to obtain.

2019 Child custody case law update

By Gregory Forman

The January 4, 2019 Court of Appeals opinion in Brown v. Key, 425 S.C. 490, 823 S.E.2d 212 (2019),

represents the first published opinion addressing the 2014 revision to South Carolina’s grandparent

visitation statute, S.C. Code § 63-3-530(A)(33). Four months after affirming an award of grandparent

visitation under the prior, more restrictive statute, Brown reversed the family court’s award of

grandparent visitation.

Section 63-5-530(A)(33) makes a finding that “the child’s parents or guardians are unreasonably

depriving the grandparent of the opportunity to visit with the child, including denying visitation of the

minor child to the grandparent for a period exceeding ninety days” a necessary, but not sufficient,

condition to award grandparent visitation. In reversing the family court, the Court of Appeals found that

paternal grandmother had not met the burden of showing that Mother was “denying visitation of the

minor child to the grandparent for a period exceeding ninety days.”

Mother’s and grandmother’s relationship deteriorated after her son died. Mother began limiting

grandmother’s visitation and eventually required that it be supervised. However, at no time did Mother

simply stop allowing grandmother to visit. In reversing the award of grandparent visitation, the Court of

Appeals noted:

[T[he inclusion of the ninety-day requirement suggests our legislature seeks to curb the granting

of court-ordered visitation simply because visitation is not of the quantity the grandparent

would like. Such a time restriction is in line with preserving the right of parents to make

decisions regarding the custody and control of their children.

The opinion also includes the following language regarding Mother’s offers of visitation and

Grandmother’s resistance to Mother’s offers:

Mother testified she was willing for Grandmother to see Child but wanted the visitation

supervised because of the hostility between the parties following Father’s death and because

Child was young and had not spent much time with Grandmother. The record reveals

Grandmother’s continuing and clear resistance to this condition.

And

Both parties acknowledge Grandmother had only visited Child twice in the years prior to trial.

However, the record reveals Grandmother was offered supervised visitation with Grandmother

on multiple occasions during the year following Father’s death. Grandmother’s central point of

contention is that Mother’s insistence that visitation be supervised was unreasonable. We

cannot agree.

It is unclear from this opinion whether a parent’s demand that a grandparent’s visitation be supervised,

if not reasonable, would be sufficient to trigger the ninety day requirement if supervised visitation was

still offered a few times every ninety days

On February 13, 2019, the Court of Appeals reversed a family court’s finding that adoptive parents

abandoned their teenage child in the case of SCDSS v. Wiseman, 426 S.C. 70, 825 S.E.2d 74 (Ct. App.

2019). The case began when the daughter got into a verbal, and then physical, altercation with her

parents. Law enforcement intervened and transported the child to a short-term psychiatric unit.

While the child was at this facility, the Wisemans regularly communicated with their daughter and

cooperated with the treatment team’s recommendations. However, the child remained unstable at the

time of discharge and her treatment team recommended she be placed in a residential treatment

facility (RTF). No bed was available at any of the recommended residential treatment facilities and the

Wisemans were reluctant to have her return home given her unstable condition. DSS asked law

enforcement to place the child in emergency protective custody but officers declined to do this because

the child did not present a risk of harm. DSS then filed its own emergency protective custody action and

obtained an ex-parte order placing the child in a therapeutic foster home. Eventually she was placed in a

Residential Treatment Facility where she began receiving intensive trauma therapy and other psychiatric

intervention and treatment. The Wisemans regularly visited her and remained in communication with

her, all while following the recommendations of her treatment team. Following trial, the family court did

not find the Wisemans abused their daughter but did find they abandoned her. They appealed.

The Court of Appeals reversed, finding the Wisemans did not abandon their daughter. Citing Hamby v.

Hamby, 264 S.C. 614, 216 S.E.2d 536 (1975), the Court of Appeals noted:

[T]he question of abandonment is largely one of intent to be determined in each case from all

the facts and circumstances. The [Hamby] court explained abandonment imports any conduct

on the part of the parent which evinces a settled purpose to forego all parental duties and

relinquish all parental claims to the child. However, abandonment does not include an act or

course of conduct by a parent which is done through force of circumstances or dire necessity.

Internal citations omitted.

Here, because the circumstances rendered it unsafe for the child to be returned to the Wisemans’

home, and because they continued to visit their daughter and follow her treatment teams

recommendations, the Court of Appeals found they had not abandoned her. It noted the Wisemans

have never expressed that they did not want their daughter to return home following the completion of

her treatment. Further the DSS caseworker confirmed that DSS would not have returned the child to the

Wisemans after her discharge from the short-term facility. Accordingly, the Court found the Wisemans’

actions were compelled by the force of circumstances and dire necessity rather than any intent to

abandon their daughter.

In footnote seven, the Court of Appeals took issue with DSS’s litigation posture:

This court is perplexed with DSS’s seeking of the abandonment finding under the facts of this

case and in light of the caseworker’s equivocal testimony, the treatment team’s

recommendations, and the caseworker’s admission that DSS would not have returned Minor to

the Wisemans immediately upon her release from MUSC-IOP because of the recommendation

that minor be placed in a residential treatment facility. We recognize DSS was in a difficult

position due to the lack of an available RTF bed and the federal funding requirement that DSS

seek a finding of abandonment in situations such as this one. But, the Wisemans should not be

penalized for bureaucratic hardships. Nor would this court seek to chill the willingness of

prospective adoptive parents prepared to care for children suffering oppositional attachment

disorder or other health issues.

The factual circumstances of this case put the Wisemans’ in an untenable position. Their willingness to

adopt a child with serious psychological problems should be applauded. However such children

sometimes become so oppositional and defiant that they cannot safely remain in the care of someone

who lacks specialized therapeutic training. When this occurs, adoptive parents should not find

themselves defending claims of abandonment or central registry findings because the state lacks

sufficient resources to provide proper care for these children.

The May 8, 2019 Court of Appeals opinion in Klein v. Barrett, 427 S.C. 74 828 S.E.2d 773 (Ct. App. 2019),

finds the Court of Appeals affirming a very detailed and highly unusual custody arrangement.

Kline involved a custody modification brought by (Ex-)Wife. At the time of the parties’ 2010 divorce, (Ex-

)Husband had primary custody of the children with Wife having liberal visitation and both parties having

the right of first refusal. It was agreed that Wife would not have to pay child support while she pursued

a degree to become a certified registered nurse anesthetist (CRNA).

Initially, the parties were able to effectively co-parent. Shortly after Wife finished her degree Husband

asked her to begin paying child support. At that point communication between the parties broke down

and Wife filed this modification action seeking custody and child support. After trial and motions to

reconsider, the family court issued an order maintaining primary physical custody with Husband but

giving Wife more visitation (in an extremely detailed schedule), providing each party legal custody of

particular aspects of the children’s lives, and requiring Wife to pay child support, 2/3rds of the guardian

ad litem’s fee, and $10,000 of Husband’s attorney’s fees. Wife appealed and the Court of Appeals

affirmed.

The physical custody arrangement ordered by the family court and affirmed by the Court of Appeals

ended the previous right of first refusal but gave Wife alternating weekend visitation, starting Thursday

after school and continuing until the start of school on Monday. In weeks for which Wife has weekend

visitation (visitation weeks), Wife additionally has after school visitation Monday through Wednesday

until 7:00 p.m. During visitation weeks, the children eat dinner with Wife. Conversely, during non-

visitation weeks, Wife has after school visitation Monday through Thursday until 6:00 p.m., and the

children eat dinner with Husband.

The family court believed this arrangement was the best way to relieve conflict between the parties

while serving the best interests of the children. Apparently the parties’ children (a daughter age 16 and a

son age 11 at the time of trial) did not like going long periods of time without seeing either parent. Both

children told the clinical psychologist, who was appointed by the court to conduct a comprehensive

custody evaluation, that they wished to spend more time with Wife.

On appeal Wife argued that an alternating week custody arrangement was in the children’s best

interests. The Court of Appeals disagreed, specifically finding that this case presented “exceptional

circumstances” justifying joint custody:

In considering the physical placement arrangement challenged by Wife, we commend the family

court’s efforts to serve the needs of all parties involved. We find the court properly weighed the

preferences of the children and the recommendations of the experts and guardian ad litem. The

court appropriately incorporated this input into the new custody framework. Specifically, the

court addressed the children’s desire to spend more time at Wife’s home during the week by

extending the visitation until 7:00 p.m. on certain evenings so as to increase quality time and

allow for family meals with both parents. Additionally, the court expanded the duration of

Wife’s weekend visitation.

Citations omitted.

Given that Wife was also seeking joint custody, it’s not surprising that the Court of Appeals affirmed a

joint custody arrangement. What is surprising is how detailed the custody arrangement is and how the

family court fashioned a schedule with so many transitions between parties that no longer got along.

However given that the Court of Appeals found that the underlying conflict arose when Husband asked

Wife to begin paying child support upon her completion of the CRNA program (as she had agreed to do

in the parties’ divorce decree) and Wife responded by informing Husband she intended to seek custody,

it is hard to lay the fault for this breakdown on Husband.

The Court of Appeals further affirmed the award of $15,000 in attorney’s fees to Husband. The Court

noted that Wife’s annual income was $51,969.60 greater than Husband’s, that Husband’s attorney’s

fees amounted to approximately forty-four percent of his gross annual income whereas Wife’s accrued

fees were equivalent to around twenty-five percent of her gross income, and that Husband obtained

beneficial results. It concluded that Wife was in a superior position to bear the cost of the fees.

In requiring Wife to pay 2/3rds of the guardian’s fees the Court of Appeals noted that the family court

erred in applying the Glasscock factors and should instead have applied the factors from S.C. Code § 63-

3-850(B). In layman’s terms, this means that successful results are not a factor in the award of

guardian’s fees. However the Court of Appeals affirmed this unequal allocation of the guardian’s fees for

the same reasons it affirmed the award of attorney’s fees to Husband.

Finally, the Court of Appeals affirmed the award of child support to Husband. Given the unusual

visitation schedule, the family court employed Schedule C shared custody guidelines. On appeal, Wife

asserted neither party should pay child support. However given Wife’s greater income, Husband’s

retention of primary physical custody, and the agreement that Wife would begin paying child support

once she completed her CRNA program, the Court of Appeals affirmed the award of child support (at

trial, the family court did not award Husband any retroactive child support–something Husband should

have appealed). The Court of Appeals also made Wife pay 100% of the daughter’s orthodontic expense

because she informed Husband via email that she would do so.

It is unclear whether Kline portends a future in which South Carolina appellate courts approve creative

and detailed joint custody arrangements. It could simply be that one cannot defeat a joint custody

arrangement on appeal if one is seeking a result that moves the parties even closer to 50-50 physical

custody.

The October 30, 2019, South Carolina Supreme Court opinion in Bazen v. Bazen would be interesting if it

merely tested the constitutionality of South Carolina’s most recent version of its grandparent visitation

statute–more on that later. However, this case, which featured a mother who mouthed the proper

pieties about encouraging a relationship between her children and the parents of their deceased father

while finding creative ways to avoid having these paternal grandparents actually spend time with those

children, reveals the Supreme Court’s dim view of parents who would lie to the family court. To wit:

We are mindful that families often do not get along, even under the best of circumstances. In

the course of such struggles, family members are not always honest with each other. Ordinarily,

deceptive behavior within families is beyond the power of the court to address. Deceptive

behavior must end, however, when family members bring their disputes into the court system.

Tammie’s repeated representations to the family court—and in turn to this Court—that she

welcomes visitation, when in fact she refuses it, is unacceptable.

We agree with the family court that Tammie “has unreasonably denied the grandparents

opportunity to visit with the minor children by failing to allow communications through the

house phone or her cell phone.” We find her intentional, deceptive, and now contemptuous

behavior—designed to appear accommodating and cooperative while calculated to prevent the

visitation she claims to accept—is an intentional effort to keep the court from fulfilling its

responsibility under subsection 63-3-530(A)(33) and the Due Process Clause.

Our concern over Tammie’s behavior goes beyond the fact she intentionally deceived the court.

Her behavior has directly and adversely affected the welfare of the children. She damaged the

children’s previously positive and loving relationship with their grandparents. More significantly,

Tammie’s deliberate attempt to remove the family court from its proper role as arbiter of this

dispute, combined with her own refusal to communicate with the grandparents, put the

children in the unwelcome role of peacemakers between their grandparents and their mother.

This has been particularly true with the eldest daughter. In one instance, for example, she sent a

text message to her grandfather essentially asking him not to push visitation because she was

afraid it would upset her mother. She texted, “Please stop. . . .You’re breaking a part of — a part

of my family. I love you, but you’re hurting my mom so much, and she needs — means

everything to me.” As the family court found in the September 2018 contempt order, Tammie’s

refusal to comply with the November 2017 order “is exacerbating the situation.”

Tammie’s use of deception to keep the family court from fulfilling its duty to manage this

dispute, and her continued refusal to comply with the November 2017 order, places her

daughters in the completely inappropriate role of mediating the dispute between her

grandparents and her mother. No child should ever be placed in such a position.

We find Tammie’s intentional, deceptive, and contemptuous behavior—that not only cut off the

relationship between the grandparents and the children, but also made them proxies for

communication between Tammie and the grandparents—is a compelling circumstance that

justifies the State to intervene, and to order that Tammie permit the grandparents to have

visitation with the children.

A large part of any family law attorney’s practice is, unfortunately, talking parents out of behaviors that

undermine the relationships between their children and other loving family members, and developing

and highlighting evidence that the opposing party is engaging in such behaviors. This behavior has

certainly gotten the attention of our Supreme Court–hence Tammie’s smackdown–and one would

expect the family court judges to take notice. Deceptive behavior in family court cases should no longer

be tolerated. Now on to the actual analysis of the legal issues.

Bazen involved a constitutional challenge to the latest version South Carolina’s grandparent visitation

statute, S.C. Code § 63-3-530(A)(33). Initially Mother and Paternal Grandparents (Grandparents) had a

cooperative relationship–Mother even bringing the children to visit Grandparents at times when she

and the father were estranged. Eventually however Mother also became estranged from Grandparents.

When their son died she tried to limit their contact, going so far as to tell telling the children on

Grandparents’ presence shortly after their son’s funeral, “Y’all won’t see Pawpaw [Laverne] any more.”

One day Grandparents showed up a Mother’s house unannounced and she admonished them for doing

so and told them, “you need to call before you come.” When they would attempt to call she would not

answer. Eventually Grandparents filed for visitation.

At trial the family court awarded Grandparents visitation, including some overnight weekend visitation

and one week during the summer. Mother appealed and raised a constitutional challenge to the

grandparent visitation statute in her appeal. In addressing the constitutional challenge the Supreme

Court analyzed the three factors the United States Supreme Court laid out regarding grandparent

visitation statues in its Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49, 56-57

(2000), decision: (1) there must exist a presumption that a fit parent will act in the best interest of his or

her child, (2) the decision of a fit parent concerning grandparent visitation is entitled deference, and (3)

the impact to the parent-child relationship should be considered.

It found South Carolina’s grandparent visitation statute met those criteria. First, subsection 63-3-

530(A)(33)(2)(b) specifically recognizes a “presumption that the parental decision is in the child’s best

interest.” Second, the Supreme Court noted that it had repeatedly interpreted subsection 63-3-

530(A)(33) to require that the decision of the parent—protected by Due Process—be given substantial

deference. Third, subsection 63-3-530(A)(33)(2) specifically requires the family court to find

“grandparent visitation would not interfere with the parent-child relationship.”

Finally it rejected Mother’s argument that the requirement of “compelling circumstances” to authorize

grandparent visitation was unconstitutionally undefined. It found Father’s death satisfied the first

element of the grandparent visitation statute, “at least one parent must be deceased, or the parents

must be divorced or ‘living separate and apart in different habitats.’” § 63-3-530(A)(33). It found

Mother’s behavior satisfied the second element, “the parent has unreasonably deprived the

grandparent of the opportunity to visit with the child for more than ninety days.” § 63-3-530(A)(33)(1):

Tammie has consistently refused to permit the grandparents to visit with the children. Laverne

and Pansy both testified they attempted to call and visit on numerous occasions. Tammie

conceded this in her testimony. However, Tammie repeatedly refused to accept or return their

calls when they tried to schedule a visit. On several occasions, they called and asked one of the

children to check with Tammie for permission to visit, but Tammie never responded. Even at

trial Tammie resisted allowing visitation. When asked whether she would be willing to provide

the grandparents with a calendar of school and extracurricular functions so the grandparents

could attend, Tammie repeatedly stated they could find that information on “the website.”

The Supreme Court further found this depravation was unreasonable. While acknowledging that the

burden of proving unreasonableness falls to grandparents, it noted Mother acknowledged the children

loved their Grandparents, that she often needed care providers for the children that the Grandparents

could satisfy, and that there was no legitimate reason to deprive the Grandparents of contact. An

important part of this Supreme Court ruling is that, “[a]nimosity against the grandparents is not a valid

reason to deny them visitation.”

In analyzing the third element of the statute, “the grandparent visitation will not interfere with the

parent’s relationship with the child,” § 63-3-530(A)(33)(2), the Supreme Court noted:

[T]here is no evidence anywhere in this record that grandparent visitation will interfere with

Tammie’s relationship with her children. Nor has Tammie argued that it might. In fact, the only

indication in this record is that a healthy relationship between the children and their paternal

grandparents will be good for the children and will not interfere with Tammie’s relationship with

her children.

In analyzing the final element, “the family court finds by clear and convincing evidence that the parents

are unfit, or ‘there are compelling circumstances to overcome the presumption that the parental

decision is in the child’s best interest,’” § 63-3-530(A)(33)(2)(a), (b), the Supreme Court noted that

Mother was fit and thus Grandparents needed to show compelling circumstances. It held their son’s

death was evidence of compelling circumstances but insufficient, by itself, to establish compelling

circumstances. It further held that, “a family court may not overrule a fit parent’s decision and impose

grandparent visitation based on its own view of the child’s best interests, or its own conception of what

is a compelling circumstance.” It found the family court erred in doing so. However it found compelling

circumstances based on Mother’s duplicitous behavior, quoted at length at the beginning of this blog,

which unreasonably deprived her children and the Grandparents of the ability to develop a relationship

and placed her children in an middle of the dispute.

Despite rejecting Mother’s constitutional challenges to the grandparent visitation statute, the Supreme

Court still held that the family court awarded Grandparents too much visitation. It held:

[G]randparent visitation is not the same situation as when the court awards reasonable

visitation to a noncustodial parent. Family courts do not defer to the preferences of a custodial

parent in deciding visitation for a noncustodial parent. For grandparent visitation, however,

courts must give deference to the judgment of the parent. Just as a court must defer to a

parent’s decision on the fact of grandparent visitation, a court must also defer to reasonable

limitations or conditions a fit parent chooses to impose on grandparent visitation.

The Supreme Court noted that the Grandparents had only had two overnight visitations without a

parent being present and they had never had a parent-like relationship with the grandchildren. It noted

Mother’s concern that the children’s active extracurricular schedule would be impacted by overnight

visitation with grandparents who did not live near them. It therefore overruled the family court’s award

of overnight visitation (the family court had awarded Grandparents eight weekends, a three-day period

at Christmas, and one week at summer). However it noted that if Mother did not encourage and

ultimately allow some overnight visitation the Grandparents could petition the family court for more

visitation. Justice Kittridge, in partial dissent, would have authorized overnight visitation immediately.

I was an early critic of South Carolina’s first grandparent visitation statute, believing it to be overly

broad. I believed the second version was unduly narrow, and it’s latest version struck a proper

balance between a fit parent’s right to determine who their children have relationships with and the

state’s interest in allowing children to have relationships with their grandparent when their parents are

no longer together. The Bazen decision affirms the constitutionality of this latest version. In doing so, it

establishes a few important points for future grandparent visitation cases (and, on the first point, all

custody cases):

1) Duplicitous behavior by parents in custody disputes is not to be tolerated.

2) Death of a parent, while a factor in the “compelling circumstances” requirement for grandparent

visitation is not sufficient by itself to create compelling circumstances.

3) Grandparents have the burden of proving an unreasonable depravation of visitation.

4) A parent’s animosity is not a reasonable basis to deny grandparents visitation.

5) The family court cannot merely override a fit parent’s decision and substitute its own judgment on a

child’s best interests and “compelling circumstances.”

6) Unlike visitation for a parent, the family court must defer to and consider a fit parent’s views in

awarding grandparent visitation.

On November 6, 2019, the Court of Appeals, in the case of Kosciusko v. Parham, held that family court

orders approving arbitration awards regarding children’s issues are void ab initio.

In Kosciusko, the parties agreed to submit the issues of “right of first refusal, holidays, visitation

schedule, vacations, and transfers/transportation” to binding arbitration and obtained a consent order

incorporating the agreement. The order further provided that “the parties further agreed that such

confirmation shall not require a hearing, but may be accomplished based on written application of

either party.” Additionally, the order provided that the family court would retain continuing jurisdiction

to modify the arbitration award or any order of the court. They then arbitrated these issues and the

family court issued an order confirming the arbitration award without a hearing. Neither party appealed

the order confirming the award.

Father then filed a contempt action against Mother alleging she had violated terms of the arbitration

award. Mother moved to dismiss the contempt action, arguing the order was not valid. The family court

agreed and dismissed the contempt action. After the family court denied Father’s motion for

reconsideration, he appealed.

The Court of Appeals first found that “the submission of children’s issues to binding arbitration would be

an improper delegation of the family court’s authority and violative of South Carolina law because the

procedures mandated by the Uniform Arbitration Act would prevent the family court from determining

whether an award is in the child’s best interest.” It found that, in the context of children’s issues in

family court, the provisions of S.C. Code § 63-3-530(A)(39) override the provisions of South Carolina’s

Uniform Arbitration Act, S.C. Code § 15-48-10, both because 63-3-530(A)(39) is more recent and more

specific. That code subsection limits the family court’s jurisdiction for alternative dispute resolution

(ADR):

The family court has exclusive jurisdiction: to require the parties to engage in court-mandated

mediation pursuant to Family Court Mediation Rules or to issue consent orders authorizing

parties to engage in any form of alternate dispute resolution [that] does not violate the rules of

the court or the laws of South Carolina . . .

Father argued such arbitrations were authorized by Rule 3(a), SCADR, which allows parties to domestic

relations case to “mediate, arbitrate or submit to early neutral evaluation at any time,” However the

Court of Appeals noted Rule 4(d)(2), SCADR, specifically authorizes parties “may submit the issues of

property and alimony to binding arbitration,” while Rule 4(d)(1), SCADR only authorizes mediation for

custody and visitation issues. It further noted that Rule 4(d)(5), SCADR, states that “[i]n lieu of

mediation, the parties may elect to submit issues of property and alimony to binding arbitration in

accordance with the Uniform Arbitration Act…” and that this subsection did not grant a similar right to

arbitrate custody and visitation issues. It thus held the ADR rules did not authorize arbitration for

custody or visitation issues.

The Court of Appeals further noted that the Uniform Arbitration Act limited the family court’s authority

to review arbitration awards in a manner inconsistent with the family court’s obligation to protect the

best interests of children. Under the Uniform Arbitration Act “an inquiry into the substantive fairness of

an agreement . . . would be inconsistent with the Arbitration Act and would severely undermine the

finality of arbitration agreements.” Prior case law indicated that such circumscribed review was

allowable for alimony and property division awards but had never been acceptable for child related

issues. As the opinion notes:

Because the family court may not delegate its authority to ensure that issues regarding children

are resolved in their best interest, our supreme court has provided that family courts have

continuing jurisdiction to do whatever is in the best interests of the child regardless of what the

separation agreement specifies. …Accordingly, we find that our state’s precedent precludes the

submission of issues involving child custody and visitation to binding arbitration as such action

would constitute an improper delegation of the family court’s authority to determine issues in

the best interest of the child.

Father raised a number of additional grounds to uphold the arbitrated custody agreement, all of which

the Court of Appeals refused to address because they were not preserved for appellate review and

because subject matter jurisdiction cannot be waived.

The December 18, 2019 Court of Appeals opinion in Singh v. Singh, reached the same conclusion. With

no judges overlapping on the two three-judge panels, we have a unmistakable understanding of where

the Court of Appeals stands on this issue. Whether the Supreme Court decides to grant certiorari in

either of these two cases and provide us a definitive, and final, answer remains to be seen.

Singh cites somewhat different cases but reaches the same conclusion as Kosciusko: it violates bedrock

state policy for anyone other than family court judges (subject to review by the appellate courts) to

make binding determinations regarding the best interests of minor children. In Singh, the parties

submitted Father’s custody modification request to binding arbitration, with this request being

approved by an order of the family court. The operative order submitting these disputes to arbitration

required the family court to accept the arbitrator’s award and imposed an immediate $10,000 penalty

on any parent attempting to challenge the arbitration award. The arbitrator subsequently changed

custody to Father and Mother filed five separation motions seeking to vacate the arbitration award as

void pursuant to Rule 60(b)(4), SCRCP.

The family court denied these motions finding “(1) Mother was estopped from objecting to the

arbitration because she procured and accepted a benefit from the Settlement Agreement and the

consent order of dismissal, (2) she waived her right to object by participating in the arbitration

proceedings, (3) her due process rights were not violated because parents have the right to make

decisions for their children, and (4) she waived her constitutional rights by agreeing to the arbitration

and failing to timely challenge the arbitration.

Undergoing the same analysis of ADR Rules 3 and 4 that the Kosciusko panel undertook, the Singh court

determined there was no express authority to arbitrate children’s issues. The opinion further relies upon

the doctrine of parens patriae, citing Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S.

592, 600 (1982) (alteration in original) (footnotes omitted) (quoting Late Corp. of the Church of Jesus

Christ of Latter-Day Saints v. United States, 136 U.S. 1, 57 (1890)).:

Parens patriae means literally “parent of the country.” The parens patriae action has its roots in

the common law concept of the “royal prerogative.” The royal prerogative included the right or

responsibility to take care of persons “who are legally unable, on account of mental incapacity,

whether it proceed from 1st. nonage: 2. idiocy: or 3. lunacy: to take proper care of themselves

and their property.” At a fairly early date, American courts recognized this common-law

concept, but now in the form of a legislative prerogative: “This prerogative of parens patriae is

inherent in the supreme power of every State, whether that power is lodged in a royal person or

in the legislature [and] is a most beneficent function . . . often necessary to be exercised in the

interests of humanity, and for the prevention of injury to those who cannot protect

themselves.”

The opinion further cites Ex parte Messer, 333 S.C. 391, 509 S.E.2d 486 (Ct. App. 1998), “[p]arties to a

separation agreement may agree to submit all disputes, other than those involving their children, to

arbitration and thus deprive the family court of its traditional powers of enforcement over those

disputes” (emphasis added).

In supporting its holding, the opinion notes:

A court cannot be bound by an arbitration award and simultaneously act as parens patriae on

behalf of a child. Therefore, although parties are free to agree to submit these issues to

alternative dispute resolution, any agreement to limit the family court’s ability to review such an

award is unenforceable.

Prohibiting courts from overseeing arbitration decisions that involve the best interest of a child

infringes upon the public policy of this state. Our society has an inherent interest in every child.

As we stated, family courts are charged with protecting that interest for every child. Arbitrators

are not held to the same standards as family court judges, and the law does not impose upon

them the same duty to act in the best interest of a child. According to the arbitration

agreements Mother and Father entered into, the arbitrator usurped all of the decision-making

authority of the family court but undertook none of the duties imposed upon the court. Under

the arbitration agreements, this court would not have the ability to review the arbitrator’s

decision regardless of whether it conflicted with the best interest of the children. This opens the

question of whether family courts would have the ability to modify such arbitration awards

should a change in circumstance occur after a final award.

Finally, the Singh court rejected Father’s equitable estoppel defense, while analyzing it as a waiver claim:

[T]his case involves the fundamental rights of children in a custody action and the court’s duty

to protect the rights and interest of children. Thus, any waiver on the part of the parent cannot

be found to abrogate the rights of the child or the duty of the court. …We acknowledge the

parties made a conscious decision to include an arbitration provision in the Settlement

Agreement and reaffirmed their desire to arbitrate those issues by entering into agreements to

arbitrate, not once, but three times. A parent cannot waive the rights of any child or the duty of

the family court.

Emphasis in original.

Assuming Kosciusko and Singh are not subsequently modified, child custody, visitation, and child

support issues cannot be arbitrated in South Carolina and all existing confirmed arbitration award on

these issues are unenforceable.

In the November 6, 2019, case of Cooper v. SCDSS, the South Carolina Supreme Court found that the

family court had improperly denied Foster Parents’ requests to intervene in DSS removal actions.

The two sets of Foster Parents at issue had placement of Mother and Father’s three children (at the time

of trial one set of Foster Parents had the two older children; during the appeal, all three children were

placed with the second set of Foster Parents). DSS sought to remove the children from Foster Parents’

care and place them with Mother’s aunt. Foster Parents filed termination of parental rights (TPR) and

adoption actions, and subsequently sought to intervene in the removal actions and sought to

consolidate the removal and TPR/adoptions actions.

By the time the Foster Parents’ intervention and consolidation requests were heard by the family court,

DSS changed its position on removal and sought reunification with Mother. It argued that intervention,

consolidation, and granting discovery rights to Foster Parents would unnecessarily complicate the case.

DSS argued Foster Parents’ intervention rights were strictly permissive and not mandatory. DSS also

argued the volunteer GAL could protect the Children’s interest and that Foster Parents had a right to

attend the permanency planning hearing and to proceed with their private TPR and adoption actions.

The Volunteer GAL supported intervention but expressed concern about allowing consolidation because

different statutes govern the role of a volunteer GAL in a DSS action and the role of a GAL in a private

action, and the GAL stated a volunteer GAL should not “be expected to serve in protracted litigation

involving contests primarily between private parties.”

Without making any factual findings, the family court denied Foster Parents’ motions to intervene and

consolidate. After the family court denied their motions for reconsideration both Foster Parents

appealed. The Court of Appeals consolidated their appeals and requested the Supreme Court certify the

appeals for direct review. The Supreme Court granted that request. Before oral argument DSS withdrew

its opposition to Foster Parents’ requests and joined their requests for relief.

The Supreme Court’s opinion first addressed the family court’s deficient factual finding on Foster

Parents’ motions:

We stress that the family court must set forth pertinent findings of fact and conclusions of law

when ruling upon motions to intervene and to consolidate, especially when the best interests of

children are at stake. The unique facts of each case make it all the more important for the family

court to fully set forth its findings when ruling on such motions.

However the Supreme Court did not wish this insufficient fact finding delay resolution of Foster Parents’

motions:

The absence of any factual findings to support the family court’s denial of Foster Parents’

motions makes our review of the family court’s decision difficult. In many instances, a remand

to the family court would be appropriate; however, to avoid further delay in establishing

permanency for the Children, we have examined the record and will address the merits of each

motion.

The opinion next addressed whether Foster Parents’ invention request were as of right or permissive.

Interpreting Rule 24, SCRCP, the Supreme Court held their intervention requests were permissive:

Section 63-7-1700(J) provides that a foster parent is a “party in interest” in a DSS removal

action. Section 63-7-1700(J) further provides that a “party in interest may move to intervene in

the case pursuant to the rules of civil procedure and if the motion is granted, may move for

review.” (emphasis added). By using the word “if” in the emphasized portion of the statute, the

General Assembly recognized a foster parent’s right to intervene in a removal action is not

absolute.

A family court should therefore apply Rule 24(b)(2) when analyzing whether or not to grant a

foster parent’s motion to intervene. See Rule 24(b)(2), SCRCP (permitting intervention upon

timely application “when an applicant’s claim or defense and the main action have a question of

law or fact in common” and upon consideration of “whether the intervention will unduly delay

or prejudice the adjudication of the rights of the original parties”).

Given the facts of this case–the Foster Parents has long and enduring relationship with the children in

there are and these children were closely bonded to them–the Supreme Court held the family court

erred in not allowing intervention:

First, there is no dispute that Foster Parents timely moved to intervene, as required under Rule

24(b)(2). Further, while foster parent intervention will not be appropriate in every removal

action, here, Foster Parents have demonstrated their private TPR and adoption actions and the

DSS removal actions have questions of law and fact in common. The best interests of the

Children are certainly a consideration the private actions and the DSS actions have in common,

especially when considering the length of time the Children have been with Foster Parents.

Expert testimony indicates the Children are bonded with Foster Parents and that alternative

placement would be severely detrimental to the Children.

Under these circumstances, intervention will allow the family court to receive input from Foster

Parents that will aid the family court in reaching a timely decision on the merits of both removal

actions. We further conclude intervention will not unduly delay or prejudice the adjudication of

the rights of the parties to these actions.

We therefore hold the family court erred in denying the motions to intervene. We stress that

our decision in this case should not be interpreted as a signal to the family court bench and bar

that intervention should be granted to foster parents in every case. The decision to grant

intervention remains in the discretion of the family court following its analysis of the facts and

procedural posture of each case.

The Supreme Court next decided to remand the Foster Parents’ requests for consolidation of the

removal actions with their TPR and adoption actions back to the family court. It cited Rule 42(a),

SCRCP regarding consolidation:

Consolidation. When actions involving a common question of law or fact are pending before the

court, it may order a joint hearing or trial of any or all matters in issue in the action; it may order

all the actions consolidated; and it may make such orders concerning proceedings therein as

may tend to avoid unnecessary costs or delay.

In deciding to remand the consolidation issue, the Supreme Court noted the Children’s GAL raised

legitimate concerns regarding the consolidation of Foster Parents’ private actions with the DSS removal

actions. It further held that “DSS’s consent [to consolidation] and its reasons for such consent would

certainly be factors the family court should consider.”

Finally the Supreme Court rejected Foster Parents’ argument that DSS should have been joined in the

removal action as moot as the court had granted their motions to intervene. It found one Foster

Parents’ argument that the family court should have joined DSS as a party to their TPR and adoption

case to be without merit as they had already named DSS as a defendant in that case.

Two takeaways from Cooper. First, family court judges who make procedural decisions regarding

children’s rights must make detailed factual findings justifying those decisions. Second, Foster Parents

who have a substantial relationship with the children they foster should likely be allowed to intervene in

proceedings involving those children’s placement.

The November 13, 2019, Court of Appeals opinion in Tomlinson v. Melton continues the appellate

court’s disfavor of joint custody.

In Tomlinson, the parties entered a custody agreement at the time of their 2011 divorce that gave

Father primary physical custody and final decision making authority but gave Mother every other week

from Wednesday to Monday during the school year (along with alternating holidays and week-on/week-

off during the summer). It required Mother to pay nominal child support and authorized de novo review

of custody when the child started kindergarten. At the time of this agreement Father lived in Kingstree

and Mother lived in Sumter.

When the child started kindergarten, Father filed for full custody, and requested increased child

support. Mother counterclaimed for custody and child support. The family court preserved the status

quo at the temporary hearing. During the litigation period, Mother obtained employment and

purchased land (with the intention of building her residence) in Kingstree. At trial, the family court

modified custody to a week-on/week-off schedule during the school year, but left Father the final

decision maker. It required Father to pay child support and some of Mother’s attorney’s fees. It denied

Father’s request to have Mother’s child support arrears act as a setoff to his support obligation, holding

that Father’s plea for child support did not encompass a claim for reimbursement of arrears. After his

petition for rehearing was denied Father appealed.

The Court of Appeals reversed the family court. It found that Father’s complaint for child support

encompassed a claim for reimbursement or setoff of arrears, especially as both parties had testified as

to the arrears amount. It held that Father should be entitled to a $6,000 offset on his child support

obligation.

It also reversed the award of week-on/week-off custody during the school year. It looked to the South

Carolina Supreme Court opinion of Scott v. Scott, 354 S.C. 118, 579 S.E.2d 620 (2003), which required

“exceptional circumstances” to award brief alternating periods of custody, holding, “the family court

made no specific findings of exceptional circumstances to justify divided custody, nor do we find any

from our de novo review.” It noted, “[w]eek-to-week divided custody will rarely be in the best interest of

the child, especially during the school year.” As additional justification for reversing the family court, it

held:

[T]he record reflects both Mother and Father have a divisive relationship and fail to

communicate effectively. The record reflects over 4,500 text messages, calls, and emails from

Mother to Father where she regularly and frequently requests changes to the schedule. Further,

both parties think the other is a bad influence on Child.

Because the Court of Appeals reversed custody, it remanded issues of child support and attorney’s fees.

Judge McDonald, in a concurrence, urged the Supreme Court to reexamine its holding in Scott, noting:

[I]t is time for our supreme court to reconsider this language disfavoring joint custody—along

with any requirement that our family courts find “exceptional circumstances” to justify joint

custody awards—to alleviate any concerns our family courts may have regarding the

circumstances in which they may award “joint or divided custody” pursuant to the legislature’s

grant of jurisdiction in § 63-3-530(A)(42).

I believe Judge McDonald’s analysis is correct and that the Supreme Court errs in continuing to disfavor

joint custody. As her concurrence notes, the legislature enacted S.C. Code § 63-3-530(A)(42) in 1996 to

give the family courts jurisdiction “to order joint or divided custody where the court finds it is in the best

interests of the child.” At the time it did so, Supreme Court decisions disfavored joint custody but this

subsection did not. Further, her concurrence notes, “language suggesting ‘divided custody is usually

harmful’ or requiring a finding of ‘exceptional circumstances’ appears incongruous with Section 63-5-

30 of the South Carolina Code, which provides:”

The mother and father are the joint natural guardians of their minor children and are equally

charged with the welfare and education of their minor children and the care and management

of the estates of their minor children; and the mother and father have equal power, rights, and

duties, and neither parent has any right paramount to the right of the other concerning the

custody of the minor or the control of the services or the earnings of the minor or any other

matter affecting the minor. Each parent, whether the custodial or noncustodial parent of the

child, has equal access and the same right to obtain all educational records and medical records

of their minor children and the right to participate in their children’s school activities unless

prohibited by order of the court. Neither parent shall forcibly take a child from the guardianship

of the parent legally entitled to custody of the child.

Parenting Coordination

Jenny Stevens

UPDATE ON PARENTING COORDINATION IN

FAMILY COURT

by Jenny R. Stevens

In the Best Interest of the Child: 2020 Annual Guardian ad Litem

Training & Update CLE

The Stevens Firm, P.A. - Family Law Center 349 East Main Street, Suite 200,

Spartanburg, SC 29302 www.SCFamilyLaw.com

Jenny@SCFamilyLaw.com :: (864) 598-9172

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Table of Contents

Introduction ....................................................................................... 3What is Parenting Coordination? ........................................................ 3Guidelines for the Practice of Parenting Coordination ........................ 5Qualifications Recommended for Parenting Coordinators .................. 6

General Competency Qualifications ................................................................................................... 6Other Recommended Qualifications and Requirements for Those Serving as Parenting Coordinator ............................................................................................................................................. 7Parenting Coordinators shall not serve in dual sequential roles for the same family. ................ 8

Parenting Coordination in South Carolina ........................................... 9Has South Carolina adopted legislation or guidelines for use in Family Court matters? .......... 9

Benefits to Using Parenting Coordination Services in High-Conflict Child Custody Cases .......................................................................... 10Possible Negative Considerations for Judges .................................... 12How to Work with a Parenting Coordinator as the Guardian ad Litem

........................................................................................................ 13Options for South Carolina Family Law Professionals ........................ 14Helpful Resources ............................................................................ 16

Helpful Websites: ................................................................................................................................. 16

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Introduction

It’s a universal truth in family law that “high-conflict” child custody cases are some of the most difficult cases the family court is tasked with deciding. In fact, many family court practitioners and judges, when recalling some of the cases that still keep them awake at night, will immediately recall a high-conflict custody case where they wished they could’ve done more, or worry that the “right” decision might not have been handed down in the end. As most family law attorneys know, a high number of our modification cases are the result of a high-conflict case that still needs work to give the family a more settled solution.

Family court judges today have several resources at their disposal that maybe weren’t so common when the family court first came into existence, for example, a judge can appoint a Guardian ad Litem to help investigate the case for the Court from a neutral stand-point and ultimately, advocate for the children’s best interests. The more mainstream acceptance of mental health care has made court-ordered therapeutic intervention much more acceptable and effective in many cases in recent years. Additionally, the forensic evaluations which are now more readily available to family court litigants to “prove” the psychological strengths and weaknesses which may enhance or hinder a litigant’s ability to be a “good” parent or co-parent have made the “he said, she said” aspect of family court evidence a bit more clear. There is another resource, specifically the appointment and use of Parenting Coordinators, which has become popular in many areas of the country and may offer another solution to the toughest cases in our South Carolina family courts.

What is Parenting Coordination?

In high-conflict child custody cases, parenting coordination is a form of ADR that is typically court-ordered but can also be agreed upon by parents who are going through a high-conflict separation or who have previously been divorced. This type of service is routinely seen in cases which have a long history of litigation between the parents or in which one or both parties have difficulty adhering to parenting plans or complying with previous child-related court

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orders. The primary focus of this type of service is to help the parents learn and to coach the parents in adopting parenting and cooperation habits which keep the focus on the best interests of their children. The main goals of parenting coordination according to the American Psychological Association1 are:

• To encourage a continuous focus on children’s best interests by working with high-conflict parents to assist in decision-making;

• To help parents implement and comply with court orders and/or parenting plans;

• To help parents make timely decisions in a manner consistent with children’s developmental and psychological needs;

• To reduce the amount of damaging conflict between caretaking adults to which children are exposed;

• And to diminish the pattern of unnecessary re-litigation about child-related issues.

Parenting coordination services can be ordered during the initial child custody case, but it is more typically seen as part of the Final Order as a way for the parents to have a pre-litigation intervention method when problems arise, without the need for immediate involvement of attorneys or the family court. It may also be used for parents who have a documented history of failed mediations over child-related issues as a way of avoiding further litigation. Parenting coordination typically uses a form of arbitration as the central component, when allowed by state law, local rules, or when ordered by the family court, but it is not generally a “confidential process.” The person designated as the PC may be authorized by court order to speak with any other professionals involved with the family and/or the Court in order to best facilitate healthy outcomes for the family or to keep the Family Court informed of the parents’ progress with their parenting post-decree.

1 See “Definition of Parenting Coordination” located at: https://www.apa.org/practice/guidelines/parenting-coordination

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Guidelines for the Practice of Parenting Coordination

The American Psychological Association (APA) has published Guidelines for the Practice of Parenting Coordination2 which further defines the role of the Parenting Coordinator and describes how the PC’s role is different from that of a traditional psychologist working with family court litigants. Specifically, a person appointed as a PC requires more specialized knowledge and training to include “mediation and arbitration skills, familiarity with relevant legal contexts, and experience in assisting parenting with high-conflict.” The Guidelines offer best practices for anyone offering these services, but each state may have its own laws, court rules, or local rules which govern these services.

The Association of Family and Conciliation Courts (AFCC) has also published its own Guidelines for Parenting Coordination3 which provides a much more detailed outline for jurisdictions and practitioners about how to implement and maintain a parenting coordination program. Specifically, the AFCC guidelines open with the following:

“Parenting coordination is for coparents who are unable or unwilling to jointly make parenting decisions, communicate effectively, comply with parenting agreements, and order or shield their children from the impact of parental conflict. A PC makes recommendations and, if authorized, legally binding decisions for coparents and may report to the court; therefore, a PC should be appointed by and accountable to the court. Both coparents may agree to participate in the parenting coordination process, and in some jurisdictions this agreement may be implemented without a court order. However, a court order is prudent in these cases. The authority inherent in the role of a PC is substantial whether stipulated by coparents or ordered by the court. Therefore, it is important that any jurisdiction implementing parenting coordination adopt and adhere to a set of guidelines for parenting coordination practice and programs.” (page 2)

The Guidelines go on to stress that parenting coordination programs are not

2SeeGuidelinesforthePracticeofParentingCoordinationat“PurposeofGuidelines”3SeeAFCCGuidelinesforParentingCoordination

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ideal for all high-conflict cases and may be entirely inappropriate for cases which have elements of domestic abuse, whether physical or emotional, or where one or both parties have exhibited patterns of violence, threat of violence, intimidation, and/or coercive control over the other co-parent. Both sets of guidelines for parenting coordination recommend including screening procedures for Intimate Partner Violence prior to a PC agreement or order being issued.

Qualifications Recommended for Parenting Coordinators

General Competency Qualifications

The general competency qualifications for a PC are as follows:

1. Shall be a licensed mental health or family law professional, or a certified, qualified or regulated family mediator, under the rules or laws of their jurisdiction. Should also have extensive practical professional experience with family case involving high-conflict co-parenting dynamics.

2. Should have training and experience in family mediation. 3. Shall have training in the parenting coordination process, family dynamics

in separation and divorce, dynamics related to parents who were never married to each other, child development, parenting coordination methods and techniques, court specific parenting coordination procedures, family law as it pertains to the parenting coordination process, intimate partner violence, child maltreatment and other safety issues relevant to the parenting coordination process, ethical considerations pertaining to the parenting coordination process, co-parenting relationships, and the use of technology within the parenting coordination process.

4. Shall have training in decision-making processes. 5. Shall maintain professional competence in the parenting coordination

process and shall regularly participate in educational activities promoting professional growth.

6. Shall be familiar with the laws governing parenting coordination practice in their jurisdiction, if any, and shall comply with those laws.

7. Shall decline an appointment, withdraw, or request appropriate assistance

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when the facts and circumstances of the case are beyond a PC’s skills or expertise, or personal circumstances exist that compromise a PC’s ability to perform their role.

8. May participate in collegial or peer consultation or mentoring to receive feedback and support on cases, as needed, subject to confidentiality requirements.

9. Shall obtain continuing education for diversity awareness to ensure they are providing responsive and competent services, taking into consideration core cultural identities such as race, ethnicity, religion, gender, sexual orientation, and socioeconomic status, etc. and shall be aware of diverse nuances of specific family structures, such as same gender co-parents, blended families, and extended family caregivers.

Other Recommended Qualifications and Requirements for Those Serving as Parenting Coordinator

The Guidelines further highlight the importance of impartiality on the part of the PC, even though the PC is not necessarily a “neutral” when offering recommendations or making the ultimate decisions which will certainly impact the best interests of the children.

PC’s should also fully explain to the parties the limitations on confidentiality in the parenting coordination process and clearly denote that the PC shall report all suspected child abuse or neglect to the appropriate local and/or state authorities, especially if the jurisdiction’s laws designate parenting coordinators as “mandatory reporters.”

PC’s, and/or the Family Court should be sure to fully educate the participants on the parenting coordination process to ensure informed consent to the process, especially given the ADR goals of the process and the fact that the parties may be legally bound to the decisions reached by the PC.

PC’s should disclose and/or the Family Court should set and explain the basis for any fees and charges that are to be billed and payable by the parties. There should always be a written fee agreement, along with a provision within the court

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order, which describe in detail the allocation of fees between the parties; that only actual time expended by the PC shall be billed to the parties; and the methods and schedules of payments that will be required. The PC shall be responsible for maintaining accurate billing records to support all charges billed to the parties. Typical activities billed by PCs include:

• Interviews with parents, children, and any collateral sources of information; • Preparation of agreements and/or parenting plans; • Correspondence; • Decisions and Reports drafted for the parents, the Court, or any other family

court professionals involved with the matter; • Review of records; • Telephone and electronic communications; • Travel time to case-related appointments or court hearings; • Court preparation and appearances at hearings, depositions, and other

court mandated meetings, etc.

Parenting Coordinators shall not serve in dual sequential roles for the same family.

In order to avoid any professional conflicts in a case, the parenting coordinator should not be appointed or expected to serve in any dual roles for the same family in the same case. For example, the person appointed as the parenting coordinator should not also be:

• A child’s attorney, a Guardian ad Litem for the child, or any other type of advocate for the child;

• A mediator or custody evaluator, even with consent of the parties, because of the differences in the roles and potential negative impact of any role changes throughout the case;

• Additionally, a parenting coordinator should not become a custody evaluator during the course of or following the term of the PC’s involvement with the family;

• The PC shall not be appointed or serve in another mental health role to any family member.

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• The PC shall not become one client’s lawyer, either during or after the term of the PC’s involvement, nor shall one client’s lawyer become the PC in that client’s case.

Parenting Coordination in South Carolina

Has South Carolina adopted legislation or guidelines for use in Family Court matters? No. Currently South Carolina has not adopted its own statute or guidelines governing Parenting Coordinators, but several other states have, including our neighbor to the north, North Carolina.

North Carolina’s relevant statute requires the following:

“To be eligible to be included on the district court’s list of parenting coordinators, a person must meet all of the following requirements:

a. Hold a masters or doctorate degree in psychology, law, social work, counseling, medicine, or a related subject area.

b. Have at least five years related professional post-degree experience.

c. Hold a current license in the parenting coordinator’s area of practice, if applicable.

d. Participate in 24 hours of training in topics related to the development stages of children, the dynamics of high-conflict families, the stages and effects of divorce, problem solving techniques, mediation, and legal issues.

In order to remain eligible as a parenting coordinator, the person must also attend parenting coordinator seminars that provide continuing education, group discussion, and peer review and support.”4

Given there are professionals within South Carolina who are currently advertising “parenting coordination” services on their websites and marketing

4SeeNCGeneralStatutes-Chapter50Article5

© 2020 by Jenny R. Stevens. All rights reserved. In the Best Interest of the Child: 2020 GAL Training & Update CLE

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those services to divorcing parents, family law attorneys, family court judges, and other family court professionals, now may be a good time for all interested parties to explore new legislation in this area for South Carolina. The AFCC website has several statutes from other states and samples of court orders used throughout the process of parenting coordination which could serve as templates for our family court professionals to outline and design our own legislation to govern these services in a way which ensures consistent parameters, rules, and expectations during the term of appointment.

Benefits to Using Parenting Coordination Services in High-Conflict Child Custody Cases

The ultimate benefit to both the family court and the co-parents involved in high-conflict custody cases is to assist in reducing harmful conflict and keeping the focus of the parties consistently on the best interests of the minor children. Currently, in South Carolina family court cases, Judges tend to appoint a Guardian ad Litem to investigate the extent of the parental conflict and how it may or may not be affecting the minor children and will use the GAL’s report and testimony to craft a child custody order which (hopefully) will define and enforce the parental responsibilities and conduct.

While this is certainly a necessary step, especially if there is significant doubt in the judge’s mind that the parents are able to agree on child-related issues, since parenting coordination is not currently a regulated service available to many family court litigants, the Guardian tends to be forced into the role of “referee” between the parents (or the parents’ attorneys) when disputes arise – not the intended role they are statutorily required to fill. When acting in this unintended, but critical, role many Guardians are forced to spend time defending themselves against accusations of “bias” for or against one parent, when really all they have done is offered advice and advocated for what would be best for the children.

A properly appointed and empowered parenting coordinator can serve the family court as an “assessor” by reviewing large amounts of collateral information

© 2020 by Jenny R. Stevens. All rights reserved. In the Best Interest of the Child: 2020 GAL Training & Update CLE

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and discussing recommendations from various service providers for the family members to be able to analyze impasses and issues with which the co-parents are struggling. While a GAL is not empowered to “make decisions” when the parents cannot, the PC is typically given this authority, which can help overcome roadblocks without the need for lengthy attorney correspondence or further litigation to resolve disagreements over parenting decisions.

A well-trained and highly qualified PC will serve as a valuable educational resource for the parents, but also for extended family members whom the PC may invite into the coordination process. Whereas the GAL is limited with the types of recommendations s/he can make for the parties and may or may not have formal psychological training, the PC is typically a professional with a psychological degree or extensive psychological training and can bring that expertise to the table when making specific recommendations about what is best for the child’s development, how to deal with the effects of divorce, and the impact the child’s behavior may have on the parents, family communication, and problem solving skills (or lack thereof) within the family.

There are several other benefits such as:5 • Spending less time in a courtroom to litigate every disagreement; • Reducing the amount of conflict the parents and children experience

as they work with the Coordinator to learn ways to deal with conflict quickly, efficiently and in healthy ways; and

• Allowing the parents to have more time to focus on their children since the communication involving the other parent or involving parenting decision is typically restrained to times when the parenting coordinator is present, parents can focus their parenting time on their children, instead of engaging in the negative back-and-forth that may exist without intervention.

5 SeeOurFamilyWizardblogarticle:https://www.ourfamilywizard.com/blog/five-reasons-work-parenting-coordinator

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Possible Negative Considerations for Judges There seem to be many positive outcomes to parenting coordination, but it goes without saying that in family law it’s difficult to “have your cake and eat it, too.” One of the most referenced downsides to parenting coordination in the states which have adopted this process is the potential financial cost to the parties. The PC is typically a highly educated, well-trained professional who will charge for their services by the hour at rates which range from $75-$200/hour. Some PCs will charge “per session” but put limits on how long each “session” may extend. Some PCs have different, often higher, hourly rates for preparing for court appearances, attending court hearings, or “emergency” meetings that occur outside of regular office hours. Some parents need intensive intervention which will necessarily require more time from the PC, and therefore, ends up being far more costly for the parties. When considering this process is usually put into place during a high-conflict child custody case or immediately after the high-conflict child custody case has concluded as a post-decree ADR method of managing compliance with the Final Order, any additional costs to the parents may be prohibitive. Another consideration, especially since South Carolina currently does not have any statutes or court rules governing the practice of parenting coordination, is proper accountability and a true measure of competence of the professional offering such services to family court litigants. Just as with ‘rogue’ Guardians ad Litem, inexperienced child custody evaluators, and family therapists who choose to cross the professional boundaries of their role, parenting coordinators can create more chaos when they aren’t properly trained and are not adequately managed by the Orders appointing them to a case. And lastly, there is always a legitimate concern, as with any other ADR process which grants a non-judge the authority to make legally binding decisions for litigants, that judicial discretion will be improperly designated to an entity who should not have such authority. The Family Court has been granted specific jurisdiction to decide contested issues arising from disputes involving the parenting of children and that authority should not be delegated to any individual

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outside of our duly elected judges without just cause and very careful consideration of all involved.

How to Work with a Parenting Coordinator as the Guardian ad Litem

One of the misconceptions may litigants have is that these roles are interchangeable. A quick review of the guidelines for parenting coordinators makes it clear that they are separate and distinct roles, and in most success cases, the two individuals appointed to these roles enjoy a cooperative working relationship to best meet the needs of the parents and children involved. The Guardian can best help the parenting coordinator by providing copies of the pleadings, copies of reports filed by the Guardian (whether or not they have been filed with the Court), and assisting with familial background information. Typically a parenting coordinator is not appointed as early as the Guardian ad Litem, so there may be extensive background information the GAL has put together as part of his or her investigation that the parenting coordinator can use to quickly get up-to-speed, or even to test the veracity of the information coming directly from the parents and/or children. While the Guardian should not be the “director” of the parenting coordinator’s case plan, he or she should stay in contact with the coordinator in order to ascertain for the Court the progress of the family as the case moves forward. Most judges will expect an update at subsequent hearings on how the coordination efforts are going; if they are fruitful; if the parents are cooperating with the process; and what issues have been resolved through those efforts. Remember, this is not an inexpensive process to order for a family to use, therefore the Court will want to ensure that the efforts and expense is warranted. Since the Parenting Coordinator is not a legal professional and will not be a party to the action, the Guardian will most often be the proper person to present these updates to the Court.

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The parenting coordinator may also have suggestions for the Court about what to include in future Orders regarding the parents and/or the children. The Guardian should request these suggestions from the parenting coordinator before any hearing which deals with child-related issues and include them with his or her report to the Court during the hearing. If parenting coordination efforts fail during the course of the case, the Guardian should be prepared to call the Parenting Coordinator as a witness at trial and may need to seek the Court’s permission to do so, since his or her attendance will be an additional litigation expense for the parties. The GAL will also likely need to request an Order for the parties to compensate the Coordinator for his or her time to prepare for and his or her attendance at trial.

Options for South Carolina Family Law Professionals Parenting Coordination is certainly not appropriate for every child custody case, but given the trends locally and across the state towards more high-conflict custody cases, precious family court docket time is being used to litigate many of the day-to-day issues and parenting decisions which might better be handled by a parenting coordinator. Designating one professional who has the ability to gather and analyze far more information than any family court judge could possibly take in during a Motion Hearing in order to determine how to properly decide the issues could have long-term benefits for the families who find themselves dealing with these cases. The one-on-one educational and coaching benefits a parenting coordinator could bring to these families, as well, cannot be ignored, and maybe the most important variable that has been shown to lessen future litigation in states that currently use a parenting coordination model. Family court professionals and judges should consider coming together to discuss proposing legislation or beginning pilot programs to introduce the use of parenting coordination programs in our family courts. This obviously will necessitate the development of our own state guidelines for the qualifications of those who will be appointed as parenting coordinators, but given the extensive materials designed by both the A.P.A and

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AFCC, it is possible to adopt these as preliminary guidelines for pilot programs in order to study the effects and benefits for South Carolina families and South Carolina family court dockets. This will add another much-needed and creative resource to the toolbox of family court judges and attorneys which may lessen the negative effects of endless litigation for high-conflict families.

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Helpful Resources

Helpful Websites:

APA Guidelines for the Practice of Parenting Coordination (https://www.apa.org/practice/guidelines/parenting-coordination)

AFCC Guidelines for Parenting Coordination (https://www.afccnet.org/)

The AFCC website has several resources for both professionals and families describing the parenting coordination and offers several examples of forms and orders used by parenting coordinators in other states.

National Survey of Parenting Coordination Legislation (http://onlineparentingcoordinators.com/pg5.cfm)

Substance Use testing in Family Court

Michelle Bens Clare Marie-Louise Ramsdale

1/27/2020

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ALCOHOL AND DRUG TESTING

MICHELLE BENS CLARE, DO, MPH

MARIE-LOUISE RAMSDALE, JD

TODAY WE WILL:

•Discuss types of drug and alcohol testing

•Learn time frames for elimination of substances

•Show some of the many ways to beat the system

•Discuss how samples are collected and interpreted

•Make some recommendations for testing protocols

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CLIENT 1—ALICE

• 35 yo white female• Mother of 3 boys, ages 2, 7, and 8• Occasional daydrinker• Medications—Adderal, Wellbutrin, Synthroid• Heated custody battle, yesterday boys were dropped off and she

was allegedly slurring her words• Emergency hearing in the morning• She says she hasn’t been drinking in a month and takes her

medications as prescribed• How will we find out what she is taking?

CLIENT 2—BILL

•55 year old white male

•Fighting with his brother for control of the family lumber business

•History of methamephetamine and cocaine use, but swears he’s been clean for 6 months

•His brother would like him declared unfit for executive decisions

•What kind of testing could clear our client?

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CLIENT 3--JEN

• 42 female surgeon

• Has prescriptions for adderal, xanax

• Urine drug screen at work is positive for amphetamines and benzos

• She says she is taking her medications as prescribed and only uses the xanax when she has to fly

• There is a rumor she has been using street methamphetamine to stay awake during surgery

• How can we know if she is taking her medications as prescribed? Could she be buying them on the street or stealing them?

TYPES OF TESTING

•Urine

•Hair

•Nails

•Blood

•Sputum

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URINE TESTING

Drop at an appropriate facility• Urine is monitored for pH, temperature, and adulterants• Can be observed or not• Toilet should have blue dye in it to prevent adulterants and

dilution, and sink should be: not present or non-functional• Client should not flush after giving sample

URINE SAMPLES

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TAMPER SEALS

TOILET SINK

URINE TESTING--MARIJUANA

Urine Detection Times

Single Use 3 daysModerate use (4x/week) 5-7 daysDaily Use 10-15 daysHeavy Use >30 days

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URINE--DRUG DETECTION TIMES

Alcohol 1-12 hoursShort-acting Barbiturates 2 daysLong-acting Barbiturates 1-3 weeksAmphetamines 1-2 daysMethamphetamine 1-2 daysMDMA (ecstasy) 1-2 daysCocaine 2-4 daysShort-acting Benzodiazepines 3 daysLong-acting Benzodiazepines 30 daysPCP 8 days, up to 30 days

*these times are averages, all cases may vary based on use, metabolism, underlying medical conditions, or body habitus

POP QUIZ

WHAT’S THE DIFFERENCE BETWEEN AN OPIATE AND AN OPIOID?

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THE DIFFERENCE BETWEEN OPIATES AND OPIOIDS

• Opiates are plant based, from poppies• Morphine

• Codeine

• Heroin

• Opioids are manufactured• Oxycontin

• Fentanyl

• Hydrocodone

• Buprenorphine (Suboxone) combo drug with Naloxone

URINE DETECTION TIMES—OPIATES AND OPIOIDS

Codeine (opiates) 2 daysHeroin 48 hoursMorphine 48-72 hours

Methadone 3 days (can be up to weeks in high usage)

*again, detection times vary

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PROS AND CONS OF URINE TESTING

Pros of urine testing•Easy to obtain, cheap

Cons of urine testing•Synthetic urine (undetectable by many labs) or another person’s.

A. Synthetic urine is available online. It can be reconstituted and then kept at body temp until test time.

B. Often undetectable. C. For observed collections need same gender

•The Whizzinator can be used to cheat at observed testing. Available online.

DEFEATING THE TEST

• Multiple websites to help clients defeat tests www.nevergetbusted.com, www.vice.com, etc.

• The Whizzinator

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THE WHIZZATOR

POP QUIZ

•What else can you use a shot glass for besides alcohol?

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• Fill with synthetic or bought urine, cover with plastic wrap and insert. Slit a hole in the wrap during testing.

POP QUIZ

WILL YOUR URINE BE POSITIVE FOR THC(MARIJUANA) IF YOU USE CBD OIL?

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HAIR TESTING

Typically tests for amphetamines, methamphetamine, ecstasy, marijuana, cocaine, PCP, opiates (codeine, morphine, heroin), expanded opioid panel (fentanyl, buprenorphine, methadone, tramadol), alcohol (EtG, EtS)

Additional specialized testing panels are available upon request, below is a list of commonly requested testing panels.•Alcohol•Poisons & Toxins•Heavy Metals•Date Rape•Tricyclic Antidepressants

HAIR TESTING

• Need an inch and a half of hair• Body hair may have a longer window of

detection (30-365 days)

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PROS AND CONS OF HAIR TESTING

Pros of hair testing

•Window of results is longer — about a 90 day time period•More difficult to cheat

Cons of hair testing

•Detection times are longer — takes up to 2 weeks after use to show up •Does not reliably pick up many benzodiazepines•Some drugs are easily removed by bleaching/alteration. THC is hardest to remove •Can use hair extensions, wigs to fool results. Not everyone has enough hair. •More expensive

BLOOD TESTING PROS AND CONS

Pros of blood testing

•Good for testing if person is suspected to be immediately under influence.•Drugs can be tested for within hours of ingestion. •Most reliable for current alcohol levels •Nearly impossible to cheat, may test for very comprehensive panels of drugs and toxins

Cons of blood testing

•Brief detection window. •Often least effective as far as detecting remote use…for example will only detect Valium for several days whereas urine can detect up to month or more

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NAIL TESTING PROS AND CONS

Pro of nail testing

•Long detection time: 3-6 months

Cons of nail testing

•Like hair, delayed detection post ingestion 1-2 weeks. •Can detect environmental exposure vs actual ingestion, so may not know if results are valid (e.g. hand sanitizer positive for alcohol) •People may not have enough nail (need 100 mg). Acrylic nails can affect testing •Single use may be missed or not detectable

SALIVA TESTING

•Drugs detectable typically 5-48 hours. •Oral consumption of fluid, food, or other substances can affect results. •Not typically recognized as reliable as urine or hair•Easily defeated

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FINAL THOUGHTS

RECOGNIZE WHAT YOU ARE TESTING FOR: If unsure, contact the lab!

For example:Opiates: Standard opiate test will recognize codeine, percocet, oxycontin, morphine, and/or dilaudid. Will need expanded opioid panel or specific testing for methadone, suboxone, fentanyl, or tramadol

Amphetamines will be positive for: Vyvanse, Adderall

Ritalin (methylphenidate) requires a specific test, as do some other ADHD drugs.

ALCOHOL TESTING

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THE ALPHABET SOUP OF ALCOHOL TESTING

• ETG• ETS• Peth• %CDT• %dCDT• GGT• Gamma%CDT

ETG—ETHYL GLUCURONIDE

Can be obtained from urine, hair, or fingernail samples

• Urine EtG detects use of alcohol for 24 hrs after 1-2 alcoholic beverages, and up to 2-4 days after heavier use

• Hair EtG detects use of alcohol for the 7 to 90 days prior to testing

• Fingernail EtG detects use of alcohol for up to 90 days prior to testing, detectable about 1 week after use • Toenails superior to fingernails

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ETG—ETHYL GLUCURONIDE

• Hair and nails can be influenced by mouthwash, hand sanitizer and other environmental ethanol

• Dilution by drinking water and/or eating can dramatically reduce the level, and the creatinine in urine will still be normal

• EtG should not be used as the only determinant of alcohol use because it can be corrupted by environmental alcohol, but it is reasonable as an abstinence monitoring tool

• EtG level weakly correlates with initial alcohol concentration, lots of false negatives

ETS—ETHYL SULFATE

• Direct ethanol metabolite representing recent alcohol consumption

• Window similar to ETG, but different pathways between the markers in formation and degradation

• Best if used conjointly with ETG for increased sensitivity since some people will be positive for one or the other

• Timeframe of detection similar to ETG = several days

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PETH--PHOSPHATIDYLETHANOL

Obtained from a blood sample

• Detects use of alcohol for 2-3 weeks prior to testing, detectable for up to 2 weeks after abstinence

• Used to differentiate social drinking from alcohol abuse, can be corrupted with hand sanitizer, mouthwash

• Has potential, but further study is needed

• Negative results do correspond to abstinence or light drinking

• Positive results cannot be correlated to rate and level of consumption

WHAT IS HEAVY DRINKING?

•4-6 drinks/day• 1 bottle of wine• ½ pint (8 oz) hard liquor• 5 cans of beer

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WHAT IS THE DIFFERENCE BETWEEN SENSITIVITY AND SPECIFICITY?

• Sensitivity—percentage of true positives • Perfect predictor would be 100%, or all sick individuals are

identified• Ruling out a disease if a person is negative• SNout = Sensitivity high, negative result, rule out

• Specificity—percentage of true negatives• How well a test identifies persons without a disease• Perfect predictor would be 100% of persons without a disease• SPin = Specificity high, positive result, rule in

DIFFERENCE BETWEEN CDT AND DCDT

• CDT looks at the carbohydrate side chains of transferrin (which transfers iron from the intestine to the cells and organs). When someone drinks too much alcohol, the liver cells don’t make transferrin in the normal way and the molecule become deficient in carbohydrates.

• DCDT is the most reproducible isomer of the alcohol biomarker CDT

• DCDT is one of 3 isomers of CDT. Cutoff is different than CDT for a positive result.

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%CDT—CARBOHYDRATE-DEFICIENT TRANSFERRIN

Obtained from a blood sample

• Detects excessive use of alcohol

• Can remain elevated for 2 to 6 weeks after stopping drinking.

• Best used as a serial test for changes in alcohol consumption. Need a baseline level

• Can be elevated in other disease states like hepatitis C, certain genetic diseases

• Poor sensitivity, but more specific than GGT

• Best used to look for relapse

%DCDT—DISIALO CARBOHYDRATE-DEFICIENT TRANSFERRIN

—Obtained from a blood sample

• The CDT isoform most specific for heavy alcohol use

• Also detects excessive use of alcohol (5 or more drinks/day) during the previous 2 weeks and can remain elevated for 2 to 6 weeks after stopping drinking

• Chronic heavy drinking sensitivity of 60-80%

• Men more sensitive than women

• Look for a 30% decrease in the baseline level to indicate refraining from alcohol. Similarly if it goes up after a normal baseline, that could indicate binge drinking or a return to heavy use

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GGT-GAMMA-GLUTAMYLTRANSFERASE

—Obtained from a blood sample

• Good for heavy chronic drinking

• Can increase due to illness, obesity, medications (hormones, anticonvulsants)

• Should be used with %dCDT to get a clearer picture of alcohol use (i.e., if GGT is elevated, but not CDT, the person might have a disease state or take medications that elevate the GGT, not alcohol use)

GAMMA%CDT

• Coming soon, combines GGT and CDT• Shows less dependence on the liver health • Research shows more sensitive, but not yet ready for

primetime

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COMMON HOUSEHOLD ITEMS THAT CONTAIN ALCOHOL

• Mouth wash• Hand sanitizer• Breath strips• Cough syrup• Nyquil• Rubbing alcohol• Perfume/cologne• Aftershave, mousse, hairspray, some body washes (check the ingredients)• Bug spray• Skin astringents• Nail polish remover• Inhalers• Anti-bacterial soap

COMMON FOODS THAT CONTAIN ALCOHOL

• Kombucha• Vanilla and other flavored extracts• Wine is not cooked all the way off in food• Truffles• Grandma’s Rum Cake• Non-alcoholic beer• Burger rolls• Rye bread• Bananas (the riper, the more alcohol)• Pear• Cherry yogurt• Soy sauce• White wine vinegar• Some fruit juice (apple, orange, and grape)• Honeybuns• Hot sauce• Sugarless gum• Energy drinks

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WHAT’S ON THE PANEL?

5 PANEL URINE TESTTHC

OPIATES

PCP

COCAINE

AMPHETAMINES

10 PANEL URINE TEST

—5 PANEL PLUS

BENZODIAZEPINES

BARBITURATES

METHADONE

PROPOXYPHENE

QUAALUDES

*CAN VARY BY LAB

HOW SAMPLES ARE OBTAINED

•Court ordered v. Voluntary• Voluntary doesn’t always follow chain of custody

•Unobserved v. Observed • Labs• Doctor’s Offices• Emergency Departments—never observed

•Chain of Custody

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PROCESS OF VERIFICATION—CHAIN OF CUSTODY• Observed or unobserved, sometimes filmed (usually only at

methadone/drug clinics)

• Form is filled out and government ID shown

• Sealed in front of client and the client initials the seal

• Sealed again in a bag that the collector initials

• Samples held for a year, but private labs could be different, so call the lab

• GCMS or LCMS verified

• Chain of custody labs are required to keep positive samples for 1 year (DOT requirement)

• Records are stored for a minimum of 2 years

SAMPLE VERIFICATION

• Initial screening sample is an immunoassay, ELISA, easily corrupted, high rate of false positives

• Know whether your sample is GCMS/LCMS (gas chromatography mass spectrometry/liquid chromatography mass spectrometry) verified

• Labs will use one or the other, they are interchangeable

• GCMS/LCMS read the chemical signature of the substance, so it can’t be fooled

• LCMSMS means they ran it twice in tandem (triple/quadruple)

• Very sensitive

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SO WHAT SHOULD WE ORDER FOR OUR CLIENTS?

• Know what you’re testing for

• Know what type of testing you need

• If the test doesn’t have numbers, i.e. the amphetamine level is 594, it is likely a screen and not GCMS/LCMS verified

• Call the lab with questions

• Be mindful of drug use trends in your area

REFERENCES

• American Society of Addiction Medicine (ASAM) www.asam.org• Consensus statement—

https://www.asam.org/docs/default-source/quality-

science/appropriate_use_of_drug_testing_in_clinical-1-(7).pdf?sfvrsn=2

Appropriate Use of Drug Testing in Clinical Addiction Medicine

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CLIENT 1—ALICE

• 35 yo white female• Mother of 3 boys, ages 2, 7, and 8• Occasional daydrinker• Medications—Adderal, Wellbutrin, Synthroid• Heated custody battle, yesterday boys were dropped off and she

was allegedly slurring her words• Emergency hearing in the morning• She says she hasn’t been drinking in a month and takes her

medications as prescribed• How will we find out what she is taking?

ALICE

• Immediate urine testing

•Hair testing with full panel

•Make sure it is GCMS/LCMS verified and donated in chain of custody

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CLIENT 2—BILL

•55 year old white male

•Fighting with his brother for control of the family lumbar business

•History of methamphetamine and cocaine use, but swears he’s been clean for 6 months

•His brother would like him declared unfit for executive decisions

•What kind of testing could clear our client?

BILL

•Nail testing would give 6 month window

•Hair could help as well

•Best if both were negative

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CLIENT 3--JEN

• 42 year old female surgeon

• Has prescriptions for adderal, xanax

• Urine drug screen at work is positive for amphetamines and benzos

• She says she is taking her medications as prescribed and only uses the xanax when she has to fly

• There is a rumor she has been using street methamphetamine to stay awake during surgery

• How can we know if she is taking her medications as prescribed? Could she be buying them on the street or stealing them?

HOW DO WE KNOW WHAT SHE TOOK?

• The most commonly used urine drug testing approach involves automated immunoassay (IA) either alone as a point-of-care test or as an initial screen for a 2-step testing procedure.

• Results from IA are qualitative (i.e., a drug or its metabolite is denoted either present or absent, without the quantity reported).

• You will get a yes/no answer

• Her urine was positive for amphetamines and benzos

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THE NEXT STEP– GET GCMS/LCMS CONFIRMATION

• In the 2-step approach

• Screening IA is followed by confirmatory gas chromatography-mass spectrometry (GC-MS)

• If any substances are positive on the initial IA, a separate quantity of the same sample is then subjected to GC-MS as a confirmatory test for those same substances, with negative results on the IA disregarded.

CAN WE USE GCMS LEVELS TO DETERMINE AMOUNT OF USAGE?

• In a word—No

• GC-MS provides a quantitative result, which can be used to follow serial samples and determine whether the metabolite concentration is rising or falling, which may suggest ongoing use or abstinence, respectively.

• Use caution, as levels may vary with • urine concentration • the amount of drug used• time since last use

• An absolute determination regarding whether use is ongoing is risky

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IS JEN ON STREET METH?

• Urine was positive for amphetamine, but negative for methamphetamine

• Methamphetamine metabolizes to amphetamine

• If methamphetamine is positive, you should always be positive for amphetamines

• If methamphetamine is negative, but amphetamine is positive, the client is taking Adderal or Vyvanse

IS JEN ON STREET METH?

• Adderal comes back as amphetamine.

• If you want to tell if the methamphetamine is street, some labs can do an isomer test to look (called methamphetamine d,l isomer test)

• Vicks inhaler causes a positive l methamphetamine isomer test

• d is street form or a prescription appetite suppressant

• In the test, if the d isomer more than 20%, the client is taking either street or prescription meth, not OTC

• Rx methamphetamines – desoxyn (adhd or narcolepsy or weight loss), didrex(benzphetamine)

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CONCLUSIONS FOR JEN

• Within reasonable certainty she is taking her adderal

• She is not taking street methamphetamines

• Her positive benzo level should be followed with serial testing, as she states she recently flew on a plane (and can prove it)

• Her level should not be used to tell if she is stealing or diverting it, only that yes, she has it in her system

PEARLS

•Again, there is no specific correlation between GCMS/LCMS levels and amount taken

•That said, it is likely when you get a snapshot, a positive screen indicates that person is a habitual user. But don’t bet the farm on it. Get serial testing.

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THANK YOU

Special thanks to Marie-Louise Ramsdale.

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Challenges Facing Guardians

MJ Goodwin

1

STATE OF SOUTH CAROLINA )

) IN THE FAMILY COURT

COUNTY OF {{case|182308}} )

{{case|182355}}, )

Plaintiff, ) ORDER TO APPOINT

) GUARDIAN AD LITEM

v. ) Case Number: {{case|182302}}

)

{{case|182356}}, )

Defendant. )

____________________________

JUDGE:

IN CHAMBERS

PLAINTIFF’S ATTORNEY:

DEFENDANT’S ATTORNEY:

GUARDIAN AD LITEM:

REPORTER: NONE

This matter is before the Court for **. Based on the contents of the Court file, and on the

motion of the Plaintiff’s attorney, and consistent with the laws of the State of South Carolina, the

Court finds and orders as follows:

1. This Court will likely not be fully informed about the facts of this case without the

appointment of a Guardian ad Litem, and there is a substantial dispute which necessitates the

appointment of a Guardian ad Litem. Therefore, M. J. Goodwin, 113 N. Main St., Anderson, SC

29621, 864-375-0909 is hereby appointed as Guardian ad Litem for the minor child(ren):

{{case|183249}}. The minor children are fully identified in the Confidential Reference List of

Redacted Identifiers, as provided for by Court Rules.

2. The responsibilities and duties of the Guardian ad Litem, appointed herein, shall be

governed by South Carolina Code of Laws, §63-3-801, et seq., as amended.

3. The Guardian ad Litem must not mediate, attempt to mediate, or act as a mediator in a

case to which she has been appointed. However, nothing in this section shall prohibit a Guardian

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ad Litem from participating in a mediation or a settlement conference with the consent of the

parties.

a. For services rendered, the Guardian ad Litem may bill the parties at a rate not to exceed

$200 per hour. The Guardian ad Litem’s fee cap is $15,000.00 absent further court order.

b. Plaintiff shall pay to the Guardian ad Litem an initial fee of $1500.00 and Defendant shall

pay $1500.00 within 30 days of the date of this Order. This order is without prejudice to the

reallocation of these fees at a final hearing.

c. The Guardian ad Litem shall submit an itemized billing statement of hours, expenses,

costs, and fees to the parties and their attorneys, periodically, throughout the pendency of the

litigation. The parties shall continue to pay any all fees over and above the initial deposit, up to

the amount of the cap set forth herein, as billed by the Guardian ad Litem, within 10 days of the

date of the billing. Each shall continue to pay any outstanding balance at the same ratio of the

initial deposit, unless otherwise ordered.

d. If the Guardian ad Litem determines that it is necessary to exceed the fee initially

authorized by the Court, the Guardian ad Litem may request a hearing on the issue of the cap, or

submit a Consent Order to the Court, if the parties agree to increase the same.

e. The Guardian ad Litem is entitled to reasonable compensation, subject to the review and

approval of the Court. In determining reasonableness of the fees and costs, the Court must take

into account:

i. the complexity of the issues before the Court;

ii. The contentiousness of the litigation;

iii. The time expended by the Guardian ad Litem;

iv. The expenses reasonably incurred by the Guardian ad Litem;

v. The financial ability of each party to pay fees and costs; and

vi. any of the factors the Court considers necessary.

f. All parties hereto shall cooperate with the Guardian ad Litem in obtaining any medical

records, school records, etc., and shall execute any documents necessary, including a HIPAA

release without limitation or restriction, for the Guardian ad Litem to complete a thorough

investigation.

g. Any school, teacher, counselor or doctor, who is provided a copy of this Order, shall

cooperate with the Guardian ad Litem, appointed herein, for the minor children,

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{{case|183249}}, and is hereby Ordered to release any records or information to her, in the same

manner that said individual, provider, or institution would provide the requested information to a

parent.

h. The Guardian ad Litem shall have access to the records of the South Carolina Department

of Social Services as to any party or minor child in this proceeding, except the name of the

reporter, as required by law. It is not necessary for the South Carolina Department of Social

Services to redact the dates of birth and Social Security numbers of the parties and minor

children, as the Guardian ad Litem is entitled to have that information.

IT IS SO ORDERED.

____________________________________________

***, Presiding Judge

Date

Anderson, South Carolina

I so move:

________________________

Moving party

I so consent:

________________________

Other party

________________________

Proposed GAL

How Guardians Help (or Hinder) DSS

Deanne Gray

HOW GUARDIANS CAN HELP (OR HINDER) DSS

January 31, 2020

RELEVANT STATUTES

SECTION 63-7-10. Purpose.

(A) Any intervention by the State into family life on behalf of children must be guided by law,

by strong philosophical underpinnings, and by sound professional standards for practice. Child

welfare services must be based on these principles:

(1) Parents have the primary responsibility for and are the primary resource for their children.

(2) Children should have the opportunity to grow up in a family unit if at all possible.

(3) State and community agencies have a responsibility to implement prevention programs aimed

at identifying high risk families and to provide supportive intervention to reduce occurrence of

maltreatment.

(4) Services for families should be accessible and designed to encourage and enable families to

adequately deal with their problems within their own family system.

(5) All child welfare intervention by the State has as its primary goal the welfare and safety of

the child.

(6) Child welfare intervention into a family's life should be structured so as to avoid a child's

entry into the protective service and foster care systems if at all possible.

(7) The state's child welfare system must be designed to be child-centered, family-focused,

community-based, and culturally competent in its prevention and protection efforts.

(8) Neighborhoods and communities are the primary source of opportunities and supports for

families and have a primary responsibility in assuring the safety and vitality of their members.

(9) The Department of Social Services shall collaborate with the community to identify, support,

and treat families in a nonthreatening manner, in both investigative and family assessment

situations.

(10) A family assessment approach, stressing the safety of the child, building on the strengths of

the family, and identifying and treating the family's needs is the appropriate approach for cases

not requiring law enforcement involvement or the removal of the child.

(11) Only a comparatively small percentage of current child abuse and neglect reports are

criminal in nature or will result in the removal of the child or alleged perpetrator.

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(12) Should removal of a child become necessary, the state's foster care system must be prepared

to provide timely and appropriate placements for children with relatives or in licensed foster care

settings and to establish a plan which reflects a commitment by the State to achieving

permanency for the child within reasonable timelines.

(13) The Department of Social Services staff who investigates serious child abuse and neglect

reports with law enforcement must be competent in law enforcement procedures, fact finding,

evidence gathering, and effective social intervention and assessment.

(14) Services should be identified quickly and should build on the strengths and resources of

families and communities.

(B) It is the purpose of this chapter to:

(1) acknowledge the different intervention needs of families;

(2) establish an effective system of services throughout the State to safeguard the well-being and

development of endangered children and to preserve and stabilize family life, whenever

appropriate;

(3) ensure permanency on a timely basis for children when removal from their homes is

necessary;

(4) establish fair and equitable procedures, compatible with due process of law to intervene in

family life with due regard to the safety and welfare of all family members; and

(5) establish an effective system of protection of children from injury and harm while living in

public and private residential agencies and institutions meant to serve them.

HISTORY: 2008 Act No. 361, Section 2.

SECTION 63-7-310. Persons required to report.

(A) The following persons must report in accordance with this section when, in such person's

professional capacity, he has received information that gives him reason to believe that a child

has been or may be abused or neglected as defined in Section 63-7-20: a physician, nurse,

dentist, optometrist, medical examiner, or coroner, or an employee of a county medical

examiner's or coroner's office, or any other medical, emergency medical services, mental health,

or allied health professional, member of the clergy including a Christian Science Practitioner or

religious healer, clerical or nonclerical religious counselor who charges for services, school

teacher, counselor, principal, assistant principal, school attendance officer, social or public

assistance worker, substance abuse treatment staff, or childcare worker in a childcare center or

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foster care facility, foster parent, police or law enforcement officer, juvenile justice worker,

undertaker, funeral home director or employee of a funeral home, persons responsible for

processing films, computer technician, judge, and a volunteer non-attorney guardian ad litem

serving on behalf of the South Carolina Guardian Ad Litem Program or on behalf of Richland

County CASA.

(B) If a person required to report pursuant to subsection (A) has received information in the

person's professional capacity which gives the person reason to believe that a child's physical or

mental health or welfare has been or may be adversely affected by acts or omissions that would

be child abuse or neglect if committed by a parent, guardian, or other person responsible for the

child's welfare, but the reporter believes that the act or omission was committed by a person

other than the parent, guardian, or other person responsible for the child's welfare, the reporter

must make a report to the appropriate law enforcement agency.

(C) A person, as provided in subsections (A) and (B), who reports child abuse or neglect to a

supervisor or person in charge of an institution, school, facility, or agency is not relieved of his

individual duty to report in accordance with this section. The duty to report is not superseded by

an internal investigation within the institution, school, facility, or agency.

(D) Except as provided in subsection (A), a person who has reason to believe that a child's

physical or mental health or welfare has been or may be adversely affected by abuse or neglect

may report, and is encouraged to report, in accordance with this section. A person, as provided in

subsection (A) or (B), who reports child abuse or neglect to a supervisor or person in charge of

an institution, school, facility, or agency is not relieved of his individual duty to report in

accordance with this section. The duty to report is not superseded by an internal investigation

within the institution, school, facility, or agency.

(E) Reports of child abuse or neglect may be made orally by telephone or otherwise to the county

department of social services or to a law enforcement agency in the county where the child

resides or is found.

(F) Nothing in this section shall be construed as requiring a person under the age of eighteen to

be a mandated reporter pursuant to subsection (A).

HISTORY: 2008 Act No. 361, Section 2; 2010 Act No. 227, Section 1, eff upon approval

(became law without the Governor's signature on June 8, 2010); 2018 Act No. 222 (H.4705),

Section 1, eff May 18, 2018.

Page 4 of 19

SECTION 63-7-330. Confidentiality of information.

(A) The identity of the person making a report pursuant to this section must be kept confidential

by the agency or department receiving the report and must not be disclosed except as provided

for in subsection (B) or (C) or as otherwise provided for in this chapter.

(B) When the department refers a report to a law enforcement agency for a criminal

investigation, the department must inform the law enforcement agency of the identity of the

person who reported the child abuse or neglect. The identity of the reporter must only be used by

the law enforcement agency to further the criminal investigation arising from the report, and the

agency must not disclose the reporter's identity to any person other than an employee of the

agency who is involved in the criminal investigation arising from the report. If the reporter

testifies in a criminal proceeding arising from the report, it must not be disclosed that the reporter

made the report.

(C) When a law enforcement agency refers a report to the department for an investigation or

other response, the law enforcement agency must inform the department of the identity of the

person who reported the child abuse or neglect. The department must not disclose the identity of

the reporter to any person except as authorized by Section 63-7-1990.

HISTORY: 2008 Act No. 361, Section 2.

SECTION 63-7-920. Investigations and case determination.

(A)(1) Within twenty-four hours of the receipt of a report of suspected child abuse or neglect or

within twenty-four hours after the department has assumed legal custody of a child pursuant to

Section 63-7-660 or 63-7-670 or within twenty-four hours after being notified that a child has

been taken into emergency protective custody, the department must begin an appropriate and

thorough investigation to determine whether a report of suspected child abuse or neglect is

"indicated" or "unfounded".

(2) The finding must be made no later than forty-five days from the receipt of the report. A

single extension of no more than fifteen days may be granted by the director of the department,

or the director's designee, for good cause shown, pursuant to guidelines adopted by the

department.

(3) If the investigation cannot be completed because the department is unable to locate the child

or family or for other compelling reasons, the report may be classified as unfounded Category III

and the investigation may be reopened at a later date if the child or family is located or the

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compelling reason for failure to complete the investigation is removed. The department must

make a finding within forty-five days after the investigation is reopened.

(B) The department may file with the family court an affidavit and a petition to support issuance

of a warrant at any time after receipt of a report. The family court must issue the warrant if the

affidavit and petition establish probable cause to believe the child is an abused or neglected child

and that the investigation cannot be completed without issuance of the warrant. The warrant may

authorize the department to interview the child, to inspect the condition of the child, to inspect

the premises where the child may be located or may reside, and to obtain copies of medical,

school, or other records concerning the child.

(C) The department or law enforcement, or both, may interview the child alleged to have been

abused or neglected and any other child in the household during the investigation. The interviews

may be conducted on school premises, at childcare facilities, at the child's home or at other

suitable locations and in the discretion of the department or law enforcement, or both, may be

conducted outside the presence of the parents. To the extent reasonably possible, the needs and

interests of the child must be accommodated in making arrangements for interviews, including

time, place, method of obtaining the child's presence, and conduct of the interview. The

department or law enforcement, or both, shall provide notification of the interview to the parents

as soon as reasonably possible during the investigation if notice will not jeopardize the safety of

the child or the course of the investigation. All state, law enforcement, and community agencies

providing child welfare intervention into a child's life should coordinate their services to

minimize the number of interviews of the child to reduce potential emotional trauma to the child.

(D) The department must furnish to parents or guardians on a standardized form the following

information as soon as reasonably possible after commencing the investigation:

(1) the names of the investigators;

(2) the allegations being investigated;

(3) whether the person's name has been recorded by the department as a suspected perpetrator of

abuse or neglect;

(4) the right to inspect department records concerning the investigation;

(5) statutory and family court remedies available to complete the investigation and to protect the

child if the parent or guardian or subject of the report indicates a refusal to cooperate;

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(6) how information provided by the parent or guardian may be used;

(7) the possible outcomes of the investigation; and

(8) the telephone number and name of a department employee available to answer questions.

(E) This subarticle does not require the department to investigate reports of child abuse or

neglect which resulted in the death of the child unless there are other children residing in the

home, or a resident of the home is pregnant, or the subject of the report is the parent, guardian, or

person responsible for the welfare of another child regardless of whether that child resides in the

home.

(F) The department or law enforcement, or both, may collect information concerning the military

affiliation of the person having custody or control of the child subject to an investigation and

may share this information with the appropriate military authorities pursuant to Section 63-11-

80.

HISTORY: 2008 Act No. 361, Section 2; 2015 Act No. 62 (H.3548), Section 2, eff June 4, 2015.

SECTION 63-7-930. Classification categories.

(A) Reports of child abuse and neglect must be classified in the department's data system and

records in one of three categories: Suspected, Unfounded, or Indicated. If the report is

categorized as unfounded, the entry must further state the classification of unfounded reports as

set forth in subsection (C). All initial reports must be considered suspected. Reports must be

maintained in the category of suspected for no more than sixty days after the report was received

by the department. By the end of the sixty-day time period, suspected reports must be classified

as either unfounded or indicated pursuant to the agency's investigation.

(B)(1) Indicated findings must be based upon a finding of the facts available to the department

that there is a preponderance of evidence that the child is an abused or neglected child. Indicated

findings must include a description of the services being provided the child and those responsible

for the child's welfare and all relevant dispositional information.

(2) If the family court makes a determination or the process described in Subarticle 9 results in a

determination that the indicated finding is not supported by a preponderance of evidence that

there was any act of child abuse or neglect, the case classification must be converted to

unfounded and Section 63-7-940 applies.

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(3) If the family court makes a specific determination, or the process described in Subarticle 9

results in a determination that there is not a preponderance of evidence that the person who was

the subject of the report committed an act of child abuse or neglect, but that the child was abused

or neglected by an unknown person, the department must maintain the case as an indicated case

and access to records of the case may be granted as provided in Section 63-7-1990. The

department shall not delete from its data system or records information indicating that the person

was the subject of the report. The department's data system and records must clearly record the

results of the court or administrative proceeding. If the case record and data system included a

designation with the name of the subject of the report indicating that the person committed the

abuse or neglect, that designation must be removed following the determination that there is not

a preponderance of evidence that the subject of the report committed an act of child abuse or

neglect.

(C) All reports that are not indicated at the conclusion of the investigation and all records of

information for which an investigation was not conducted pursuant to Section 63-7-350 must be

classified as unfounded. Unfounded reports must be further classified as Category I, Category II,

Category III, or Category IV.

(1) Category I unfounded reports are those in which abuse and neglect were ruled out following

the investigation. A report falls in this category if evidence of abuse or neglect as defined in this

chapter was not found regardless of whether the family had other problems or was in need of

services.

(2) Category II unfounded reports are those in which the investigation did not produce a

preponderance of evidence that the child is an abused or neglected child.

(3) Category III unfounded reports are those in which an investigation could not be completed

because the department was unable to locate the child or family or for some other compelling

reason.

(4) Category IV unfounded reports are records of information received pursuant to Section 63-7-

350, but which were not investigated by the department.

HISTORY: 2008 Act No. 361, Section 2.

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SECTION 63-7-940. Use of unfounded case information.

(A) Information concerning reports classified as unfounded contained in the statewide data

system and records must be maintained for not less than five years after the finding. Information

contained in unfounded cases is not subject to disclosure under the Freedom of Information Act

as provided for in Chapter 4, Title 30. Access to and use of information contained in unfounded

cases must be strictly limited to the following purposes and entities:

(1) a prosecutor or law enforcement officer or agency, for purposes of investigation of a

suspected false report pursuant to Section 63-7-440;

(2) the department or a law enforcement officer or agency, for the purpose investigating

allegations of abuse or neglect;

(3) the department or a law enforcement officer or agency, when information is received that

allows the reopening of a Category III unfounded report pursuant to Section 63-7-920(A);

(4) as evidence in a court proceeding, if admissible under the rules of evidence as determined by

a judge of competent jurisdiction;

(5) a person who is the subject of a report in an action brought by a prosecutor or by the

department, if otherwise subject to discovery under the applicable rules of procedure;

(6) the department, for program improvement, auditing, and statistical purposes;

(7) as authorized in Section 63-7-2000;

(8) the Department of Child Fatalities pursuant to Section 63-11-1960; and

(9)(a) the director or his designee who may disclose information to respond to an inquiry by a

committee or subcommittee of the Senate or the House of Representatives or a joint committee

of the General Assembly, which is engaged in oversight or investigating the activities of the

department, provided that such information is reviewed in closed session and kept confidential.

Notwithstanding the provisions of Chapter 4, Title 30, meetings to review information disclosed

pursuant to this subitem must be held in closed session and any documents or other materials

provided or reviewed during the closed session are not subject to public disclosure;

(b) the department shall state that the case was unfounded when disclosing information pursuant

to this item.

(B) Except as authorized in this section, no person may disseminate or permit dissemination of

information maintained pursuant to subsection (A). A person who disseminates or permits

dissemination in violation of this subsection is guilty of a misdemeanor and, upon conviction,

Page 9 of 19

must be fined not more than one thousand five hundred dollars or imprisoned not more than one

year, or both. A person aggrieved by an unlawful dissemination in violation of this subsection

may bring a civil action to recover damages incurred as a result of the unlawful act and to enjoin

its dissemination or use.

HISTORY: 2008 Act No. 361, Section 2; 2014 Act No. 291 (H.3124), Section 2, eff June 23,

2014.

SECTION 63-7-2000. Retention and disclosure of records of unfounded cases.

(A) Notwithstanding other provisions of the law affecting confidentiality of child protective

services records and use and disclosure of records of unfounded cases, records concerning

unfounded reports must be retained and disclosed as provided in this section.

(B) The alleged perpetrator in an unfounded report who has reason to believe that the report was

made maliciously or in bad faith has the right to request in writing that records of the report be

retained by the department for up to two years from the date of the case decision. The written

request must be received by the department within thirty days of the person's receiving notice of

the case decision. A person exercising this right may request a copy of the record of the

unfounded case and the department shall provide a copy of the record, subject to subsection (C).

(C) The department shall disclose to persons exercising the rights afforded them under this

section whether the report was made anonymously. However, the identity of a reporter must not

be made available to the person except by order of the family court.

(D) An alleged perpetrator in an unfounded case who believes the report was made maliciously

or in bad faith may petition the family court to determine whether there is probable cause to

believe that the reporter acted maliciously or in bad faith. The court shall determine probable

cause based on an in camera review of the case record and oral or written argument, or both. If

the court finds probable cause, the identity of the reporter must be disclosed to the moving party.

(E) Notwithstanding other provisions of the law affecting confidentiality of child protective

services records and use and disclosure of records of unfounded cases, a court conducting civil or

criminal proceedings resulting from disclosures authorized by this section may order the

department to release the record to any party to the case or the law enforcement.

(F) The department is authorized to release a summary of the allegations and outcome of an

investigation for unfounded cases regarding a child and family to a South Carolina Children's

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Advocacy Medical Response System child abuse health care provider or his designee for

evaluation of the child for suspected abuse or neglect.

HISTORY: 2008 Act No. 361, Section 2; 2015 Act No. 75 (S.250), Section 4, eff June 8, 2015.

SECTION 63-7-1990. Confidentiality and release of records and information.

(A) All reports made and information collected pursuant to this article maintained by the

Department of Social Services and the Central Registry of Child Abuse and Neglect are

confidential. A person who disseminates or permits the dissemination of these records and the

information contained in these records except as authorized in this section, is guilty of a

misdemeanor and, upon conviction, must be fined not more than one thousand five hundred

dollars or imprisoned not more than one year, or both.

(B) The department is authorized to grant access to the records of indicated cases to the

following persons, agencies, or entities:

(1) the Department of Children's Advocacy;

(2) a person appointed as the child's guardian ad litem, the attorney for the child's guardian ad

litem, or the child's attorney;

(3) appropriate staff of the department;

(4) a law enforcement agency investigating or prosecuting known or suspected abuse or neglect

of a child or any other crime against a child, attempting to locate a missing child, investigating or

prosecuting the death of a child, or investigating or prosecuting any other crime established in or

associated with activities authorized under this article;

(5) a person who is named in a report or investigation pursuant to this article as having abused or

neglected a child, that person's attorney, and that person's guardian ad litem;

(6) a child fourteen years of age or older who is named in a report as a victim of child abuse or

neglect, except in regard to information that the department may determine to be detrimental to

the emotional well-being of the child;

(7) the parents or guardians of a child who is named in a report as a victim of child abuse or

neglect;

(8) county medical examiners or coroners who are investigating the death of a child;

Page 11 of 19

(9) the State Child Fatality Advisory Committee and the Department of Child Fatalities in

accordance with the exercise of their purposes or duties pursuant to Article 19, Chapter 11;

(10) family courts conducting proceedings pursuant to this article;

(11) the parties to a court proceeding in which information in the records is legally relevant and

necessary for the determination of an issue before the court, if before the disclosure the judge has

reviewed the records in camera, has determined the relevancy and necessity of the disclosure,

and has limited disclosure to legally relevant information under a protective order;

(12) a grand jury by subpoena upon its determination that access to the record is necessary in the

conduct of its official business;

(13) authorities in other states conducting child abuse and neglect investigations or providing

child welfare services;

(14) courts in other states conducting child abuse and neglect proceedings or child custody

proceedings;

(15) the director or chief executive officer of a childcare facility, child placing agency, or child

caring facility when the records concern the investigation of an incident of child abuse or neglect

that allegedly was perpetrated by an employee or volunteer of the facility or agency against a

child served by the facility or agency;

(16) a person or agency with authorization to care for, diagnose, supervise, or treat the child, the

child's family, or the person alleged to have abused or neglected the child;

(17) any person engaged in bona fide research with the written permission of the state director or

the director's designee, subject to limitations the state director may impose;

(18) multidisciplinary teams impaneled by the department or impaneled pursuant to statute;

(19) circuit solicitors and their agents investigating or prosecuting known or suspected abuse or

neglect of a child or any other crime against a child, attempting to locate a missing child,

investigating or prosecuting the death of a child, or investigating or prosecuting any other crime

established in or associated with activities authorized under this article;

(20) prospective or current adoptive parents, caregivers, kinship care providers, foster parents,

and public or private residential facilities, in contemplation of placement and after placement.

For purposes of this item, "public or private residential facility" has the same meaning as defined

in Section 63-7-770;

Page 12 of 19

(21) the Division for the Review of the Foster Care of Children, for purposes of certifying in

accordance with Section 63-11-730 that no potential employee or no nominee to and no member

of the state or a local foster care review board is a subject of an indicated report or affirmative

determination;

(22) employees of the Division for the Review of the Foster Care of Children and members of

local boards when carrying out their duties pursuant to Article 7, Chapter 11; the department and

the division shall limit by written agreement or regulation, or both, the documents and

information to be furnished to the local boards;

(23) the Division of Guardian ad Litem, for purposes of certifying that no potential employee or

volunteer is the subject of an indicated report or an affirmative determination;

(24) the designated authorities at the military installation where the active duty service member,

who is the sponsor of the alleged abused or neglected child, is assigned. The authorities are

designated in the memorandum of understanding or agreement between county protective

services and the military installation's command authority; and

(25) a South Carolina Children's Advocacy Medical Response System child abuse health care

provider or his designee for the evaluation of a child for suspected abuse or neglect.

(C) The department may limit the information disclosed to individuals and entities named in

subsection (B)(13), (14), (15), (16), (17), (18), and (20) to that information necessary to

accomplish the purposes for which it is requested or for which it is being disclosed; however, the

department shall comply with subsection (D)(2) regarding the release of medical or mental

health records to an individual or facility identified in subsection (B)(20). Nothing in this

subsection gives to these entities or persons the right to review or copy the complete case record.

(D)(1) When a request for access to the record comes from an individual identified in subsection

(B)(5), (6), or (7), or that person's attorney, the department shall review any reports from medical

care providers and mental health care providers to determine whether the report contains

information that does not pertain to the case decision, to the treatment needs of the family as a

whole, or to the care of the child. If the department determines that these conditions exist, before

releasing the document, the department shall provide a written notice identifying the report to the

requesting party and to the person whose treatment or assessment was the subject of the report.

The notice may be mailed to the parties involved or to their attorneys or it may be delivered in

person. The notice shall state that the department will release the report after ten days from the

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date notice was mailed to all parties and that any party objecting to release may apply to the

court of competent jurisdiction for relief. When a medical or mental health provider or agency

furnishes copies of reports or records to the department and designates in writing that those

reports or records are not to be further disclosed, the department must not disclose those

documents to persons identified in subsection (B)(5), (6), or (7), or that person's attorney. The

department shall identify to the requesting party the records or reports withheld pursuant to this

subsection and shall advise the requesting party that he may contact the medical or mental health

provider or agency about release of the records or reports.

(2) The department is authorized to release all records and reports in the department's possession

from a child's medical providers and mental health providers to an individual or facility

identified in subsection (B)(20) that are necessary for that individual or facility to provide

adequate care and supervision for the child and to protect the health and safety of the child and

others. The department also is authorized to and shall release the information in its possession to

a child-placing agency for the benefit of a foster parent recruited, trained and supported by the

child-placing agency. Information that must be released includes, but is not limited to, the

following:

(a) any medical, dental, and mental health, developmental, educational or other special needs of

the child, including the names and addresses of the child's health and educational providers, the

child's medical history, a record of the child's immunizations, the child's current medications, the

child's known medical problems, and any other pertinent health information concerning the

child;

(b) the child's history of and risks relating to the child's history including, but not limited to,

physical or sexual trauma, physical or sexual aggression, or psychological diagnoses; and

(c) treatment plans developed for the child.

(E) A disclosure pursuant to this section shall protect the identity of the person who reported the

suspected child abuse or neglect. The department also may protect the identity of any other

person identified in the record if the department finds that disclosure of the information would be

likely to endanger the life or safety of the person. Nothing in this subsection prohibits the

department from subpoenaing the reporter or other persons to court for the purpose of testimony

if the department determines the individual's testimony is necessary to protect the child; the fact

that the reporter made the report must not be disclosed.

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(F) The department is authorized to summarize the outcome of an investigation to the person

who reported the suspected child abuse or neglect if the person requests the information at the

time the report is made. The department has the discretion to limit the information disclosed to

the reporter based on whether the reporter has an ongoing professional or other relationship with

the child or the family.

(G)(1) The state director of the department or the director's designee may disclose to the media

information contained in child protective services records if the disclosure is limited to

discussion of the department's activities in handling the case including information placed in the

public domain by other public officials, a criminal prosecution, the alleged perpetrator or the

attorney for the alleged perpetrator, the party in interest, or other public judicial proceedings. For

purposes of this subsection, information is considered "placed in the public domain" when it has

been reported in the news media, is contained in public records of a criminal justice agency, is

contained in public records of a court of law, or has been the subject of testimony in a public

judicial proceeding.

(2) The director or his designee shall disclose information in records required to be kept

confidential pursuant to subsection (A) to respond to an allegation made by the alleged

perpetrator, the attorney for the alleged perpetrator, the party in interest, or other public officials

in public testimony before a committee or subcommittee of the Senate or the House of

Representatives or a joint committee of the General Assembly, which is engaged in oversight or

investigating the activities of the department. The department's response is limited to discussion

of the department's activities in handling the case relating to the allegation made in public

testimony.

(3) For all other information not subject to disclosure pursuant to subsection (G)(2), the director

or his designee shall disclose information in records required to be kept confidential pursuant to

subsection (A) to respond to an inquiry from a committee or subcommittee of the Senate or the

House of Representatives or a joint committee of the General Assembly, which is engaged in

oversight or investigating the activities of the department. The information must be reviewed in a

closed session and kept confidential. Notwithstanding the provisions of Chapter 4, Title 30,

meetings to review information disclosed pursuant to this item must be held in closed session

and any documents or other materials provided or reviewed during the closed session are not

Page 15 of 19

subject to public disclosure.

(H) The state director or the director's designee is authorized to prepare and release reports of the

results of the department's investigations into the deaths of children in its custody or receiving

child welfare services at the time of death.

(I) The department is authorized to disclose information concerning an individual named in the

Central Registry of Child Abuse and Neglect as a perpetrator when screening of an individual's

background is required by statute or regulation for employment, licensing, or any other purposes,

or a request is made in writing by the person being screened. Nothing in this section prevents the

department from using other information in department records when making decisions

concerning licensing, employment, or placement, or performing other duties required by this act.

The department also is authorized to consult any department records in providing information to

persons conducting preplacement investigations of prospective adoptive parents in accordance

with Section 63-9-520.

(J) The department is authorized to maintain in its childcare regulatory records information about

investigations of suspected child abuse or neglect occurring in childcare facilities.

(1) The department must enter child abuse or neglect investigation information in its regulatory

record from the beginning of the investigation and must add updated information as it becomes

available. Information in the regulatory records must include at least the date of the report, the

nature of the alleged abuse or neglect, the outcome of the investigation, any corrective action

required, and the outcome of the corrective action plan.

(2) The department's regulatory records must not contain the identity of the reporter or of the

victim child.

(3) The identity of the perpetrator must not appear in the record unless the family court has

confirmed the department's determination or a criminal prosecution has resulted in conviction of

the perpetrator.

(4) Nothing in this subsection may be construed to limit the department's authority to use

information from investigations of suspected child abuse or neglect occurring in childcare

facilities to pursue an action to enjoin operation of a facility as provided in Chapter 13.

(5) Record retention provisions applicable to the department's child protective services case

records are not applicable to information contained in regulatory records concerning

investigations of suspected child abuse or neglect occurring in childcare facilities.

Page 16 of 19

(K) All reports made available to persons pursuant to this section must indicate whether or not an

appeal is pending on the report pursuant to Subarticle 9.

(L) The department may disclose to participants in a family group conference relevant

information concerning the child or family or other relevant information to the extent that the

department determines that the disclosure is necessary to accomplish the purpose of the family

group conference. Participants in the family group conference must be instructed to maintain the

confidentiality of information disclosed by the agency.

(M) Nothing in this section may be construed to waive the confidential nature of the case record,

to waive any statutory or common law privileges attaching to the department's internal reports or

to information in case records, to create a right to access under the Freedom of Information Act,

or to require the department to search records or generate reports for purposes of the Freedom of

Information Act.

(N) The department is authorized to provide a summary of referrals and the outcome of the

referrals made to a contracted service agency or program addressing identified risks affecting the

stability of the family to a South Carolina Children's Advocacy Medical Response System child

abuse health care provider or his designee.

(O) The department shall notify and share information relating to the outcome of an indicated

investigation or other contracted services and programs addressing identified risks affecting the

stability of the family with the physicians involved in the ongoing primary or specialty health

care of the child.

HISTORY: 2008 Act No. 361, Section 2; 2014 Act No. 291 (H.3124), Section 3, eff June 23,

2014; 2015 Act No. 62 (H.3548), Section 3, eff June 4, 2015; 2015 Act No. 75 (S.250), Sections

2, 3, eff June 8, 2015; 2018 Act No. 160 (S.805), Section 12, eff July 1, 2019; 2018 Act No. 165

(H.3699), Section 4, eff May 3, 2018.

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KINSHIP CARE & KINSHIP FOSTERCARE

https://dss.sc.gov/prevention/kinship-care/

When children must leave birth parents and live with relatives, it’s called kinship care.

Kinship care is, many times, the very best alternative for children. Even though it’s a change for

everyone in the family, it’s an opportunity for the child to stay with family members who share

the same roots.

Sometimes these family bonds can be a source of strength, and sometimes these bonds can cause

hardship, but these can be overcome. Many times families are stronger on the other side of

hardship.

It’s important to remember that in all situations, these roots are important to children- they are a

connection to who the children are.

There is a website that provides resources and training to help with common challenges that

kinship caregivers face when they begin to parent the children of a relative.

What is kinship care?

Kinship care refers to a temporary or permanent informal arrangement in which a relative or

non-related adult (also known as fictive kin) has assumed the full time care of a child whose

parents are unable to do so. These kin caregivers may already have a close relationship or bond

with the child or family.

Who are kinship caregivers?

Kinship caregivers are one of South Carolina’s greatest resources. They are grandparents, aunts,

uncles, neighbors, family friends, godparents, and other people who have a meaningful

connection to the child that they are now caring for because the child cannot live with his/her

parents. Kinship caregivers who care for children receiving Child Protective Services have met

certain requirements set forth by DSS, such as safety checks of the home.

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Who Can Become a Licensed Kinship Foster Parent?

For the purposes of Kinship Foster Care, the child must be in legal custody of the Department of

Social Services and only a relative who is related through blood, marriage, or adoption can

become a Kinship Foster parent.

Licensing Requirements:

If you are interested in becoming licensed, please contact the Regional Kinship Coordinator in

your region to begin the application process.

What are the benefits of becoming licensed?

A child who has been removed by the family court can be placed in the home of a caregiver with

whom the child is familiar, minimizing the impact of being removed from a biological parent.

Additionally, licensed kinship caregivers receive the benefits and services that unrelated licensed

foster parents receive, including training, case management and support, and foster care board

payments to support the child.

DSS has Kinship Care Coordinators to help. Kinship care coordinators can help you navigate and

advocate for you and the children in your care They can provide you with information about

local resources that will support you and help your children thrive and deal with issues that may

arise.

Each DSS region has a Kinship Care Coordinator available to assist you.

• Upstate Region: 888-839-0155

• Midlands Region: 888-839-0159

• Pee Dee Region: 888-854-4317

• Low Country Region: 888-854-4277

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SECTION 63-7-735. Right to become a licensed kinship foster parent.

(A) Before the department places a child with a relative who is not licensed as a foster parent, the

department shall inform the relative of the procedures for licensure as a foster parent, the benefits

of licensure as a foster parent, including eligibility for financial assistance and supportive

services, and the risk that the relative may be ineligible for that assistance and services if the

relative is not licensed as a foster parent.

(B) An order issued as a result of a hearing in which the court approves placement of a child with

a relative who is not licensed as a foster parent must contain a finding by the court whether the

department informed the relative of the right to become licensed as a foster parent, the

procedures for obtaining licensure, and the benefits of being licensed as a foster parent, including

eligibility for financial assistance and supportive services.

(C) If the court finds that the department complied with the requirements of this section and

Sections 63-7-2320(C) and (E) and 63-7-2330, and the relative indicates to the court that the

relative does not wish to pursue licensure as a foster parent, the court may approve the placement

pursuant to this section.

HISTORY: 2018 Act No. 146 (H.3701), Section 1, eff April 4, 2018.

Private Guardians ad Litem Statute

ARTICLE 7

Private Guardians ad Litem DERIVATION TABLE Showing the sections in former Chapter 7, Title 20 from which the sections in this article were derived. New Section Former Section 63-3-810 20-7-1545 63-3-820 20-7-1547 63-3-830 20-7-1549 63-3-840 20-7-1551 63-3-850 20-7-1553 63-3-860 20-7-1555 63-3-870 20-7-1557 SECTION 63-3-810. Appointment. (A) In a private action before the family court in which custody or visitation of a minor child is an issue, 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. (B) The court has absolute discretion in determining who will be appointed as a guardian ad litem in each case. A guardian ad litem must be appointed to a case by a court order. HISTORY: 2008 Act No. 361, Section 2. SECTION 63-3-820. Qualifications. (A) A guardian ad litem may be either an attorney or a layperson. A person must not be appointed as a guardian ad litem pursuant to Section 63-3-810 unless he possesses the following qualifications: (1) a guardian ad litem must be twenty-five years of age or older; (2) a guardian ad litem must possess a high school diploma or its equivalent; (3) an attorney guardian ad litem must annually complete a minimum of six hours of family law continuing legal education credit in the areas of custody and visitation;

however, this requirement may be waived by the court; (4) for initial qualification, a lay guardian ad litem must have completed a minimum of nine hours of continuing education in the areas of custody and visitation and three hours of continuing education related to substantive law and procedure in family court. The courses must be approved by the Supreme Court Commission on Continuing Legal Education and Specialization; (5) a lay guardian ad litem must observe three contested custody merits hearings prior to serving as a guardian ad litem. The lay guardian must maintain a certificate showing that observation of these hearings has been completed. This certificate, which shall be on a form approved by Court Administration, shall state the names of the cases, the dates and the judges involved and shall be attested to by the respective judge; and (6) lay guardians ad litem must complete annually six hours of continuing education courses in the areas of custody and visitation. (B) A person shall not be appointed as a guardian ad litem pursuant to Section 63-3-810 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 63-3-810 if he is or has ever been on the Department of Social Services Central Registry of Abuse and Neglect. (D) Upon appointment to a case, a guardian ad litem must provide an affidavit to the court and to the parties attesting to compliance with the statutory qualifications. The affidavit must include, but is not limited to, the following: (1) a statement affirming that the guardian ad litem has completed the training requirements provided for in subsection (A); (2) a statement affirming that the guardian ad litem has complied with the requirements of this section, including a statement that the person has not been convicted of a crime enumerated in subsection (B); and (3) a statement affirming that the guardian ad litem is not nor has ever been on the Department of Social Services Central Registry of Child Abuse and Neglect pursuant to Subarticle 13, Article 3, Chapter 7. (E) The court may appoint an attorney for a lay guardian ad litem. A party or the guardian ad litem may petition the court by motion for the appointment of an attorney for the guardian ad litem. This appointment may be by consent order. The order appointing

the attorney must set forth the reasons for the appointment and must establish a method for compensating the attorney. HISTORY: 2008 Act No. 361, Section 2. SECTION 63-3-830. Responsibilities. (A) The responsibilities and duties of a guardian ad litem include, but are not limited to: (1) representing the best interest of the child; (2) conducting an independent, balanced, and impartial investigation to determine the facts relevant to the situation of the child and the family. An investigation must include, but is not limited to: (a) obtaining and reviewing relevant documents, except that a guardian ad litem must not be compensated for reviewing documents related solely to financial matters not relevant to the suitability of the parents as to custody, visitation, or child support. The guardian ad litem shall have access to the child's school records and medical records. The guardian ad litem may petition the family court for the medical records of the parties; (b) meeting with and observing the child on at least one occasion; (c) visiting the home settings if deemed appropriate; (d) interviewing parents, caregivers, school officials, law enforcement, and others with knowledge relevant to the case; (e) obtaining the criminal history of each party when determined necessary; and (f) considering the wishes of the child, if appropriate; (3) advocating for the child's best interest by making specific and clear suggestions, when necessary, for evaluation, services, and treatment for the child and the child's family. Evaluations 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; (4) attending all court hearings related to custody and visitation issues, except when attendance is excused by the court or the absence is stipulated by both parties. A guardian must not be compensated for attending a hearing related solely to a financial matter if the matter is not relevant to the suitability of the parents as to custody, visitation, or child support. The guardian must provide accurate, current information directly to the court, and that information must be relevant to matters pending before the court;

(5) maintaining a complete file, including notes. A guardian's notes are his work product and are not subject to subpoena; and (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. (B) A guardian ad litem may submit briefs, memoranda, affidavits, or other documents on behalf of the child. A guardian ad litem may also submit affidavits at the temporary hearing. Any report or recommendation of a guardian ad litem must be submitted in a manner consistent with the South Carolina Rules of Evidence and other state law. HISTORY: 2008 Act No. 361, Section 2. SECTION 63-3-840. Mediation prohibition. A guardian ad litem must not mediate, attempt to mediate, or act as a mediator in a case to which he has been appointed. However, nothing in this section shall prohibit a guardian ad litem from participating in a mediation or a settlement conference with the consent of the parties. HISTORY: 2008 Act No. 361, Section 2. SECTION 63-3-850. Compensation. (A) At the time of appointment of a guardian ad litem, the family court 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. If the guardian ad litem determines that it is necessary to exceed the fee initially authorized by the judge, 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. (B) A guardian appointed by the court is entitled to reasonable compensation, subject to the review and approval of the court. In determining the reasonableness of the fees and

costs, the court must take into account: (1) the complexity of the issues before the court; (2) the contentiousness of the litigation; (3) the time expended by the guardian; (4) the expenses reasonably incurred by the guardian; (5) the financial ability of each party to pay fees and costs; and (6) any other factors the court considers necessary. (C) The guardian ad litem must submit an itemized billing statement of hours, expenses, costs, and fees to the parties and their attorneys pursuant to a schedule as directed by the court. (D) At any time during the action, a party may petition the court to review the reasonableness of the fees and costs submitted by the guardian ad litem or the attorney for the guardian ad litem. HISTORY: 2008 Act No. 361, Section 2. SECTION 63-3-860. Disclosure. A guardian ad litem appointed by the family court in a custody or visitation action must, upon notice of the appointment, provide written disclosure to each party: (1) of the nature, duration, and extent of any relationship the guardian ad litem or any member of the guardian's immediate family residing in the guardian's household has with any party; (2) of any interest adverse to any party or attorney which might cause the impartiality of the guardian ad litem to be challenged; (3) any membership or participation in any organization related to child abuse, domestic violence, or drug and alcohol abuse. HISTORY: 2008 Act No. 361, Section 2. SECTION 63-3-870. Removal. A guardian ad litem may be removed from a case at the discretion of the court. HISTORY: 2008 Act No. 361, Section 2.