South Carolina BAR Journal
SC Lawyer, May 2012, #5.
Delineating the Roles of Guardians Ad Litem and Custody Evaluators: Where Do Their Labors Intersect and Where Not?
South Carolina LawyerMay 2012Delineating the Roles of Guardians Ad Litem and Custody Evaluators: Where Do Their Labors Intersect and Where Not?By Melissa F. BrownIn child disputes, the family court's main focus is always on the welfare of and the best interests of the child. Moore v. Moore, 300 S.C. 75, 78, 386 S.E.2d 456, 458 (1989); Ingoldv. Ingold, 304 S.C. 316, 319-20, 404 S.E.2d 35, 36-37 (Ct. App. 1991). While there is no consensus in the legal literature about the factors that define the best interests of the child, several states have identified through statute or case law specific factors that the court should consider when making custodial determinations. Among the factors deemed relevant in South Carolina are the "psychological and emotional considerations as they relate to the child." Woodall v. Woodall, 322 S.C. 7, 11, 471 S.E.2d 154, 157 (1996). However, these "psychological and emotional considerations" have not been defined by statute or case law, nor have they been defined in the forensic psychological literature.
To assist the court in understanding the wishes and/or needs of the child, judges often appoint a guardian ad litem (GAL) to represent the best interests of the child. Where it is necessary to assess the psychological condition/interests of the child or where one or both parents may have psychological issues that could affect the well-being of the child, custody evaluators are typically appointed because neither the court nor the GAL has the credentials or the requisite training to evaluate such issues. In those circumstances, often by motion of one of the parties or the GAL, the court should appoint a custody evaluator "to aid the trier of fact in determining placement of the child ..." Marc J. Ackerman Andrew W. Kane, Psychological Experts in Divorce Actions 5 (5th ed. 2011). South Carolina's licensing rules, S.C. Code 40-55-170, require that a psychologist be licensed. If the psychologist is not licensed and practicing in South Carolina, the psychologist could be found guilty of a felony and fined of up to fifty thousand dollars or imprisoned for up to one year.
Similarities and differences between a guardian ad litem and a forensic custody evaluator
A GAL is appointed by the court to represent the interests of a person who is unable advocate for himself or herself. See South Carolina Private Guardian ad Litem Reform Act, S.C. Code Ann. 63-3-830 (Supp. 2011) (codifying the guidelines from Patel v. Patel, 347 S.C. 281, 288-89, 555 S.E.2d 386, 390 (2001)). The GAL can be a lawyer or non-lawyer as long as all training and qualification requirements are met. A GAL is both a spokesperson for the child and an investigator who relays facts to the court that are relevant to the court's overall determination of the "best interest[s] of the child." 63-3-830(A)(1).
A GAL's responsibilities include "conducting an independent, balanced, and impartial investigation to determine the facts relevant to the situation of the child and the family." 63-3-830(A)(2). Such investigation must include "obtaining and reviewing relevant documents" as well as accessing "the child's school records and medical records." 63-3-830(A)(2)(a). In addition, a GAL must meet and observe the child, 63-3-830(A)(2)(b), "visit the home settings if deemed appropriate]" 63-3-830(A)(2)(c), and "interview . . . parents, caregivers, school officials, law enforcement, and others . . . ." 63-3-830(A)(2)(d). The GAL's objective is to investigate the facts and provide the court with an unbiased, written report containing facts that directly impact the child's best interests. 63-3-830(A)(6).
Similarly, the custody evaluator inquires into and represents the "best psychological interests of the child." American Psychological Association, Guidelines for Child Custody Evaluations in Family Law Proceedings, 65 Am. Psychologist 863 (2010). However, "not all psychologists are qualified to perform child custody evaluations. Competence is gained through education, training, supervised experience, consultation, study, and professional experience." Marc J. Ackerman, Clinician's Guide to Child Custody Evaluations 3 (3d ed. 2006).
In South Carolina, the licensing regulations require custody evaluators to view as a minimal practice standard the American Psychological Association's Child Custody Guidelines and Ethical Code of Conduct. S.C. Code Ann. Regs. 100-4 (2011). The evaluator's role is multifaceted, serving as a psychological fact finder...