In South Carolina, an individual can file a petition in Family Court to obtain guardianship of a minor, meaning a person under 18. The individual should submit the petition in the county where the child lives. There is no standard form to petition for guardianship of a minor.
A guardian has physical and/or legal custody of the child. After the court appoints a person as a guardian, that person has the right to make decisions about the child’s health, education, maintenance and support. The guardianship will terminate when the child reaches the age of 18.
Guardian Appointed in Will
The court can also appoint an individual to be a guardian because the parent has died, and the parent named the individual to be the guardian in their will. The individual must consent to being named as the guardian.
If the parent died without a will, or the will does not name a guardian, the court will appoint the guardian based on the “best interest of the child” standard. This means the court looks at what arrangement will best support the needs of the child.
Requirements for a Guardian
A guardian must be an adult and fit to make major decisions for a minor. A guardian may not be a person who has been convicted of an offense involving the abuse, neglect or abandonment of the child.
The court may consider numerous factors when appointing a guardian, including the guardian’s age, source of income, amount of income, dwelling place and criminal history, as well as the child’s age and needs.
Guardian Can Adopt Child
A guardian of a minor is eligible to adopt the child. They must meet the same requirements as other individuals looking to adopt. They must be:
- At least 21 years old.
- Resident of South Carolina.
- Able to meet the financial and emotional needs of their family members.
Steps for a South Carolina Adoption
Steps for becoming an adoptive parent include:
- Becoming a licensed foster parent or applying to become an adoptive parent through Heartfelt Calling, a program of the South Carolina Foster Parent Association.
- Attending a potential adoptive parent orientation through Heartfelt Calling.
- Completing adoption training.
- Discussing the process with an adoption specialist from the state.
- Doing a walk-through of the residence with an adoption specialist.
- Reviewing background information on the child or sibling group.
- Attending an introductory visit with the child or sibling group.
- Attending transitional visits of the child or sibling group.
- After the final adoptive placement, undergoing a monitoring period and fulfilling post placement reporting requirements.
- Finalizing the adoption in Family Court.
Distinction From Adult Guardianship
An individual should file a petition to have guardianship of an adult in probate court in the county where the adult lives. Guardianship of an adult is usually appropriate for an elderly person who cannot care for themselves or in the case of an adult who is incapacitated because of a physical disability or a mental health issue.
There is no standard form to petition for guardianship of an adult.
Child Custody Determination
Child custody is defined as legal and/or physical custody of a child. Custody arrangements include:
- One parent, the custodial parent, having sole custody, and the other parent, the noncustodial parent, having visitation rights.
- Both parents having joint legal custody, with a 50/50 custody split.
- Both parents having joint custody, with an unequal custody split in favor of one parent.
The court uses a “best interest of the child” standard when issuing custody orders. The rights a father has under South Carolina law depend on the court’s order regarding custody. The court does not issue 50/50 custody unless that is in the best interest of the child.
Child Support Orders
Typically, the noncustodial parent pays the custodial parent child support. If the parents have joint custody, the court usually orders the parent with the higher income to pay child support.
A parent who has physical custody of a child and needs assistance in getting child support payments may apply for services to the South Carolina Department of Social Services (DSS). A noncustodial parent may apply to have paternity established.
What Makes a Parent Unfit
South Carolina considers a parent unfit if the parent neglects, abuses or abandons their child. The court may also consider a parent unfit if the parent has a severe mental health issue or physical health concern and cannot care for the child.
The court may consider a parent unfit if the parent commits a serious criminal offense relating to the family, such as domestic violence against the other parent. The court may further consider a parent unfit if the parent cannot make the home safe within one year.
Termination of Parental Rights
The court usually determines whether a parent is unfit when it considers terminating their parental rights. Situations in which this would be appropriate include:
- If the child or another child has been harmed while residing in the parent’s house. Due to the severity or repetition of the abuse or neglect, it is not reasonably likely that the home can be made safe within one year. The court may consider the parent’s previous abuse or neglect of the child or another child when determining the likelihood that the home can be made safe.
- If the child has been removed from the parent and has been out of the home for six months following the adoption of a placement plan by court order or by agreement between DSS Child Protective Services. The parent has not remedied the conditions that led to the removal.
- If the child has lived outside the home of either parent for six months. and during that time, the parent has willfully failed to visit the child.
- If the child has lived outside the home of either parent for six months, and during that time, the parent has willfully failed to support the child. This means that the parent has failed to make a material contribution to the child’s care. A material contribution can mean a financial contribution according to the parent’s means or contributions of food, clothing, shelter or other necessities for the care of the child according to the parent’s means.
- If the presumptive legal father, such as the father listed on the child’s birth certificate, is not the biological father of the child. The welfare of the child can best be served by terminating the parental rights of the presumptive legal father.
- If the parent has a diagnosable condition unlikely to change within a reasonable time, such as addiction to alcohol or illegal drugs or prescription medication abuse, and the condition makes the parent unlikely to provide minimally acceptable care of the child. The second requirement for this situation is if the parent’s condition is unlikely to change within a reasonable time after DSS has received proof that the parent has been required by DSS or Family Court to participate in a treatment program for the addiction. The parent must have failed two or more times to complete the program successfully or refused two or more separate meetings with DSS to participate in a treatment program. DSS must not terminate the rights of a parent or legal guardian with a disability solely on the basis of the disability.
- If the child has been abandoned.
- If the child has been in foster care under the responsibility of the state for 15 of the most recent 22 months.
- If the physical abuse of a child of the parent resulted in the child’s death or admission to the hospital for inpatient care. Alternatively, the abuse is the act for which the parent has been convicted, or pled guilty or nolo contendere (no contest) to committing or aiding.
- If a parent of the child has pled guilty or nolo contendere to, or is convicted of, the murder of the child’s other parent.
- If the court terminates the rights of a biological parent who conceived the child by criminal sexual conduct. The exception is if the conviction resulted from consensual sexual conduct when neither the victim nor actor were younger than 14 nor older than 18 at the time of the act.
- If the parent of the child has pled guilty or nolo contendere to, or is convicted of, murder, voluntary manslaughter or homicide by child abuse of another child of the parent.
What Is a Guardian ad Litem?
A Guardian ad Litem (GAL) is a person appointed by the court to represent the interests of a minor child in a family law case. The case may involve one or more of these issues:
- Name change.
- Abuse and neglect.
- Paternity action.
- Involuntary commitment of one or more of the parents.
- Termination of parental rights.
A GAL can be a lawyer or nonlawyer (lay guardian). In a private proceeding, a parent can request the use of a GAL, or the court can appoint one on its own motion.
A GAL advocates for the best interest of the child. A GAL must be trained and sworn in by the court. They are required to conduct an investigation and report their findings to the court.
Requirements for a GAL
South Carolina’s requirements for a GAL are:
- Must be 25 or older.
- Must have a high school diploma or the equivalent of one.
- Attorney GALs must complete at least six hours of family law continuing legal education credit in the areas of custody and visitation. The court can waive this requirement.
- For initial qualification, lay guardian must have completed at least 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 law. The courses must be approved by the South Carolina Supreme Court Commission on Continuing Legal Education and Specialization.
- Lay guardians must observe three contested custody merits prior to serving as a GAL.
- Lay guardians must complete six hours of continuing legal education in the areas of custody and visitation per year.
The court will not appoint a person to be a GAL if they have been convicted of certain crimes, such as robbery or domestic violence. The court will also not appoint a person to be a GAL if the person is, or ever has been, on the DSS Central Registry of Abuse and Neglect.
Becoming a Lay Guardian
A person who wants to be an attorney guardian or a lay guardian should contact their local Guardian ad Litem office. This office will let them know about upcoming trainings.
Options include a 30-hour traditional, in-person training as well as flex training. The latter requires 15 hours of in-person training and 15 hours of online courses.
Seeking Legal Advice
A family law attorney with experience in wills can assist a parent with writing a will to name a person as a guardian. A family law attorney can also help a person who wants to become a guardian file a petition.
A parent or potential guardian should look for an attorney who is familiar with the judges in their local family court. The attorney should understand what the judges will look for when appointing a guardian.
- Lexington County, South Carolina: Guardianship and Conservatorship Procedures
- South Carolina Code of Laws: Title 62, South Carolina Probate Code
- South Carolina Code of Laws: Title 20 Domestic Relations
- South Carolina Code of Laws: Title 62 Children's Code
- South Carolina Department of Social Services: Child Support
- State of South Carolina: Guardian ad Litem Program
- South Carolina Department of Social Services: How to Adopt
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.