A recent SC Family Law decision by the Court of Appeals discusses the adequacy of an investigation by a Guardian ad Litem in a custody case.
In Simcox-Adams v Adams the trial court modified the temporary custody order that gave Wife primary custody of an adolescent daughter and awarded Father primary custody. On appeal, Wife alleged that the Guardian’s investigation was not sufficient because the Guardian did not meet with Wife and the child in her home until the night after the trial began, and Wife was never contacted by the GAL at any other time.
The Guardian explained at trial that Wife never answered the Guardian’s telephone calls and her voicemail was always full so he could not leave a message. He also explained that he wanted to delay contacting Wife until close to trial so as to give a more accurate report and keep her costs down.
The Appellate Court found that the Guardian’s investigation “causes concern”. In spite of their concerns, the Appellate Court found that the trial judge “made an independent and well-informed decision, giving appropriate and fair weight to all relevant custody considerations”.
The trial judge did not simply rely in the Guardian’s report, but also relied on the testimony of the child’s therapist and other witnesses called by the parties. In fact, as the Appellate Court noted, the Guardian’s report was not even mentioned in the Final Order granting primary custody to Husband.
This case demonstrates that parties engaged in custody litigation can overcome poor investigation by a Guardian with other good evidence in support of their position. The trial court properly considered “all the relevant factors and circumstances” when making this custody decision, and the Guardian’s report was only one of those relevant factors and circumstances.
This case also demonstrates the need of the litigants to take control of their case and present good evidence in support of their position. This includes taking affirmative action to contact the Guardian and request a specific investigation, rather than waiting for the Guardian to do whatever investigation the Guardian chooses to do (or not do).