Today the South Carolina Supreme Court issued a decision in a custody case from York County, overruling the court of appeals.  The matter of Wendy Grungo-Smith v Joseph Grungo involved a request by Father to modify a prior custody order and grant him primary legal and physical custody of two minor children.

 At trial, Judge Thomas Henry White IV found Father had proven a change in circumstances sufficient to support his claim.  Further, in attempting to reconcile the conflicting testimony between the parties, J. White requested the opinion of the Guardian ad Litem as to which party would be the better custodial parent. At the conclusion of the trial, J. White granted Father's request for primary custody of the minor children, which was in line with the opinion of the Guardian.

On appeal, the Court of Appeals ruled that absent absent "extraordinary circumstances", a trial court judge was not permitted to seek a custodial opinion from the Guardian ad Litem. The Court then reversed J. White's ruling, partly on this issue, and reinstated the original joint custody order.

The Supreme Court reversed the court of appeals and reinstated J. White's ruling granting Father custody.  The court cited Section 63-3-830 of the South Carolina Code (2010) that established the duties of a private guardian ad litem.  Specially the Supreme Court indicated J. White clearly followed the statute wherein it stated that a "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." (Emphasis added)

The court of appeals simply created a requirement of "extraordinary circumstances" where none had previously existed.  J. White did everything by the book when he asked for the Guardian's opinion.  Furthermore, and most interesting, "...neither party advocated for this reading ... at any point before the family court or the court of appeals. Rather, the court of appeals erroneously took it upon itself to enlarge Mother's issue on appeal—whether the family court overly relied on the guardian's testimony and report—to encompass this question".

This case presents a good example of the kind of facts that will allow a Guardian to opine on custody:  The evidence was in clear conflict and the parties had no desire to meet in the middle, as both were requesting primary custody.  Judge White needed to hear from the child's advocate in order to make a fully informed decision that was in the best interests of the two children.

Guy Vitetta

Charleston