TN 7 (06-08)

PR 01805.045 South Carolina

A. PR 08-110 Guardianship of Aja S~ SSN: ~

DATE: July 3, 2007


In South Carolina, a court order awarding permanent legal and physical custody of the minor child to an individual other than his or her parents is not sufficient to establish either that parental rights have been terminated or that the individual has been granted legal guardianship unless those points are clearly stated in the order.


Question Presented

You asked whether the court order dated April 27, 2005, establishes Ms. Louise G~ as the legal guardian of Aja S~.


We do not believe the order that we have been presented establishes any guardianship rights over Aja, either in Ms. G~ or another person.


The court's order dated April 26, 2005, awarded "[p]ermanent legal and physical custody of the minor child Aja S~" to Ms. Louise G~, also designating her as Aja's personal representative with regard to the Health Insurance Portability and Accountability Act (HIPPA) regulations. It further appears that the court discharged the guardian ad litem, who was appointed to oversee the rights of Aja and her brother in 2005. However, this fact is less than clear. Even though the court order found that return of Aja to her parents, Ida E. S~ G~ and Phillip G~, was not in her best interests at that time, nothing in that order indicates that the court was terminating parental rights. Therefore, absent other evidence to the contrary, Ida and Phillip appear to retain some level of parental rights for Aja.

Under South Carolina law, the relevant terms are defined as:

"Legal custody" means the right to the physical custody, care, and control of a child; the right to determine where the child shall live; the right and duty to provide protection, food, clothing, shelter, ordinary medical care, education, supervision, and discipline for a child and in an emergency to authorize surgery or other extraordinary care. The court may in its order place other rights and duties with the legal custodian. Unless otherwise provided by court order, the parent or guardian retains the right to make decisions of substantial legal significance affecting the child, including consent to a marriage, enlistment in the armed forces, and major nonemergency medical and surgical treatment, the obligation to provide financial support or other funds for the care of the child, and other residual rights or obligations as may be provided by order of the court.

S.C. CODE ANN. § 20-7-490(21) (2006). The term "physical custody" "means the lawful, actual possession and control of a child." S.C. CODE ANN. § 20-7-490(23) (2006). Neither of these terms denotes guardianship, which is defined as follows:

"Guardianship of a child" means the duty and authority vested in a person by the family court to make certain decisions regarding a child, including:

(a) consenting to a marriage, enlistment in the armed forces, and medical and surgical treatment;(b) representing a child in legal actions and to make other decisions of substantial legal significance affecting a child; and

(c) rights and responsibilities of legal custody when legal custody has not been vested by the court in another person, agency, or institution.

S.C. CODE ANN. § 20-7-490(20) (2006).

The court's 2005 order seems to give Ms. G~ most, but not all, rights ordinarily provided a guardian. Given that this order is silent regarding guardianship and that some guardianship rights have been apparently retained either in the natural parents or in another person such as a guardian ad litem, this order does not conclusively denote that Ms. G~ is Aja's guardian. Perhaps a later order of guardianship or custody may more clearly indicate who has been appointed as Aja's guardian, but in the absence of such an order, we cannot tell one way or another who is Aja's legal guardian based on the present order that we were given. Should another order be located that is more clear on this issue, we would gladly review that for a determination of guardianship.

Very truly yours,
Mary Ann S~
Regional Chief Counsel
Jerome M. A~
Assistant Regional Counsel

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PR 01805.045 - South Carolina - 06/06/2008
Batch run: 11/29/2012