What is a Guardian ad Litem?

In Illinois child custody and divorce cases, a Guardian ad Litem (GAL) is an attorney appointed by the court to represent the best interest of the minor children. Guardians ad litem may conduct an investigation, complete interviews with the parties, the child, other adults in the child’s life, conduct home visits, review medical records and school records, and report to the court about the child’s well being and best interests. GALs are often distinguished from child attorneys and child representatives.

Do all custody cases have Guardians ad Litem?

The appointment of a GAL to represent a child’s best interests in court proceedings is very dependent on local rules and customs in your case’s county, but no, not all custody cases have a GAL appointment. A Guardian ad Litem is not typically appointed when parents agree to the terms of agreed Parenting Plans, are able to compromise and communicate well with one another, and do not have substantial outstanding issues on which they disagree.

Generally, a Guardian ad Litem is appointed in contentious cases and cases where reports of abuse, neglect or harm to the child have been made. A judge will also appoint Guardians ad Litem in cases involving disabled children and adults, juvenile abuse and neglect, truancy, relocation, guardianship, or adoption. GALs are also frequently appointed when DCFS has been involved with the family.

What is the primary goal of the Guardian ad litem?

A GAL acts as a neutral investigator of the courts. Guardians ad Litem conduct interviews, review the case pleadings and history, pending motions, attend the hearings, and act as the eyes and ears of the judge outside of the courtroom in order to investigate the matter at issue in the litigation and provide their recommendations to resolve the case for the best interests of the child or children.

The court order that appoints the GAL may define the scope and how much further investigation the GAL will be completing in order to present their report to the judge.

What are the responsibilities of a Guardian ad Litem in Illinois?

Illinois Supreme Court rule 907 identifies the duties of Guardians ad Litem.

“As soon as practicable, the child representative, attorney for the child or guardian ad litem shall interview the child, or if the child is too young to be interviewed, the attorney should, at a minimum, observe the child. The child representative, attorney for the child or guardian ad litem shall also take whatever reasonable steps are necessary to obtain all information pertaining to issues affecting the child, including interviewing family members and others possessing special knowledge of the child’s circumstances.
(d) The child representative, attorney for the child or guardian ad litem shall take whatever reasonable steps are necessary to determine what services the family needs to address the custody or allocation of parental responsibilities dispute, make appropriate recommendations to the parties, and seek appropriate relief in court, if required, in order to serve the best interest of the child.
(e) The child representative, attorney for the child or guardian ad litem shall determine whether a settlement of the custody or allocation of parental responsibilities dispute can be achieved by agreement, and, to the extent feasible, shall attempt to resolve such disputes by an agreement that serves the best interest of the child.” Ill. Sup. Ct. R. 907(c),(d),(e)

A GAL may file their own motion in court while advocating for the child or children as well as their petition for fees for compensation for the work that they perform.

How much does a Guardian ad Litem cost in Illinois?

The fees associated with Guardian ad Litem services are almost always set forth in the court order appointing the GAL. The appointment order should address the hourly rate of the GAL and any retainer required of the parties if applicable. The total cost of a GAL will depend on how many hours are necessary for the investigation and report, how much time is spent in court hearings, and the hourly rate of the appointed attorney.

Who pays for the Guardian ad Litem?

The court order appointing the Guardian ad Litem will also address which party is responsible. In many Illinois counties, it is customary for the Guardian ad Litem fees to be equally split between the two parents or two parties. Judges have discretion to set the fees to be split unequally or even assigned solely to one parent. Some counties and courts also have fee waivers which apply to GAL fees if both parties are indigent, but this is rare. This can vary depending on whether your case is for custody, divorce, guardianship or adoption.

Your attorney can advise you prior to the appointment of a Guardian ad Litem what your expected share of the fees may be, and if a Guardian ad Litem has already been appointed in your case, you should be able to consult the court order for more information.

If your Guardian ad Litem appointment order specified a retainer to be paid by you, you should prioritize the payment to the GAL immediately. The GAL may not begin work until the retainer is paid and your case may be substantially delayed (and you will appear uncooperative to the judge) if the delay is caused by non-payment of the GAL’s retainer. The GAL may also proceed with the GAL investigation that does not consider your input, if you are unable to pay the GAL fee.

Can you request a new Guardian ad Litem in Illinois?

A GAL in Illinois is a licensed attorney and so long as the GAL is following the ethical rules that govern the practice of law in Illinois, it would be highly unlikely to be able to have a Guardian ad Litem removed from your case.

Some, but not all, scenarios where a Guardian ad Litem could be removed would include:

• Breach of Loyalty – did your Guardian ad Litem previously represent you or the other party? Was your GAL familiar with the parties on a personal level prior to appointment?
• Failure to perform the duties ordered by the judge
• Dishonesty, fraud, deceit or misrepresentation – this would be incredibly difficult to prove and you should not accuse a GAL of lying unless you have very convincing evidence of it and you’ve consulted with an Attorney
• A Guardian ad Litem may also be voluntarily released from your case if the GAL moves, changes careers, retires, or is otherwise unable to continue serving to represent your child’s best interest.

Consulting an attorney should be your first step if you are having a conflict with the GAL appointed for your child or children. There are many options available to you that have a greater chance of succeeding in court and not damaging your custody case that you should consider prior to attacking your Guardian ad Litem’s character.

Do I have to follow my Guardian ad Litem’s recommendations?

Your Guardian ad Litem’s recommendations do not immediately become an order of the court. If you disagree with the report and recommendations, consult with your attorney to come up with a strategy to prevent the GAL’s recommendations from being ordered in your case.

If the judge does issue an order implementing some or all of the GAL’s recommendations, then yes, you do have to follow the court order, like all orders of the court in your case.

Challenging a Guardian ad Litem’s Report

If you are unhappy with the report or recommendations of your Guardian ad Litem, you still have time to take action before the judge considers and implements your GAL’s recommendations as a court order.

Determine how GAL came to these conclusions

Read your Guardian ad Litem’s written report thoroughly. Your GAL report will disclose the collateral witnesses that were interviewed and the materials that were read by the GAL that led them to the conclusions within the report. Was there a witness for your side that was never interviewed? Do you feel like reviewing school or medical records was not included in the investigation and should have been? Do you just disagree with the GAL’s recommendation or do you believe they didn’t complete portions of the investigation that would have changed their recommendation?

Deposition of a Guardian ad Litem

Prior to your case going to trial, your attorney will likely want to take your GAL’s deposition. A deposition is sworn testimony taken out-of-court, in front of a court reporter. It is an opportunity for your attorney to examine the GAL under oath about their investigation.

Calling the Guardian ad Litem as a witness

If your case proceeds to trial, your attorney can put your GAL on the stand under oath to testify about their investigation and how they came to their conclusions in their report. It is another opportunity for the judge to consider that the recommendations of the GAL may not have considered the details that you think are important to making decisions regarding your child’s future.

Get a Custody Evaluator

A Custody Evaluator is a psychiatrist that can be appointed in a contentious divorce or family case to do even more in-depth investigation of the situation than the GAL has provided.

The Custody Evaluator can be appointed as either the court’s witness, and typically the judge will order the costs to be split in some manner between the parties, or as a witness for one of the parties, where the party requesting the evaluation will be responsible for the evaluator’s fees. Each side can have their own expert witness to present their own case and try to dispute or discredit the other side’s expert witness.

Custody evaluations are very expensive and time-consuming.

Settle Your Case by Agreement

Your Guardian ad Litem was appointed because of issues involving your children where you could not come to agreement with your opposing party. Sometimes, both parties are unhappy with the opinions of the GAL as to how they should split timesharing and decision-making and feel as though their parental rights are being usurped by a stranger. A GAL does not replace your attorney’s ability to continue negotiating with your opposing party to try to reach an agreement decided by the parents rather than the GAL. Once you’ve reached a compromise, the Guardian ad Litem’s recommendations to the court may no longer be relevant, as your litigation can come to an end.

Can I sue a Guardian ad Litem in Illinois?

A Guardian ad Litem has immunity from being sued by the parents of the children in cases where they are appointed so long as their actions were not illegal and were taken in the scope of doing their job, similar to the immunity of the judge.

“Guardians ad litem and court-appointed experts, including psychiatrists, are absolutely immune from liability for damages when they act at the court’s direction. [Citations.] They are arms of the court, much like special masters, and deserve protection from harassment by disappointed litigants, just as judges do. Experts asked by the court to advise on what disposition will serve the best interests of a child in a custody proceeding need absolute immunity in order to be able to fulfill their obligations `without the worry of intimidation and harassment from dissatisfied parents.’ [Citation.] This principle is applicable to a child’s representative, who although bound to consult the child is not bound by the child’s wishes but rather by the child’s best interests, and is thus a neutral, much like a court-appointed expert witness.” Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir. 2009).

If you have a serious disagreement with your GAL, you should also refrain from any harassing behavior towards the GAL, which is a misdemeanor in the state of Illinois.

“A person who, with intent to harass or annoy one who has served or is serving or who is a family member of a person who has served or is serving as a representative for the child, appointed under Section 506 of the Illinois Marriage and Dissolution of Marriage Act or Section 2-502 of the Code of Civil Procedure, because of the representative service of that capacity, communicates directly or indirectly with the representative or a family member of the representative in such manner as to produce mental anguish or emotional distress or who conveys a threat of injury or damage to the property or person of any representative or a family member of the representative commits a Class A misdemeanor.” 720 ILCS 5/32-4a

How can I make sure I make a good impression with my GAL?

Attorney Zach Townsend of Pro Legal Care LLC has served as a GAL in both Winnebago County and Boone County, IL court proceedings. As both a GAL and an attorney who has represented hundreds of parents in cases with GAL disputes, Attorney Townsend makes the following recommendations to all of his clients.

1. Treat the Guardian ad Litem with respect. Speak to the GAL and their office staff as if you are speaking directly to the judge.
2. Cooperate with the GAL investigation. Be responsive and communicative with your child’s GAL.
3. Show, don’t tell. Rather than calling your opposing party a liar, provide evidence of times they have been untruthful. Instead of claiming the other parent “never” follows the Parenting Plan, show the GAL your calendar where you have documented each time the other parent failed to appear for their scheduled time.
4. Do not coach your child. Your GAL is very experienced in this work and can immediately recognize if you are using your child to influence the investigation. Coaching a child in a child custody matter will reflect very negatively on you in the court system.

If my case has a Guardian ad Litem, do I need my own attorney?

The GAL in your case does not represent you and will not advocate for your interests, they represent your child’s best interests. If you feel like you need an advocate to help ensure that the final decision in your case will protect you and your family, you may want to retain a private attorney to represent you, though it is not required.