If you are asking if you can change, fire or be done with your current Guardian Ad Litem or Child Representative in your Illinois divorce you already know exactly what a Guardian Ad Litem or Child Representative is and does…and you are NOT happy about it.
While you may not appreciate the Guardian Ad Litem or Child Representative’s actions, opinions or recommendations…there is not much you can do about it.
Guardian Ad Litems and Child Representatives can be removed from an Illinois divorce case but only with good cause.
The only good causes to remove a Guardian Ad Litem or Child Representative is if they are in violation of the ethical rules or are not fulfilling their proscribed duties.
Guardian Ad Litems’ and Child Representatives’ Ethical Duties During An Illinois Divorce.
“Every child representative, attorney for a child and guardian ad litem shall adhere to all ethical rules governing attorneys in professional practice, be mindful of any conflicts in the representation of children and take appropriate action to address such conflicts.” Ill. Sup. Ct. R. 907(a)
Guardian Ad Litems and Child Representatives are licensed attorneys. They are bound by the same rules all Illinois attorneys are bound by. The ethical rules that govern attorneys are as follows:
“It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.(d) engage in conduct that is prejudicial to the administration of justice.(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.” Rule 8.4 – Misconduct, Ill. Sup. Ct. R. 8.4
If a Guardian Ad Litem or Child Representative is engaging in “dishonesty, fraud, deceit or misrepresentation” that is a basis to ask the court to remove them…but you have to prove it.
More difficult is proving that a Guardian Ad Litem or Child Representative has “engaged in conduct that is prejudicial to the administration of justice.” One man’s prejudicial conduct is another man’s thoughtful recommendation to the judge.
A more fruitful complaint would be that the Guardian Ad Litem or Child Representative simply is not doing their job.
The duties of a Guardian Ad Litem or Child Representative are clearly stated in Illinois Supreme Court Rule 907
“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)
Additionally, an Illinois divorce or parentage court cannot enter a parenting order “where section 602.7 best interest factors were not fully investigated by the GAL or considered appropriately by the circuit court.” In re Marriage of Gualandi, 2024 IL App (5th) 240238
The best interest factors that must be investigated by the GAL are as follows:
“In determining the child’s best interests for purposes of allocating parenting time, the court shall consider all relevant factors, including, without limitation, the following:
(1) the wishes of each parent seeking parenting time;
(2) the wishes of the child, taking into account the child’s maturity and ability to express reasoned and independent preferences as to parenting time;
(3) the amount of time each parent spent performing caretaking functions with respect to the child in the 24 months preceding the filing of any petition for allocation of parental responsibilities or, if the child is under 2 years of age, since the child’s birth;
(4) any prior agreement or course of conduct between the parents relating to caretaking functions with respect to the child;
(5) the interaction and interrelationship of the child with his or her parents and siblings and with any other person who may significantly affect the child’s best interests;
(6) the child’s adjustment to his or her home, school, and community;
(7) the mental and physical health of all individuals involved;
(8) the child’s needs;
(9) the distance between the parents’ residences, the cost and difficulty of transporting the child, each parent’s and the child’s daily schedules, and the ability of the parents to cooperate in the arrangement;
(10) whether a restriction on parenting time is appropriate;
(11) the physical violence or threat of physical violence by the child’s parent directed against the child or other member of the child’s household;
(12) the willingness and ability of each parent to place the needs of the child ahead of his or her own needs;
(13) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child;
(14) the occurrence of abuse against the child or other member of the child’s household;
(15) whether one of the parents is a convicted sex offender or lives with a convicted sex offender and, if so, the exact nature of the offense and what if any treatment the offender has successfully participated in; the parties are entitled to a hearing on the issues raised in this paragraph (15);
(16) the terms of a parent’s military family-care plan that a parent must complete before deployment if a parent is a member of the United States Armed Forces who is being deployed; and
(17) any other factor that the court expressly finds to be relevant.” 750 ILCS 5/602.7
The failure to live up to these duties and properly investigate the factors may result in a Guardian Ad Litem or Child Representative being replaced…but will probably just result in the Guardian Ad Litem or Child Representative actually performing these duties.
Still, replacement of a Guardian Ad Litem or Child Representative is theoretically possible.
“If the interests of minors are not adequately represented, it is the duty of the trial court to take such a measure. ” In re Marriage of Strauss, 183 Ill. App. 3d 424, 427 (Ill. App. Ct. 1989)
A Guardian Ad Litem’s or Child Representative’s failure to fulfill their duties can result in “the circuit court…consider[ing] appointing a new GAL that will take reasonable steps as necessary to investigate fully the facts of this case, obtain all information pertaining to those issues affecting the children, and make appropriate recommendations in order to serve the best interest of the children. Alternatively, if the current GAL remains, his report should be updated after taking all necessary and reasonable steps to complete the investigation of the facts in this matter in order to serve the best interests of the children.” In re Marriage of Gualandi, 2024 IL App (5th) 240238
I have never seen a Guardian Ad Litem or Child Representative involuntarily removed from their role.
If you think you didn’t like the Guardian Ad Litem or Child Representative’s recommendations before your motion to remove them…wait until the motion is denied and they are still on your case.
How To Circumvent The Guardian Ad Litem or Child Representative’s Recommendations.
You cannot get rid of the Guardian Ad Litem or the Child Representative in your Illinois divorce case…but you can drown out their opinion with a better one.
A Guardian Ad Litem or a Child Representatives are attorneys. They are not experts in what constitutes the “best interests of the child.” Guardian Ad Litems and Child Representatives can gather evidence they believe that will suggest what is in the best interests of the child and Guardian Ad Litems can make recommendations but those recommendations do not (or should not) have the weight of an expert’s recommendation.
You can ask the court to appoint a psychologist/psychiatrist who specializes in children’s issues.
“The court may seek the advice of any professional, whether or not regularly employed by the court, to assist the court in determining the child’s best interests.” 750 ILCS 5/604.10(b)
That expert’s advice will be in a written report and automatically admitted into evidence.
“The advice to the court shall be in writing and sent by the professional to counsel for the parties and to the court not later than 60 days before the date on which the trial court reasonably anticipates the hearing on the allocation of parental responsibilities will commence. The writing may be admitted into evidence without testimony from its author, unless a party objects.” 750 ILCS 5/604.10(b)
It is hard to imagine that a judge wouldn’t give more weight to this expert’s opinion than to a Guardian Ad Litem’s opinion (and a Child Representative cannot even enter their opinion as evidence).
Of course, if the report of the court’s expert witness’s report is not to the liking of either parent, an expensive battle of experts will commence.
“In a proceeding to allocate parental responsibilities or to relocate a child, upon notice and motion made by a parent or any party to the litigation within a reasonable time before trial, the court shall order an evaluation to assist the court in determining the child’s best interests unless the court finds that an evaluation under this Section is untimely or not in the best interests of the child.” 750 ILCS 5/604.10(c)
One or both parents can request their own reports from their own experts…but they have to pay for their own experts.
“The party requesting the evaluation shall pay the evaluator’s fees and costs unless otherwise ordered by the court.” 604.10(c)
Each expert will cost between $ 7,500 and $ 20,000.
The Guardian Ad Litem’s report and the Child Representative’s independent evidence will be a but a drop in the ocean of professionals’ reports.
Finally, a proper cross-examination will render the Guardian Ad Litem’s report moot. Furthermore, if the Guardian Ad Litem makes any recommendation, oral or written, the Guardian Ad Litem is IMMEDIATELY subject to your cross-examination. A Guardian Ad Litem’s “arbitrary recommendations based on ex parte evidence from witnesses without cross-examination, [is] a clear violation of due process of law. ” In re Marriage of Bates, 212 Ill. 2d 489, 514 (Ill. 2004)
The Guardian Ad Litem’s report or the Child Representative’s evidence and arguments are NOT determinative. Neither are the parenting evaluator’s reports. Your Illinois divorce judge “is the ultimate fact finder in a child custody case, not the expert witness.” In re Marriage of Saheb & Khazal, 377 Ill. App. 3d 615, 628 (2007).
How To Really Get A New Guardian Ad Litem Or Child Representative In An Illinois Divorce
The only way to get a new Guardian Ad Litem or Child Representative in an Illinois divorce is to let them finish their job.
After the Guardian Ad Litem’s or Child Representative’s recommendations have been made, adopt the recommendations that you must in a final settlement and enter your Allocation Of Parenting Time And Parental Responsibilities with the court.
Attach a separate order discharging the Guardian Ad Litem or Child Representative.
Now, file a motion to modify whatever you disagreed with the Guardian Ad Litem or Child Representative about.
“Parenting time may be modified at any time, without a showing of serious endangerment, upon a showing of changed circumstances that necessitates modification to serve the best interests of the child.” 750 ILCS 5/610.5(a)
The Guardian Ad Litem or Child Representative has been discharged and will not be reappointed to your case until ordered by court…upon which you will hoot, holler and stomp in furious objection. Furthermore, the Guardian Ad Litem or Child Representative will probably be so sick of you that they will not want to be involved in your case in the future.
Suggest to the judge the appointment of a new Guardian Ad Litem or Child Representative so the case can get a “fresh start.”
Better yet, insist on a Child Representative so you can have more control over the evidence presented.
But, do not be surprised if the same dynamic happens with the new Guardian Ad Litem or Child Representative. Old wine tastes the same in a new bottle.
Suing A Guardian Ad Litem Or Child Representative After An Illinois Divorce
You hate the Guardian Ad Litem or Child Representative. How could they do this to you and your children!
Sorry, but get over it. You have no recourse against a Guardian Ad Litem or Child Representative for them doing their job.
You certainly cannot sue a Guardian Ad Litem or Child Representative.
“[T]he common law affords a court-appointed child representative absolute immunity from suit related to his court-appointed duties.” Davidson v. Gurewitz, No. 2-15-0171, 5 (Ill. App. Ct. 2015)
“The Supreme Court has recognized that the common law provides for absolute immunity for judges, and the Seventh Circuit Court of Appeals (hereinafter, the Seventh Circuit) has held that guardians ad litem and child representatives are entitled to the same absolute immunity because they are “arms of the court.” Vlastelica v. Brend, 352 Ill. Dec. 791, 796 (Ill. App. Ct. 2011)
“Guardians ad litem and court-appointed experts, including psychiatrists, are absolutely immune from liability for damages when they act at the court’s direction….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. 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 even complain about a Guardian Ad Litem or a Child Representative. Complaining is annoying. Annoying Guardian Ad Litems and Child Representatives is a crime in 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
A class A misdemeanor can carry a possible jail sentence. “The sentence of imprisonment shall be a determinate sentence of less than one year.” 730 ILCS 5/5-4.5-55
The Guardian Ad Litem or Child Representative is just another lawyer in the case. Maybe the lawyer that’s causing problems in your case isn’t the Guardian Ad Litem or Child Representative at all. Your lawyer should be outlawyering your spouse’s lawyer…and the Guardian Ad Litem or Child Representative. Contact my Chicago, Illinois family law firm to talk about who really needs to get replaced in your Illinois divorce.
