You had a pretty good idea of what happens in an Illinois divorce case. You and your spouse come to an agreement on all the issues. If you cannot agree, you present evidence to a judge who then rules on the issues.
When no agreement is reached you will be ready to present your evidence to the judge of what a kind, loving parent you are and how your child’s other parent has various personality disorders. Instead, the judge says, “This appears very contested. I’m going to appoint a Guardian Ad Litem?”
A third attorney with a crazy latin title then comes into your house, asks you and your children questions and calls up everyone you know. The Guardian Ad Litem (often referred to as a GAL) makes recommendations about your parenting decisions and parenting time which the judge adopts with little argument as final orders. Finally, you are expected to pay for this investigation and recommendation…which was completely against you and not based on the facts as you understand them.
Who is this Guardian Ad Litem? Why is the Guardian Ad Litem able to decide how you and your children’s lives will proceed? Can I sue a Guardian Ad Litem in Illinois for their poor investigation, poor recommendations and all the havoc they have caused in my life?
What Is A Guardian Ad Litem?
Family law judges in Illinois are BUSY! Family law judges can often have over 1000 domestic relations cases on their docket. There is no way a family law judge can adequately hear all the evidence which comprises a divorcing family’s day-to-day dynamic. So, a domestic relations judge will eagerly outsource that investigation to a reliable third-party, a Guardian Ad Litem.
“In any proceedings involving the support, custody, visitation, allocation of parental responsibilities, education, parentage, property interest, or general welfare of a minor or dependent child, the court may, on its own motion or that of any party, appoint an attorney…to address the issues the court delineates
Guardian ad litem. The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations. The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506.
The court will also decide which parent is to pay what share of the Guardian Ad Litem’s fees.
“Fees and costs. The court shall enter an order as appropriate for costs, fees, and disbursements, including a retainer, when the attorney, guardian ad litem, or child’s representative is appointed.” 750 ILCS 5/506(a-3)(b)
The Guardian Ad Litem then operates as kind of a private investigator/social worker/mediator.
“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)
If the Guardian Ad Litem cannot persuade the parties to come to agreement, the Guardian Ad Litem will issue recommendations and a report to the court.
“Guardian ad litem. The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations. The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)
What if the Guardian Ad Litem’s report is riddled with errors which the judge refuses to acknowledge? Can the Guardian Ad Litem be held responsible for their false accusations and/or lack of due diligence?
Can You Sue A Guardian Ad Litem?
Generally, Guardian Ad Litems are immune from being sued by the parents of their clients.
“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).
The level of immunity provided to a Guardian Ad Litem is the same level of immunity that a judge gets in the course of their job.
“A judge is absolutely immune from liability for acts committed while exercising the authority vested in him.” Grund v. Donegan, 298 Ill. App. 3d 1034 (1998)
The Illinois Supreme court stated that Guardian Ad Litems “who submit recommendations to the court on a child’s best interests are protected by quasi-judicial immunity.” Nichols v. Fahrenkamp, 2019 IL 123990
The Nichols case further cites that “common law affords defendant absolute immunity from suit related to his court-appointed duties as child representative.” Davidson v. Gurewitz, No. 2-15-0171, 7 (Ill. App. Ct. 2015)
Even if the Guardian Ad Litem acted dishonestly and maliciously, the Guardian Ad Litem will be immune from suit so long as the acts were within the scope of their job.
“[I]mmunity applies even when [someone with quasi-judicial immunity] is accused of acting maliciously and corruptly.” Harlow v. Fitzgerald, 457 U. S. 800, 815-819 (1982)
Only if the acts of a Guardian Ad Litem were outside of their role as Guardian Ad Litem can the Guardian Ad Litem be sued for those acts. This requires a court to “look to the particular act’s relation to a general function normally performed by a [Guardian Ad Litem].” Mireles v. Waco, 502 US 9 – Supreme Court 1991
Look to the Guardian Ad Litem’s duties to see if the Guardian Ad Litem exceeded the scope of those duties and, thus, be financially responsible for their actions.
“The…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.” Ill. Sup. Ct. R. 907(d)
“Whatever reasonable steps are necessary?” That’s probably everything. Although it is conceivable that you could questions the reasonableness and necessity of the Guardian Ad Litem’s actions in order to make open their liability.
Is your goal really to punish the Guardian Ad Litem or is your goal to get more time with your children?
If you want more time with your children no matter what the Guardian Ad Litem says don’t get mad…get even.
How To Challenge A Guardian Ad Litem’s Recommendations
The Guardian Ad Litem does not descend from Mt. Sinai with their report written on two stone tablets. You can ask the Guardian Ad Litem how they came to these conclusions.
“The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations.” 750 ILCS 5/506(a)(2)
Typically, this query is done in deposition in advance of an a trial in front of a judge.
When you disagree with a Guardian Ad Litem’s report, a better strategy is to simply appeal to a higher power…a psychiatrist.
“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)
A Guardian Ad Litem is a lawyer. Whatever opinions a lawyer has about your family are not expert opinions about the best interests of your children.
Opinions have weights. The more expert the opinion, the more likely it is for the judge to consider that opinion more carefully.
“[T]he weight to be assigned to an expert opinion is for the [judge] to determine in light of the expert’s credentials and the factual basis of his opinion.” Snelson v. Kamm, 787 NE 2d 796 – Ill: Supreme Court 2003
A psychiatrist’s credentials are inherently superior to a Guardian Ad Litem’s credentials…and the courts will weigh their opinions in accordance with their respective credentials.
If an Illinois family law judge adopts a Guardian Ad Litem’s recommendation over an expert psychiatrist’s recommendation…that Illinois family law judge is opening themselves up to an appeal for having not considered the manifest weight of the evidence correctly.
“Where a trial court makes factual findings, this court reviews those factual findings under the manifest-weight-of-the-evidence standard.” In re Guardianship of KRJ, 942 NE 2d 598 – Ill: Appellate Court, 4th Dist. 2010
“An order is against the manifest weight of the evidence only when an opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary and not based on the evidence.” In re Vanessa K., 2011 IL App (3d) 100545 – Ill: Appellate Court, 3rd Dist. 2011
If you thought Guardian Ad Litem’s fees were bad…wait until you see what a 604.10(b) psychiatrist charges for a report.
“The court shall order all costs and fees of the professional to be paid by one or more of the parties, subject to reallocation in accordance with subsection (a) of Section 508.” 750 ILCS 5/604.10(b)
A bad GAL report for you followed by a good 604.10(b) report for you will inevitably (if the funds allow for it) a third report to counter the 604.10(b) opinion.
“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)
This additional expert’s report will be paid for by the party requesting the 604.10(c) report.
“The party requesting the evaluation shall pay the evaluator’s fees and costs unless otherwise ordered by the court.” 604.10(c)
In theory, a middling 604.10(b) report could be followed by two competing 604.10(c) reports paid for by each party.
Harassing A Guardian Ad Litem In Illinois
If you googled “how to sue a Guardian Ad Litem in Illinois” you must be upset.
Do not start writing google reviews of the Guardian Ad Litem or take any other actions against the Guardian Ad Litem. Virtually anything said or done negatively against a Guardian Ad Litem is a crime.
“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
If you manage to prove that the Guardian Ad Litem’s actions were outside the scope of their duties and the Guardian Ad Litem is therefore subject to liability, then suing a Guardian Ad Litem will not be found to be harassment. You would be complaining in the proper venue: court.
“Illinois clearly favors recognition of an absolute privilege for statements made in a judicial proceeding.” Defend v. Lascelles, 500 NE 2d 712 – Ill: Appellate Court, 4th Dist. 1986