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Posted on February 3, 2024

Subpoenaing A Guardian Ad Litem’s File In An Illinois Divorce

There is probably no more thankless job than being a Guardian Ad Litem (GAL) in an Illinois divorce.

A GAL is the ‘eyes and ears’ of the court.” In re Marriage of Wycoff, 266 Ill. App. 3d 408, 415 (1994)

Beyond eyes and ears, Guardian Ad Litems also have mouths…and parents often do NOT like what a Guardian Ad Litem has to say.

Inevitably, one or both sides become furious with what they perceive to be a court appointed interloper. Parents in the Illinois divorce process research how to change Guardian Ad Litems, not pay Guardian Ad Litems and even sue Guardian Ad Litems. Unfortunately for those parents, you cannot do any of those things…but you can subpoena a Guardian Ad Litem’s file.

The rules of evidence keeps evidence of unreliable, irrelevant and prejudicial information is not considered by the judge. The rules of evidence ensure that anything the court considers has an “indicia of reliability.” Ohio v. Roberts, 448 US 56 – Supreme Court 1980

Everyone else in an Illinois divorce court is bound by the rules of evidence.

A Guardian Ad Litem, however, is not bound by the rules of evidence.

“In discharging his or her duty, the GAL will review or consider all kinds of information regarding the child, both admissible and inadmissible at trial. Such information assists the GAL in determining the existence of problems that might cause the child psychological or physical harm. We fail to see any prejudice where the GAL listens to information that may be inadmissible at trial.” In re Marriage of Karonis, 296 Ill. App. 3d 86, 91 (Ill. App. Ct. 1998)

A Guardian Ad Litem can consider any damned thing when making their report and recommendations to the judge. Probably the only way to attack the Guardian Ad Litem’s report and recommendation is to attack the facts it is based on. The only way to get those facts is to subpoena the Guardian Ad Litem’s file.

“[A] guardian ad litem under the Marriage Act is not an “advocate”” Nichols v. Fahrenkamp, 442 Ill. Dec. 444, 450 (Ill. 2019)

Therefore, you cannot issue a notice to produce or interrogatories to a guardian ad litem. You must use discovery methods only applicable to a non-party.

“When a party seeks the production of an item from a nonparty, it must issue a subpoena to that party.” Carlson v. Jerousek, 2016 IL App (2d) 151248, ¶ 72

Subpoenas usually mean that a person is commanded to go to court.

A subpoena is ”a writ or order commanding a person to appear before a court or other tribunal” Black’s Law Dictionary (11th ed. 2019)

In Illinois, subpoenas can also mean a formal request for documents from a non-party.

“[S]ubpoenas may be issued by an attorney admitted to practice in the State of Illinois who is currently counsel of record in the pending action. The subpoena may command the person to whom it is directed to produce documents or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted under these rules” Ill. Sup. Ct. R. 204(a)(1)

A subpoena to a Guardian Ad Litem should include a rider that requests the following:

SUBPOENA RIDER TO GUARDIAN AD LITEM

In regards to this Subpoena the following applies:

Mother is Wilma Flintstone

Father is Fred Flintsone

Child is Pebbles Flintstone

1. A complete copy of your entire file related to your GAL appointment in The Marriage of Flintstone, Cook County case no. 24 D 1234 including, but not limited to, the following:

2. Copies of all videotapes and audiotapes recorded during any and all individual and joint interview sessions with Mother, Father, and/or Children, any and all collateral witnesses, any and all family members, and any other individuals;

3. All interview and session notes from each and every individual and joint interview and session (whether office or telephonic) of each party, collateral witness, and adjunct professional;

4. All questionnaires and intakes sheets completed by Mother, Father, Children, each and every collateral witness, each and every family member or any others;

5. All documents, affidavits and information submitted by Father, on behalf of Father, and/or by counsel for Father;

6. All documents, affidavits and information submitted by Mother, on behalf of Mother, and/or by counsel for Mother;

7. All documents and information submitted by Children, including a copy of each picture drawn by Children;

8. All documents, data, records, correspondence, emails, facsimiles, telephone notes, session notes, text messages and information submitted by or pertaining to any and all collateral witnesses and family member, whether or not reviewed and/or relied upon in your written report, including, but not limited to doctors, experts, neighbors, other persons.

9. All collateral records and data received from any and all other adjunct professionals and collateral sources;

10. All correspondence, emails, text messages, documents (with attachments), notes and memoranda from, to, or between any source including but not limited to Father, Mother, counsel for the parties, adjunct professionals, collateral witnesses, family members, and any other individuals;

11. Copies of all releases and authorizations for records and in formation signed by each party;

12. Copies of all drafts of your written report, prior to the preparation of your final written report.

13. An affidavit that production made in response to this request is complete.

Once you have this information, you can cross-reference the documentation with the Guardian Ad Litem’s report. If there are inconsistencies, falsehoods or exculpatory information (and I guarantee that there will be) you can bring that information to the court’s attention via cross-examination of the Guardian Ad Litem.

“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)

In reality, you will want to depose the Guardian Ad Litem in advance of any cross-examination so you can adequately explore the differences between the evidence the Guardian Ad Litem relied upon and the conclusions the Guardian Ad Litem came to.

Subpoenaing a Guardian Ad Litem’s file is truly your only defense against an adverse Guardian Ad Litem’s report. If you would like to subpoena a Guardian Ad Litem’s file, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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