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.
What Is The Point Of Subpoenaing A Guardian Ad Litem’s File?
Once you have the Guardian Ad Litem’s file information, you can cross-reference the documentation with the Guardian Ad Litem’s report to seek inconsistencies that can later be brought to the court’s attention.
Furthermore, a Guardian Ad Litem’s file may prove that the Guardian Ad Litem did not fulfill their minimum duties.
“Minimum Duties and Responsibilities of Attorneys for Minor Children
(a) 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.
(b) Every child representative, attorney for a minor child and guardian ad litem shall have the right to interview his or her client(s) without any limitation or impediment. Upon appointment of a child representative, attorney for the child or guardian ad litem, the trial court shall enter an order to allow access to the child and all relevant documents.
(c) 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
Additionally, a 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
“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
If the Guardian Ad Litem did not investigate one of these crucial issues, the court should not be able to make an order modifying or establishing parenting time.
If there are inconsistencies, falsehoods, exculpatory information or failures to properly investigate, 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.
