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What Is A Guardian Ad Litem Or Child Representative in Chicago, Illinois?
As you approach a Cook County Domestic Relations Courtroom you’ll notice a numbered list hung beside the courtroom door. That list will contain your case number, your name, your spouse’s name, and the names of a hundred other people whose cases are before the judge that day. And almost all of these cases will be listed as being scheduled for 9:30 AM.
Your divorce case encompasses your whole life: Who is picking the kids up and when; Who is to pay what bills; Who has the kids this Christmas…which is only a few weeks away. How can a judge accurately and effectively adjudicate all these issues when the judge has 50 couples scheduled from 9:30 AM to 11:30 AM?
If your case involves just money issues, the lawyers usually work through those issues via the process of discovery.
If your case involves children, Illinois judges outsource the investigation of the issues (as they relate to the children) to a Guardian Ad Litem or a Child Representative. Guardian Ad Litems will also referred to as G.A.L.s or GALs.
A Guardian Ad Litem or a Child Representative is an attorney who represents the best interests of the child. This representation usually is more about investigating what the situation at home is, reporting that situation to the court and making recommendations to the court based on their findings.
The Illinois Supreme Court Rule 907 provides for both the powers and the responsibilities of the Guardian Ad Litem and Child Representative.
“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.”
Again, it is important to recognize that the Guardian Ad Litem or the Child Representative is more of an investigator than a mediator of the children’s issues.
Appointment of a Guardian Ad Litem Or Child Representative
Either parent can request that the child or children have their own representative. Additionally, the court may appoint a representative for the child without a petition by either party.
“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 serve in one of the following capacities to address the issues the court delineates” 750 ILCS 5/506.
While the law does reference the “support [and] property interest” the Guardian Ad Litems and Child Representatives almost never get involved in financial issues between the parties.
The court has a duty to appoint a guardian ad litem “when a minor is without proper representation.” Roth v. Roth, 52 Ill. App. 3d 220, 226 (1977)
Most Cook County domestic relations judges require that the parties participate in mediation first before appointing a child representative.
The Difference Between a Guardian Ad Litem and a Child Representative
A Guardian Ad Litem’s responsibilities all lead to the preparation and presentment of a final report:
“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)
This Guardian Ad Litem’s final report will include a recommendation regarding the child’s schedule and which parent will make decisions for particular aspects of the child’s life. This report, in reality, will determine the judge’s final rulings in 90% of the cases.
The judge in the end makes the decisions. The 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).
A Child Representative does not issue a report. A Child Representative will still have strong opinions as to the child’s schedule and the parenting decision making. A Child Representative has express those opinions to the court like any other lawyer would for their client: with testimony and exhibits.
Because of the legal restrictions on a child representative in presenting their opinion, Guardian Ad Litems are appointed more frequently than Child Representatives.
In most cases, the Guardian Ad Litem doesn’t even issue a report because the Guardian Ad Litem negotiates a final allocation of parenting time and parenting responsibilities. The parents reaching an agreement as to the children’s issues makes presenting a report to the judge moot.
Picking the Guardian Ad Litem or Child Representative
Often the attorneys for both parties come to an agreement on which Guardian Ad Litem or Child Representative will be appointed. The lawyers then make that recommendation to the judge who typically accepts the agreed recommendation.
The Guardian Ad Litem or Child Representative has such a critical role in a paternity case or a divorce with children. I keep a keen eye on the reputations of potential Guardian Ad Litems or Child Representatives so I can advocate that the child get the best possible representation (admittedly, to my own client’s benefit).
Often the lawyers don’t get to pick a Guardian Ad Litem or Child Representative. Some judges pick their own Guardian Ad Litems and Child Representatives based on their previous experiences with that lawyer.
Paying For the Guardian Ad Litem Or Child’s Representative
“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 judge usually requires in the order appointing the Guardian Ad Litem or Child Representative to have a clause regarding who will pay what for the Guardian Ad Litem or Child Representative’s retainer. At the end of the case, the Guardian Ad Litem or Child Representative will then petition to have the balance of their fees paid by the parties.
“In determining the proper allocation of the fees and costs of the child representative, the trial court considers the total circumstances of both parents, including their financial resources and relative ability to pay. The facts must establish one party’s greater ability to pay and the other party’s inability to pay the fees” In re Marriage of Patel, 2013 IL App (1st) 112571
A “court’s award [can be] based in part upon its view that [one party’s] actions were the cause of a substantial portion of the litigation.” In re Marriage of Kramer, 211 Ill. App. 3d 401, 413 (Ill. App. Ct. 1991)
There is a much more affordable alternative to private Guardian Ad Litems and Child Representatives in the office of the Cook County Public Guardian. The Cook County Public Guardian has very strict requirements of who they represent.
Pursuant to the website of the Office Of The Cook County Public Guardian:
“The Public Guardian accepts appointment as child representative, and has the following guidelines for acceptance of cases in the division:
1. The parties, including the children, should reside in Cook County.
2. The parties must have attempted mediation or emergency intervention. This allows the parties a chance to resolve the issues prior to adding the expense of a lawyer for the child.
3. At least one party must be represented by counsel. This enables the office to concentrate more fully on a number of cases, rather than one or two cases where the parties are unrepresented, and therefore require more assistance.”
The Cook County Public Guardian only acts as a Child Representative. Additionally, they only represent parents where both parents live in Cook County.
If a Guardian Ad Litem or a Child Representative gets appointed in your case that is likely three attorneys total in your case. Three attorneys are expensive. Especially if only one person in the former relationship was working. In that case, the working spouse has to pay the attorney, the spouse’s attorney and the children’s attorney. If there are marital assets, those assets will be applied to pay for the lawyers’ fees.
Unfortunately, if there is a custody, parenting time, or parenting decision-making disagreement, a Guardian Ad Litem or Child Representative is almost always required to resolve the situation.
Changing the Guardian Ad Litem or Child Representative?
Once appointed, you cannot change your Guardian Ad Litem or Child Representative. To request a new Guardian Ad Litem or Child Representative you’d have to prove they did something horribly unconscionable. The types of people that become Guardian Ad Litems and Child Representatives may make decisions you disagree with but they do not make overtly unethical decisions.
After the case is over, a parent can’t even sue or threaten to sue the Guardian Ad Litem or Child Representative because you’d have no standing. Guardian Ad Litems and Child Representatives owe a duty to the kids, not to the parents.
When a court-appointed individual acts within the scope of his or her appointment to give advice to the court regarding the best interest of the minor, for use in the court’s decision-making process, that individual must be cloaked with the same immunity as the court. Heisterkamp v. Pacheco, 2016 IL App (2d)150229, 47 N.E.3d 1192
I bring up how untouchable Guardian Ad Litems and Child Representatives are to underscore the most important point about Guardian Ad Litems and Child Representatives: you have to get on their good side from the beginning.
If you believe your divorce or parentage case is going to require a Guardian Ad Litem or a Child Representative contact my Chicago law office today to speak to an experienced family law attorney.