Before you walk into a Cook County Domestic Relations Courtroom you will see a list outside the courtroom. That list will have your name, your spouse’s name, and the names of a hundred other people that the judge will address that day.
Your divorce or paternity case is your entire life! How is the judge going to accurately assess and discern the issues when they have to get through 50 couples from 9:30 AM to 11:30 AM?
The answer is, if you have kids, the judges outsource the investigation of the issues to a Guardian Ad Litem or a Child Representative. Guardian Ad Litems are also referred to as G.A.L.s or GALs.
A Guardian Ad Litem or a Child Representative is a third attorney who represents the best interests of the child. Both a Guardian Ad Litem and Child Representative investigate the issues of the case as they relate to the child.
The Illinois Supreme Court Rule 907 outlines 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.”
As you can see, the Guardian Ad Litem and the Child Representative is more of an investigator and then mediator of the issues with the child(ren).
How Does a Guardian Ad Litem Or Child Representative Get Appointed?
Either mom, dad, or the court itself can request that the child or children have their own representative.
“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 statue includes “support [and] property interest” the Guardian Ad Litems and Child Representatives almost never get involved in financial issues between the parties.
Most judges require that the parties undergo mediation first before appointing a child representative.
What’s the difference between a Guardian Ad Litem and a Child Representative?
A Guardian Ad Litem’s duties all build up to their issuance 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 final report will include a recommendation as to the child’s schedule and custody. This report, in reality, will determine the judge’s final rulings in 90% of the cases.
A Child Representative doesn’t get to issue a report. A Child Representative has to build a case on behalf of their client (the child) like any other lawyer would for a client: with testimony and exhibits.
Because of this limitation, all of the parties almost always choose to appoint a Guardian Ad Litem in lieu of a Child Representative.
Why does a Child Representative even exist? It’s supposedly cheaper but, personally, I have no idea.
In over half the cases, the Guardian Ad Litem won’t even issue a report because they’ll have helped the two sides negotiate a final allocation of parenting time and parenting responsibilities. The two sides coming to an agreement makes the whole point of presenting a report to a judge moot.
Who picks the Guardian Ad Litem or Child Representative?
Often the attorneys for both parties come to an agreement on who the Guardian Ad Litem or Child Representative is and then they make that recommendation to the judge.
The Guardian Ad Litem or Child Representative is such a crucial role that I always fight for who I think can best represent the children (admittedly, to my own client’s benefit).
Some judges pick their own Guardian Ad Litems and Child Representatives based on their previous experiences with that lawyer.
Who Pays 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 first order who will pay what for the Guardian Ad Litem or Child Representative’s retainer. The Guardian Ad Litem or Child Representative is then awarded their final fees at the end of the case.
There is a cheaper alternative in the office of the Cook County Public Guardian. They have very strict requirements of who they represent BUT they only act as Child Representatives.
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:
- The parties, including the children, should reside in Cook County.
- 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.
- 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.”
A third attorney is expensive. Especially if you’re the only person in the former relationship with a job. Now, you’re paying for your attorney, your spouse’s attorney and the children’s attorney.
Unfortunately, if there is a custody dispute, a Guardian Ad Litem or Child Representative is required.
How do I change my Guardian Ad Litem or Child Representative?
Bad news, you cannot change your Guardian Ad Litem or Child Representative. It never ever happens. You’d have to prove they did something horribly unconscionable and, honestly, that’s not going to happen.
You can’t even sue or threaten to sue the Guardian Ad Litem or Child Representative because you’d have no standing. They owe a duty to the kids, not to you.
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 say this to underscore the most important point about Guardian Ad Litems and Child Representatives: you have to get on their good side from the beginning.