The Role of the Guardian Ad Litem in Divorce or Parentage Cases

What is a guardian ad litem?

A guardian ad litem is an attorney who is appointed to investigate the best interests of the child. In any proceeding involving the allocation of parental responsibilities, parentage, support, relocation, property interest, abuse or general welfare of a minor or dependent child, the court may appoint an attorney in one of several roles. The guardian ad litem is one option for the court. A guardian ad litem is not appointed in every case. The court will often appoint them if there is no agreement between the parties in child related issues.

The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interests 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.

Typically, the guardian ad litem will interview both parents and the children. They will visit each parent’s home and may as part of their investigation speak to teachers, the child’s pediatrician, relatives, and therapists. Each case is unique. However, the guardian ad litem should be familiar with all the issues and needs impacting the children in the case in order to prepare their report for the court.

What are the factors a court and a guardian ad litem consider in determining the best interests of the child?

Under 750 ILCS 5/602.7, when 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 the caregiving function with respect to the child;
  5. The interaction and interrelationship of the child with his or her parents and siblings with another person who may significantly affect the child’s best interest;
  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 parent’s residences, the cost and difficulty of transporting the child, the parent’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 at 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.

In my practice I make a point of reviewing the above factors with my clients in a discussion of allocation of parenting time and decision-making. If there is a dispute over these issues it is important that the client is aware of the best interest factors. This review is essential in preparing for mediation, settlement, or litigation if there is no agreement.

How does the court choose a guardian ad litem?

Each county has a list of attorneys who can function in this role. They have taken training in child development, family law and child related issues.

Who pays for the guardian ad litem?

The parents are responsible for the fees of the guardian ad litem. The guardian is required to submit an invoice and statement of their fees to the court. The Judge can order that the parties share the costs equally or apportion them between the parties in a fair and equitable manner.

Note: The GAL or guardian ad litem is not the only attorney that can be appointed in a disputed matter. The court can, as appropriate under the facts of the case, appoint an attorney as a child representative or attorney for the child. These roles differ from that of the guardian ad litem.         

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About MickiMoran

Micki Moran is the founding partner of The Child and Family Law Center, Ltd. She dedicates her practice to providing legal assistance to children and families who are in need of representation in the areas of special education, disability law, juvenile and young adult criminal law, abuse and neglect, guardianship and mental health issues. Micki's practice is founded on the principle that children and their families require and deserve excellent legal representation with a multidisciplinary approach that works with multiple systems of care and creates communities that support and improve the quality of all peoples' lives.
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