In some custody cases, a Guardian Ad Litem (GAL) is appointed to add a non-biased opinion on the matter. It is important for both parties to understand the GAL’s job, focus, and the weight of his/her decision before deciding whether to ask for this form of advocacy in a child custody case.
Guardian Ad Litem
In custody cases, a Guardian Ad Litem is not automatically appointed. A GAL is only appointed if one of the parties asks the court for the appointment of a GAL.
Once appointed, it is the job of the GAL to investigate the custody situation and uphold the best interests of the child. The GAL will speak with all parties involved in the child’s life, including, but not limited to, parents, grandparents, siblings, aunts, uncles, teachers, school administrators, doctors, etc. Most importantly, the GAL will speak to the child.
The GAL is considered an advocate for the child’s best interest. This does not mean that the GAL is the child’s attorney or represents the child in court; the GAL is more the eyes and ears of the court. The GAL will take into consideration the wishes of the child, but does not have a duty to make a recommendation that is in sync with the child’s wishes.
Once the GAL has completed his/her evaluation, the GAL will make a report to the court as to what the GAL believes is the child’s best interest. The GAL may also testify at a custody hearing, as well as call witnesses at the hearing if the GAL believes neither party is calling all witnesses necessary for the court to make its decision. The GAL may also cross-examine the witnesses that either attorney calls at the hearing.
The court takes all information under consideration when making a custody decision. There is no set weight that the court has to give the GAL’s report. However, knowing that the GAL is unbiased, the court may give the GAL’s report more weight than that of interested parties or witnesses.
GAL vs. Other Child Representatives
Under Illinois Law, the court can also appoint an attorney for the child or a child representative. It is important to understand the separate jobs of these representatives.
An attorney for the child represents the rights of the child as the parents’ attorney represents their interests. In order for this relationship to work, the child must be old enough to effectively communicate with the attorney without a parent being present. The attorney/client relationship for an attorney for the child is the same as that of any attorney/client. Therefore, the attorney cannot communicate with the parents what the child has disclosed. The attorney for the child can call witnesses at the hearing, but cannot be a witness due to attorney/client privilege. This attorney is charged with upholding the wishes of their client, not the best interest of the child.
A child representative is a hybrid of the GAL and the attorney for the child. The child representative holds the same attorney/client privilege as the attorney for the child. However, the child representative gives a recommendation to the court as a GAL would. The child representative is not bound to give a recommendation in sync with the child’s wishes, but is also not bound by the best interest of the child statute. Further, as the child representative shares attorney/client privilege, the child representative is not able to testify in court as to how he/she came to her decision.
Understanding the legal roles of a GAL, attorney for the child, and a child representative, and knowing whether to ask for one of these advocates, is confusing and stressful. When heading into a custody battle, it is important to consult with an attorney to make sure that both your rights and your child’s rights and interests are upheld. Please contact the DuPage County family law attorneys at the Abear Law Offices. We have offices in Wheaton, St. Charles, Naperville, Warrenville, and Chicago, Illinois, and we are happy to answer any questions regarding child custody.