It is not uncommon in divorce cases for each party to retain their own attorney for legal advice and representation through the process. Concerns regarding division of property, spousal support and arrangements for the couple’s children all need to be addressed and eventually resolved. Both sides typically have their own beliefs as to how the agreements should be established, often at odds with those of their spouse. In many cases, litigation is necessary.
While they can be difficult, issues related to property and spousal support primarily affect the spouses. Children, however, can easily be caught in the middle of contentious custody, visitations, and support battles between divorcing parents. Emotions such as stress and anger can sometimes cause the adult to unintentionally place their own interests above those of the children. In extreme cases, one spouse may even try to use the children as leverage against the other. If the court recognizes the well-being of a child is being minimized by the parents or altogether ignored, the court may appoint an attorney as Guardian ad Litem (GAL) to represent the child’s best interests.
Illinois law requires a GAL to be an attorney, and, to a limited degree, the GAL may act as such for the child. The GAL, however, does much more, and due to specific training and certification requirements, may be “best described as both pro se party and independent expert witness.” As a pro se party, the GAL can file pleadings and motions, call and depose witness, and present arguments before the court, which allows the child’s interests to be represented in all proceedings.
Despite the benefits that legal advocacy can provide, it is as an expert witness that a Guardian ad Litem may best serve the child’s interest. The law provides the GAL powers of investigation to establish the child’s best interest based on the facts of the case. The GAL may speak with the child, parents, and other family members, study the family’s situation, pattern, and legal filings. After consideration of all available information, the GAL is expected to prepare recommendations, which, based on the GAL’s standing as an expert witness and extension of the court, may be presented as testimony. While it is not required to be entirely evidence-based, the testimony is expected to remain within the scope of the GAL’s training and experience. Illinois law does permit the cross-examination of the GAL regarding any information submitted to the court, similar to any other witness.
It is important to realize, though, that the GAL is not actually the child’s attorney, but essentially an extension of the court and as such, attorney-client privilege between the GAL and the child is not recognized. However, notes made during the investigation stage or while preparing to testify are not usually made available to the parents or their attorneys. The parents and attorneys obviously have the right to challenge the information provided by the GAL, but since the GAL is a witness, courtroom procedure already allows the opportunity to do so.
In any proceeding in which a Guardian ad Litem testifies, the recommendation is expected to be carefully considered by the court. Since the court is not obligated to appoint a GAL, doing so inherently recognizes that the GAL’s opinion is a necessary addition to the case. As such, the GAL is in a unique position to represent the needs and well-being of the child.
If an Illinois court has appointed a Guardian ad Litem for your child, or you believe the court should appoint one, our attorneys want to help you. One call to an experienced DuPage County family law attorney can get you the legal counsel you need to do what is best for your family situation.