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:
- The wishes of each parent seeking
parenting time;
- The wishes of the child, taking into
account the child’s maturity and ability to express reasoned and independent
preferences as to parenting time;
- 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;
- Any prior agreement or course of
conduct between the parents relating to the caregiving function with respect to
the child;
- 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;
- The child’s adjustment to his or her
home, school, and community;
- The mental and physical health of all
individuals involved;
- The child’s needs;
- 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;
- Whether a
restriction on parenting time is appropriate;
- 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;
- The
willingness and ability of each parent to place the needs of the child ahead of
his or her own needs;
- The
willingness and ability of each parent to facilitate and encourage a close and
continuing relationship between the other parent and the child;
- The
occurrence of abuse against the child or other member of the child’s household;
- 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);
- 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
- 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.
