Articles Posted in Child Custody

One aspect of the divorce case I take seriously is managing the request to the judge for a guardian ad litem in a contested parenting dispute.  Sometimes, there are behavioral and psychological issues in a divorce with one of the parents, that can impact the ability of that parent to safely care for the child or children. A guardian ad litem (GAL) plays a crucial role in divorce cases, particularly when the interests of children are involved. Here’s how they typically assist the court:

1. Representing the Best Interests of the Child: The primary role of a GAL is to advocate for the best interests of the child or children involved in the divorce. They serve as the voice of the child in court proceedings, ensuring that their needs, wishes, and welfare are considered.
2. Investigation and Assessment: GALs conduct thorough investigations into the family dynamics, including the living conditions, relationships between the parents and the child, and any other factors that may impact the child’s well-being. This can involve interviewing the child, parents, clinicians, teachers, and other relevant parties, as well as reviewing relevant documents and records.

I received a call today from a potential client in Illinois whose partner/spouse left the State of Illinois and set up life with the minor children in another state.  As I look back on decades of my Family Law career, I have had a number of similar cases. Sometimes, when a marriage falls apart, a spouse takes the children out of state and goes “home” to where he or she grew up and has family locally. In this situation, sometimes the spouses will file a divorce case is two different states. How does the law handle and reconcile the fact that parents have filed in two states?  This is where the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) comes in: it is a nationally (except for Massachusetts) adopted statute that provides a uniform process for Courts to determine where the case should proceed.

1. Uniformity: Before the UCCJEA, each state in the US had its own laws regarding child custody jurisdiction. This lack of uniformity often led to conflicting custody orders and forum shopping, where parents would try to file for custody in a state they believed would rule in their favor. The UCCJEA provides consistent rules for determining which state has jurisdiction over child custody matters, promoting fairness and predictability in custody disputes across state lines.
2. Child Protection: The primary goal of the UCCJEA is to protect the best interests of the child. By establishing jurisdictional rules based on the child’s home state and prioritizing continuity and stability in custody arrangements, the UCCJEA aims to minimize the disruption and trauma that can result from custody battles.

Below is a synopsis of two new bills signed into law that affect Family Law practice.  HB4121 sets a minimum standard for GALs in terms of their obligation to interview the parents and the children.  Now, most of us would agree that a period of 90 days is too long, and that most competent GALs make a practice of meeting with the parents and children within days or weeks of the appointment of the GAL.  This legislation may be addressing a concern that some GALs ( and I have seen this in operation) can be quite dilitory about their work, and some simply do not accept that the role of a GAl involves competence and diligence.  In most cases, judges and lawyers know who the good GALs are, and those appointments are often made with this understanding in mind. However, there are cases that involve GALs who do competent work, but may not visit with the children as often as they might, and this issue then becomes an area for criticism when the case goes to trial. HB4121 sets a minimum standard, to which GALs either conform, or risk some sanction for failing to do so.

HB2741 is an important change. The IMDMA was amended in 2016 to allow the Court to appoint a clinician to perform therapy in a family law case, with certain underlying findings being made. The hitch has been for a few years that the therapy process and feedback from the clinicians was barred insofar as communication with a GAL was concerned. In my view, this placed the process of therapy into a difficult position where children were concerned, insofar as the GAL has a statutory duty to investigate all aspects of the child’s life to determine the custodial best interests of the child. Now, with this amendment, the GAL may do his/her work to the fullest extent by allowing the feedback from the clinician so long as the HIPAA and Illinois Mental Health Act provisions are followed.

IMDMA GALs