DuPage Divorce Attorney: GALs and Child Reps in Child Custody Cases

Many of our family law cases necessarily involve the appointment by the Court of a GAL or Child’s Representative. Sometimes, there is some question or confusion about the role of the GAL vs. that of the Child’s Rep.

In Illinois family law, under the Illinois Marriage and Dissolution of Marriage Act (IMDMA), a Guardian ad Litem (GAL) and a Child’s Representative are two distinct roles appointed by the court to represent the best interests of a child in family law proceedings, such as custody (allocation of parental responsibilities) disputes. While both roles focus on the child’s best interests, their functions, authority, and approach differ significantly. Below is a detailed comparison: Guardian ad Litem (GAL)

• Definition: A GAL is an attorney or trained professional appointed by the court to investigate and advocate for the child’s best interests in a family law case. The GAL acts as the “eyes and ears” of the court, gathering information and making recommendations.
• Statutory Basis: Governed by 750 ILCS 5/506(a)(2) of the IMDMA.
• Functions:
  • Investigation: The GAL conducts a thorough investigation, which may include interviewing the child, parents, family members, teachers, counselors, and other relevant individuals. They may also review documents, such as school records or medical reports, and visit the child’s home.
  • Report to the Court: The GAL submits a written or oral report to the court with recommendations regarding the child’s best interests, including custody, parenting time, or other relevant issues. This report is advisory and not binding, but courts often give it significant weight.
  • Advocacy: The GAL advocates for what they believe is in the child’s best interests, which may not always align with the child’s expressed wishes.
  • Testimony: The GAL may testify in court as a witness, subject to cross-examination, about their findings and recommendations.
  • Neutral Role: The GAL does not represent the child directly as an attorney but serves as an independent investigator for the court. They do not have an attorney-client relationship with the child.
• Scope of Authority: The GAL’s role is primarily investigative and advisory. They do not have the authority to make legal decisions for the child or to direct the litigation strategy.

2. Child’s Representative

• Definition: A Child’s Representative is an attorney appointed by the court to act as the child’s legal advocate, representing the child’s best interests while also considering the child’s wishes (if the child is mature enough to express them). Unlike a GAL, the Child’s Representative functions more like the child’s attorney.
• Statutory Basis: Governed by 750 ILCS 5/506(a)(3) of the IMDMA.
• Functions:
  • Legal Advocacy: The Child’s Representative actively participates in the legal proceedings, advocating for the child’s best interests in court. They may file motions, present evidence, cross-examine witnesses, and engage in settlement negotiations.
  • Consideration of Child’s Wishes: Unlike a GAL, the Child’s Representative must take into account the child’s expressed preferences (if the child is capable of forming an opinion) when determining what is in the child’s best interests, though they are not bound by those wishes.
  • No Testimony: A Child’s Representative does not testify in court or submit a formal report, as they are an advocate, not a witness. Their role is to present arguments and evidence on behalf of the child’s best interests during the proceedings.
  • Attorney-Client Relationship: The Child’s Representative has a confidential attorney-client relationship with the child, meaning communications with the child are privileged (subject to certain exceptions, such as mandatory reporting of abuse or neglect).
  • Active Litigation Role: The Child’s Representative is more involved in the legal strategy and courtroom advocacy compared to a GAL, who primarily focuses on investigation and reporting.
• Scope of Authority: The Child’s Representative has broader authority to act as the child’s legal counsel, including making strategic decisions in the case, such as what evidence to present or what arguments to make.

Key Differences

Practical Differences in Function

• Approach to Advocacy: A GAL focuses on gathering facts and presenting an objective recommendation to the court, while a Child’s Representative actively litigates on behalf of the child, similar to how an attorney represents a client.
• Engagement with Child’s Wishes: A Child’s Representative is more likely to incorporate the child’s preferences into their advocacy, especially if the child is older and capable of reasoned decision-making, whereas a GAL prioritizes their own assessment of the child’s best interests.
• Courtroom Role: A GAL’s role is more passive in the courtroom, typically limited to presenting their findings, while a Child’s Representative is an active participant in hearings, negotiations, and trial strategy.
• Appointment Context: Courts may appoint a GAL when a thorough investigation is needed, especially in complex or high-conflict cases. A Child’s Representative may be appointed when the court believes the child needs a stronger legal advocate to represent their interests in litigation.

In summary, a Guardian ad Litem serves as an investigative arm of the court, providing recommendations based on their findings, while a Child’s Representative acts as the child’s legal advocate, actively participating in the case and considering the child’s wishes. Both roles aim to protect the child’s best interests, but their methods and scope of authority differ significantly. If you have questions about child custody issues, or how the appointment of a GAL or Child’s Rep affects your case, please feel free to contact Michael Roe for further discussion.