Guardian Ad Litem Frequently Asked Questions I Illinois Family Law and Guardianship FAQ

October 1st, 2018

In this article, we will answer frequently asked questions about guardian ad litems, including:

• Who provides oversight to the GAL?
• Who manages the GAL assignments and caseloads?
• Who evaluates the GAL’s performance (competency, bias, efforts, timeliness, etc.)?
• What recourse does a party have for an underperforming or inept GAL?

A guardian ad litem is an attorney appointed to represent and report to the court regarding the best interests of a child when custody or other parenting issues are involved in a domestic relationship case or of a child or disabled adult in a guardianship case. For some foundational information about guardian ad litems, check out our articles: Guardian Ad Litems in Illinois Child Custody Cases Explained and Guardian Ad Litems in Illinois Guardianship Cases Explained.

Who Provides Oversight to a Guardian Ad Litem and Who Manages GAL Assignments?

The first two questions, “Who provides oversight to the GAL?” and “Who manages the GAL assignments and caseloads?” can be answered with a relatively similar explanation. Guardian Ad Litems are appointed by the judge handling the case, thus making the GAL an officer of the court. Each county usually maintains a list of preferred GALs.

According to Illinois Supreme Court Rules regarding GAL appointments, the GAL must file a written appearance with the court upon accepting the appointment, in which the GAL would then receive copies to all of the pleadings involved in the case. The GAL is required to be present at all court proceedings, unless he or she receives explicit instruction that their attendance is not required.

The GAL assignments generally follow a similar proceeding. There’s typically a “home-study” in which the GAL schedules at least one visit to the child’s residence to meet and speak with those living there. Sometimes, a GAL may make an additional one or more visits with each parent and the child.

After being appointed to a case, most GALs send a questionnaire to each party requesting information (facts and issues) that each party believes are pertinent to the case and their argument, especially in regards to custody and visitation rights to the child. The parents of the child may also identify third parties, such as other relatives, teachers, counselors, neighbors or others with information on the child’s welfare, that the GAL would then conduct an interview with.

A guardian ad litem’s job is to investigate the case objectively and to be an expert witness providing the judge with a recommendation with findings that support what’s in the best interest of the child(ren) involved in the case. Many judges have built long-lasting relationships with the guardian ad litems they appoint and trust their recommendations are a result of a thorough investigation.

Who Evaluates the GAL’s Performance?

‍‍As briefly discussed, a GAL’s duties include reading and understanding the copies of the pleadings of the case, conducting home-study interviews with the child, parents and other relevant third parties, attending all court proceedings, and providing a written recommendation to the judge based on their objective investigation. There isn’t necessarily a formal evaluation process of how a guardian ad litem carries out his or her duties. However, with that being said, there are some grounds in which a GAL could be removed from a case and the judge and/or court appoints a new GAL.

If there’s clear evidence that a guardian ad litem possesses a bias or prejudice concerning the case, or has some type of conflict of interest, he or she would be removed from the case upon motion by either party.

Also, if either party provided the GAL with information the party believed to pertinent to the case (such as in a questionnaire mentioned earlier), and it is evident in the recommendation that the GAL completely disregarded this information, he or she could be potentially removed from their position on the case.

Additionally, if the GAL fails to interview all witnesses identified by a party, and then takes a position adverse to that party, the GAL could potentially be removed from the case.

What Recourse Does a Party Have for an Under-performing or Inept GAL?

If a guardian ad litem does not fulfill his or her duties, or if either party believes the GAL is unfit to be involved in the case, a party can file a petition to remove the GAL. Along with filing the petition, the party must include their reasoning for the GAL’s removal. This could include evidence of a bias, conflict of interest, or failure to interview all witnesses as mentioned earlier.

It is important to note that it is rare that a GAL can be removed from the case based on bias or prejudice. This is because proving a prejudice or bias even exists is very difficult, as well as providing clear evidence in support of the argument. Moreover, proving a prejudice or bias affected the GAL’s recommendation is even more difficult.

Guardian ad litems are usually lawyers with years of experience serving as GALs in accordance with the law and have earned the respect of judges and courts. A guardian ad litem that is either under-performing or inept would be quite exceptional. If a party believes the GAL to be under-performing or inept, he or she can petition with the court to have the GAL removed. If there’s sufficient evidence to support the claim, the court will remove the GAL and appoint a new one.

Originally published at www.oflaherty-law.com.

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