If your case involves a dispute about the custody or visitation of children, and you and the other parent are not coming up with a shared plan for their upbringing, the court will appoint a guardian ad litem, or GAL, to scope out the situation and make recommendations. This is especially likely to happen if mediation failed to resolve your disagreements, or if the mediation process was skipped.
The guardian ad litem is like an extension of the judge.
The judge needs to determine what is in the child’s best interests. To do that, theoretically the judge would need to go and see the kids’ homes, talk to the parents in their environment, look at medical records and school records, and just get a better understanding of the facts. But the judge doesn’t have time for that. Not only is that impractical, but the judge might appear to be partial if they go to a client’s house.
So instead, they appoint a GAL, who is like an extended hand of the judge. The GAL goes out, does those investigations, and writes a report with their recommendations about which parent should have custody and authority to make decisions for the child. The recommendations reflect what they believe will protect the child’s interests as much as possible.
The GAL comes in after mediation doesn’t work.
In Cook County, a process is supposed to be followed that involves ordering the parents to see a mediator if they are not coming to agreement about parenting time and decision-making. Mediation can be hit-or-miss. If the mediator is effective and the parents are willing to cooperate, then great – we get things done, we draft the allocation judgment and the parenting plan (the documents that spell out custody and parental decision-making), they sign it, and they are done.
The majority of judges, but not all, follow that process. But if the mediator’s report comes back and says we didn’t resolve all issues – or even one issue – the judge will often order a GAL to be appointed right then and there. The judge will tell you that they’ll see you back in three to six months, to give the GAL time to conduct their investigations.
The GAL can be a witness
The GAL is an attorney, but not an attorney in that particular case. You can call them as a witness and have them testify as to their report. If, for example, we don’t agree with the recommendations, we would call the GAL to testify about what was included in the investigation and why they came to the conclusions they did. You are allowed to ask those things and try to chip away a little bit at the GAL’s credibility with the recommendations.
A GAL can be appointed when there is a motion before the court about a new issue.
Let’s say your divorce was a while back, and now an issue has come up involving the child. Maybe mediation did not work for you in the past, so you skip mediation. Instead, you just file a motion to request a GAL to be appointed to investigate that very specific new issue regarding your child, which is causing you to want to adjust the custody or visitation arrangement.
You can’t first request for a GAL and then file a petition to modify custody or visitation. That’s putting the cart before the horse. There must be a motion pending that deals with significant decision-making or parenting time in order for you to request a GAL.
Example: The divorce was two or three years ago. Suddenly, one day I get a phone call from Dad – who was my client – saying that Mom’s new boyfriend hit his son with a ball, and we need to get a GAL to investigate this guy. In such a situation, I would have to file an emergency motion to suspend parenting time with Mom when that boyfriend is around. It’s possible that the judge at the hearing for the emergency motion about Mom’s boyfriend would recommend, or even order, a GAL to be appointed right there without any formal pleading filed. But possibly not, and in that case, that’s when it would be appropriate to request a GAL. But to file a motion for the GAL, I first must have a motion filed.
To sum up, the guardian ad litem investigates on behalf of the court when issues involving the child’s best interest are at stake, and the parents are not in agreement.