Do your children need a lawyer? What is a Guardian ad Litem?

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Divorce is stressful not only for you and your partner, but for your children as well. Cases that involve disputes over child custody can be especially hard on children, which is why many judges don’t like to have them testify. In these cases, the judge can appoint a Guardian ad Litem who will advocate on behalf of your child.

What is the Guardian ad Litem’s Role in Illinois?

A Guardian ad Litem is an experienced attorney for the children of two parties involved in a divorce or other dispute over parenting issues. Their role is to interview the children and both parents, investigate the case, and then testify to the court, or submit written recommendations, outlining what outcome is in the best interests of the child or children. This is slightly different from a child representative, as representatives do not testify and are not cross-examined.

In Illinois, Guardians ad Litem are discussed under the Illinois Marriage and Dissolution of Marriage Act. Section 506 (2) states: The Guardian ad Litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest 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.

Why Is Having a Guardian ad Litem Important?

The Guardian ad Litem is not on either parent’s side — the child is their client, so their top priority is to look out for what’s best for the child. When investigating the case, the Guardian ad Litem will meet with both parents, meet with the child, take stock of both parents’ living situations, and review all evidence and facts in the case. 

Children can feel intimidated during divorce cases and sometimes feel bad telling parents how they really feel. Your child could open up to a Guardian ad Litem and discuss matters he or she might not feel comfortable discussing with you. Guardians ad Litem are typically appointed in cases where a parent is suspected of child abuse, of substance abuse, or is not thought to be fit for custody due to living conditions or other reasons.  They are also utilized when a child has started showing at-risk behavior, as this behavior could be attributed to living conditions or something else going on with either or both parents behind the scenes. However, it is common to have a Guardian ad Litem appointed in more common cases where custody or other parenting issues are in dispute.  Judges often refer to Guardians ad Litem as “the eyes and ears of the Court.”

A Guardian ad Litem can also be helpful as an outside observer in determining where exactly parents disagree, since they speak with each party individually and then provide an unbiased report. This report can show clearly where differences lie.

How Guardians ad Litem Protect Children In Divorce and Parentage Cases

A Guardian ad Litem is not the same as a child’s lawyer. The role of a Guardian ad Litem is to investigate and advocate for the best interests of a child.  The Guardian ad Litem does not simply follow the desires of the child. The Guardian ad Litem’s primary responsibility is to keep the best interests of the child in mind, protecting the child from ending up in an unsafe home or toxic environment. They also seek to insulate the child, to the greatest degree possible, from the adversarial nature of the litigation process.  

Is There a Reason to Hire a Guardian ad Litem Even When Not Mandated by the Court?

 A Guardian ad Litem is appointed by the Court.  Either party to a case can request such an appointment from the judge, or the judge can appoint a Guardian ad Litem without either parent making a request.  There are many reasons why you might want a guardian ad litem appointed in your case. If you suspect the other parent of abuse or don’t think they’re fit to have custody of your child, but you can’t prove this with evidence, the Guardian ad Litem’s report could end up helping you.  Similarly, you may want a Guardian ad Litem to investigate the facts of your case so as to advocate for what is believed to be in the child’s best interests. However, a Guardian ad Litem is independent. If you’re confident the facts are on your side, the Guardian ad Litem’s report could be helpful in your case.

Similarly, if you don’t know how your child feels about the case and want to ensure he or she ends up in the happiest possible situation, a Guardian ad Litem can help. Your child could open up to a Guardian ad Litem in a way they won’t to you, and that can help with creating a recommendation that puts the child’s needs and desires first.

Mike Schiffman is a certified Child Representative and Guardian ad Litem for the Circuit Court of Cook County, with more than three decades of experience representing children in complex divorce and family court cases. Frequently appointed by the Courts to serve as a Guardian ad litem in Illinois, Mike protects and advocates for the best interests of minor children. Care and protection of children is always his top priority in his practice. To learn more about how Mike’s experience representing kids could help protect the best interests of your family, contact Schiffman Family Law today to book a free one-hour consultation with Mike Schiffman.