The Work of a GAL and Lessons Learned

As I sat down to write my article this month, I had the great pleasure of reminiscing about my days as a Guardian Ad Litem (GAL). When I was first appointed as a GAL by the Domestic Relations Court, I was a very new and inexperienced attorney. I decided to reach out to other GALs for their insight and guidance. What a gift they were to me. Not only did they share their years of wisdom and war stories with me, but they also shared sample reports. As a beginner, it was nice not to have to reinvent the wheel. If you are a newer GAL, reach out to other seasoned GALs when you are in a pinch, as there is a plethora of knowledge out there and so many willing and eager to help you. You merely need to ask.

Although the GAL Statute has changed over the years, 750 ILCS 5/506 provides in pertinent part as follows:

“(a) Duties. In any proceeding involving the custody, visitation, allocation of parental responsibilities, education, parentage, property interest, or general welfare of a minor or dependent child, the court may, on its own motion or that of any party, appoint an attorney to serve in one of the following capacities to address the issues the court delineates: ……..
(2) Guardian Ad Litem. The guardian ad litem shall investigate the facts of the case and interview the child and the parties. Unless the court directs otherwise, the guardian ad litem shall submit to the court and the parties a written report, written recommendations, or a proposed parenting plan, in accordance with the child’s best interests, not less than 30 days before a final hearing or trial. The guardian ad litem’s written report or written recommendations shall be admitted into evidence without the need for foundation. The guardian ad litem shall be available for deposition before a final hearing or trial notwithstanding any other discovery cutoff. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations. At the discretion of the court, the guardian ad litem:
(i) may be present for all proceedings, including in camera examinations of the child;
(ii) may issue subpoenas for records as part of the guardian ad litem’s investigation; and
(iii) may file pleadings relating to procedural matters.” ………………………

Prior to my appointment on the bench, I was appointed as a GAL in hundreds of cases. I developed my own GAL style, but I learned several lessons along the way. I learned to thoroughly investigate a case. First, I would read the court record and all the pleadings. I can’t begin to count the number of times that litigants would come for their appointment and tell me that they had joint decision-making, when they did not. Or the times they would tell me what their court-ordered parenting time was, and the order revealed something completely different. Or the number of times their facts and the court orders were at odds.

I checked local court filings and those of other relevant counties for any criminal and civil history on the parties or the child. I often found orders of protection, criminal histories, evictions, or other family cases involving the litigants. If juvenile cases were involved, I asked the court to allow me access by order to review those files.

Next, I talked to the parents. I always had a list of general questions to ask them and would add additional questions based on what I learned from the court files. I liked asking them to describe a good quality possessed by the other party. We could all write a book on the answers we received to that question alone. I took very detailed notes at all my meetings. (GAL notes are a whole topic for another day.)

I talked to the teachers and daycare providers. They are the ones who the child is with a large majority of the day if the child is of school age. The child’s interactions with the teacher/daycare provider and other students, behaviors, and statements may shed important light on a case and can be very telling. I reviewed the child’s report cards, school records, absences (whether excused or unexcused), tardies, and assignments. If assignments were missing or not turned in or there were unexcused absences, I checked to see which child the parent was with that date. I checked logs to see who dropped off and picked up the child if that was an issue.

I talked to the child’s grandparents or other relatives and friends that were relevant. Sometimes their recollections and opinions mirrored that of the litigants and other times, they did not. Family and friends would give glowing reports of a parent, echo the other parent’s concerns, or a little of both. I learned that assessing their credibility was critical in my role as a GAL. I had many relatives and friends say that they were so glad to be contacted and to be able to express their thoughts and concerns about the child. I talked to related adult siblings. They often have a lot of parenting and household information to share. If someone was living in the household with the child, I wanted to speak to them. Among other things, I learned about the child’s daily routine and who took the child to school, picked them up, helped with homework, took them to and attended their activities, and scheduled and took them to their doctor, dental, and vision appointments. In most cases, counsel or the parties would give me a list of people they wanted me to talk to. Unless otherwise directed by the court, I used my discretion when deciding who to interview. However, I was always prepared at trial to explain why I did not talk to someone they suggested. When you start to get daily calls and an unreasonable number of documents and text messages to review, I learned to talk to the attorneys or raise the issue with your judge. As a GAL, I needed to make my recommendations and be thorough but also mindful of the cost of the GAL investigation.

I talked to the children on their level. I had each parent bring the child to my office, or I would go to each parent’s house. I would talk to the child and the parent together and talk to the child(ren) individually. Most of the children loved to show me their room, pets, and their house. I learned a lot about the child by observing them in their residence and observing how they interacted with their parents. Some had bedrooms, and some did not. Some shared bedrooms with other stepsiblings or their paramour’s children, or they slept on the couch. I will never forget the case I was assigned to when I was a newer GAL. The litigant had a new baby that he hid from everyone until mid-trial. Dad even went so far as to tell his young child not to tell anyone about her baby brother. And she didn’t tell a soul. What a burden on that child. Not surprisingly, things went sour for him very quickly after that came out at trial. I’m not sure if I would have found out about the baby had I made an announced visit as Dad was so secretive, but I probably would have found out about her baby brother if I had made an unannounced visit. I learned to make surprise visits. As a GAL, I learned to make sure to follow-up and talk to children and the parties right before trial. I never wanted to have to testify that I had not talked to anyone in months, as facts frequently change in family cases. This happened to me once, early in my GAL career, and never again.

As a GAL, I developed a list of questions over the years and modified those questions based on the case or the child’s answers. One of my questions to the child was, “Do you have any concerns with Mom/Dad?” And indeed, one of my most informative questions was always, “What did Mom or Dad want you to remember to tell me?” That question always led to a lot of interesting answers. As a newer GAL, you might consider conferring with other GALs on the questions they ask. When it became clear that the children were parroting answers, I put that in my report.

I learned to recommend drug testing right away if there was a substance abuse issue possibility. Many judges will order hair and urine testing. The combination of the two can be very important as urine drug testing results only show very recent usage, and hair follicle testing results can show usage in the prior ninety (90) days or so. Testing assisted me to determine whether there was an issue in a case very quickly. If there was an alcohol issue, I recommended devices to monitor alcohol use. I also recommended provisions in orders that prohibited alcohol usage during parenting time or a certain number of hours prior to parenting time.

I learned that if there was a physical or mental condition of a party or a person in a litigant’s custody or legal control that was in controversy, to request a physical and/or mental examination under IL Supreme Court Rule 215. Or, in a court proceeding to allocate parental responsibilities or to relocate a child, to request an evaluation or an investigation under 750 ILCS 5/604.10 when necessary. If a case involved any health records, I made absolute sure to comply with the Mental Health and Developmental Disabilities Confidentiality Act and the Federal Health Insurance Portability and Accountability Act of 1996. If I recommended counseling, I would state what type of counseling, such as individual, family, co-parenting, reunification, domestic violence, anger management, substance abuse, etc. When I felt they were necessary, I recommended parenting classes. Since my days as a GAL, they have even added the possibility of suggesting to the court a parenting coordinator in those very difficult cases, and there is IL Supreme Court Rule 909 and some local court rules on that issue.

If someone is sharing court matters with the child or talking about the other parent in a derogatory manner or allowing others to do so within the child’s earshot, I learned to put that in my report. Litigants would sometimes either hand the child court orders to read or intentionally leave the orders on the kitchen table for the child to read. In all my years, I have never met a child that this type of behavior helped or a judge that didn’t put an end to that type of behavior right away.

I learned to prepare a very thorough GAL report. I listed and analyzed the relevant statutory factors in my report that the court and I were required to consider on the matter. I told the judge what my recommendation was. I learned the judge does not ever want you to stay on the fence on a recommendation. You can say that the decision is close but decide. At the end of my report, I added that my decision was based on my investigation and the information provided to me to date. As a GAL, I learned to ask the attorneys and self-represented parties if they wanted me to send them a letter outlining my preliminary recommendation first before filing a formal report with the court. In attorney cases, since the GAL’s filed report becomes part of the permanent court record for the court and litigants to read in the future, most attorneys preferred a letter (at least initially). Many attorneys did not want their clients’ private matters and issues filed in a permanent court record. I learned that lots of cases were settled with just the GAL letter.

As an attorney, when I had GALs appointed in my cases, I always spent time prepping my clients prior to their appointments with the GALs. I explained the process to them. I explained that what they or the child tells the GAL is not confidential. I also explained that the GAL did not represent their children. Often, it is a misconception that the GAL is the child’s attorney. I went through the statutory factors with my client that the GAL would be considering in their case. I gave them a copy of the applicable law to take home with them. When I served as a GAL, I learned that way too many litigants came into my office without any understanding of my role and the factors that I had to consider.

As a judge, I know we all run our courts differently, but I have listed some of the ways that I handle GAL cases from the bench. First, my GALs bill at their regular rate. I understand that my GALs could be working on other cases, and I appreciate them. I don’t appoint them unless I feel an absolute need in a case. I award reasonable advance fees for my GALs when they are appointed and a short payment time frame. My GALs sit through the entire trial. They generally testify last so they can be asked after hearing all the evidence whether their opinion on certain matters or recommendations have changed. I frequently award income tax refunds to my GALs (especially around this time of year) to be used toward their fees. I award advance trial retainers. I don’t want my GALs to have to try to collect their fees after the trial. As we all know, often after trial, one or more parties are generally unhappy with the GAL and don’t have any desire or motivation to pay them. Also, I want the litigants to understand the cost of their GAL prior to trial and to try to encourage settlement before trial, if possible. At nearly every setting, I ask my GALs if they have been paid and sign orders accordingly if they have not. When I review their filed quarterly billings, if I find the costs reasonable and necessary, I sign the GAL’s proposed order for a judgment and order payment within 30 days. I issue Show Cause Orders for GAL fees upon proper petition. Do I get requests for a new GAL in cases? Absolutely. To date, I have not granted a request for a new GAL as I have never felt the need based on the evidence presented. I impound my GAL reports by local court rules. Prior to that rule, as a GAL, I asked that my reports be impounded so the sensitive information contained therein was not necessarily available for the child to view later in life or anyone else.

I always took my role as a Guardian Ad Litem very seriously and could expound on so many other lessons learned. But in closing, please know that GALs are appreciated by the courts. Your role is very important. You are the court’s eyes and ears. Every decision we make in the family court system can impact a child’s life. Their best interests are always our top priority. Help mentor new GALs. Keep up the good work!