Working effectively With A Guardian Ad Litem

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Author: Chicago Volunteer Legal Services
Last updated: June 2016

Note:The Illinois Marriage and Dissolution Act and Paternity Act changed on January 1, 2016. The most up-to-date information can be found in the following articles on Parentage (formerly Paternity), Divorce, Allocation of Parental Responsibilities (formerly Custody), Parenting Time (formerly Visitation), and Child Support.

Guardian Ad Litem Overview

A Guardian Ad Litem (GAL) is a volunteer attorney appointed by the court in a case that involves the interest of a child. Some judges assign a GAL to nearly every case; others only do so at the request of one of the parties to the case. A GAL is often called a “Child Representative” and judges usually respect the authority of a GAL and their understanding of the child’s best interest. Many judges have a long-standing relationship with specific GALs and trust their judgment.

Many attorneys believe that appointment of a GAL in a family law case will make their jobs easier. However, the appointment of a GAL forces you to prepare your case and your client earlier and better. You and your client must create and sustain a good relationship with the appointed lawyer.

Often, both advocates and clients don’t understand that they are “on trial” every time they interact with the GAL. The judge considers the GAL (or child’s representative) to be an expert on the law and an astute judge of character. The GAL can become extremely helpful to your client, but can also derail your client’s case. It can be helpful to think of the GAL as a second judge.

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Considerations Before Asking the Court to Appoint a GAL

Do You Really Want a Guardian Ad Litem?

Some judges routinely appoint a GAL in every case. The majority of judges do not appoint GALs to every case, as most circuits lack a vast supply of qualified, willing attorneys to serve as GALs.

Legal aid organizations can find themselves involved in cases where a GAL creates a significant disadvantage for their client. Understanding your client’s motivation in asking for a GAL is important. Many clients requesting a GAL mistakenly believe that they will be getting a second, more powerful lawyer. Clients commonly see the GAL as an additional advocate for them because, like the GAL, clients believe that the children are the sole interest in the case. However, the GAL is tasked with rendering a report as to the parties and who is in the best position, in the eyes of the court, to care for the child.

Who Will Pay?

Many legal aid clients and their attorneys think that since the client is poor enough to get free legal services, the other side will pay for the GAL. That might not be a good thing for your client. Some GALs almost invariably side with the party paying the bill because of the financial capabilities that individual has to care for the child. Even the most conscientious and ethical GALs tend to, at some point, see payment of fees as evidence of commitment, responsibility, and stability. Litigants who are paying something to the GAL may even be more conscious of how much time they are demanding from the GAL.

You should seriously explore with your client how she or he can contribute something to fees, even if it seems difficult.

Your client may not even have the option of nonpayment. Depending on the availability of attorneys that can be appointed as GALs, Courts are increasingly aware that good attorneys will not continue to accept appointments if they do not receive compensation. The judge may order your client to pay a certain amount, regardless of your client’s financial position. If this is the judge’s rule (and philosophy), you should be very careful if you decide to fight it. The poverty argument may have unwanted consequences in custody cases.

Are GALs Ever Appointed for Free?

For guardianship cases at the Daley Center in Chicago, the court will routinely appoint Chicago Volunteer Legal Services as the GAL. Occasionally the Community Law Program at Loyola’s Law School will be appointed. If your case is conflicted out of having either of these agencies appointed, or you do not meet their criteria to receive free legal representation, you will have to pay for the GAL’s time.

Communicating with the GAL

Whether or not your client is paying, instruct him or her NOT to call the GAL without first running the matter by you. You need to be a buffer between your client and the GAL.

Before contacting the GAL, ask yourself the following:

  • Is the call really necessary? Beware of reporting unsubstantiated allegations by children (“Daddy never has toothpaste”). They are often inaccurate. Likewise, comments made to your client by the adverse party are sometimes designed to provoke a credibility-destroying overreaction. Be careful when reporting any comments made by the adverse party to the GAL.
  • Is your client capable of talking sensibly to the GAL? Do not let your client be disrespectful in any way to the GAL, the other party, the judge, or the legal system. These comments will have a negative impact on what the GAL reports to the judge. If your client is frequently overwrought or insists on communicating directly with the GAL, then you have a real problem. You will get a bad report from the GAL and the trial will be a disaster for your client.

Will You and Your Client Like the GAL?

To avoid disappointment, you and your client must have realistic expectations. The GAL operates within a framework established by the judge. Judges view GALs in many different ways, so get to know as much as you can about their practices.

Then there is the matter of how your judge views specific issues. Generally, GALs will not waste time with issues they know that the Court thinks are unimportant. Because GALs handle so many cases each year, they know which issues the judge is focused on and which ones are of less concern. They will look for specific issues they know to be important to the judge, and will not be as concerned with the personality of your client. Even so, a cordial interaction is always important as it demonstrates many traits that a GAL and Judge expect of a parent.

Your client cannot get a “new” GAL if they don’t like their current GAL. Educate your client to be respectful of the lawyer’s time.

Follow the GAL’s system

Pay attention to what the GAL focuses on and what they ask of your client. You will have a strong advantage when you prepare your client for the case because you will have developed a good idea of the Judge’s quirks and biases, based on the GAL’s focus.

What If You Dislike the GAL?

Unless you have a very good reason (e.g. he has represented one of the parties in another case), don’t argue against the appointment of a specific GAL. The Judge will not be flattered to hear you question his or her judgment.

The GAL is supposed to begin the case without bias. However, at some point, the GAL must form opinions, based upon what he or she perceives to be the facts. Those opinions may include some very harsh assessments of your client. They are unlikely to improve if the client (or client’s supporters) accuses the GAL of “prejudice.” There is an enormous difference between pre-judging and poor judgment.

If you or your client is disenchanted by the GAL, be quiet. Unless you have a provable ARDC complaint, you are not going to get a new GAL. You can cross-examine the GAL at trial to reduce his or her credibility.

However, be careful because you are unlikely to gain points with the judge by berating the court appointed advocate for the child. If you choose to attack the credibility of the GAL, you should have a good reason.

We Have a GAL, Now What?

Once a GAL is appointed, it is in your client’s best interest for you to work well with the GAL. Send the GAL a copy of the Order Appointing Guardian Ad Litem and ask if he or she needs a copy of the file. Let the GAL know if he or she is allowed to contact your client directly or if he or she must go through you. Make sure he or she knows when the next court date is and any burning issues in the case. Your first contact with the GAL might be a great first opportunity to set the tone for the case and start to plead your client’s side.

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Basic Principles of Working with a GAL

The following are some basic principles for attorneys and clients who hope to have any success working with a GAL or other court-appointed experts.

Don’t Tell the GAL How to Do Their Job

Neither you nor your client should presume to tell the GAL what his or her job is or how to do it. GALs give each case an enormous amount of work and thought, but do not mind being questioned or politely challenged.

Your job is to present your client’s side to the GAL and to advocate for your client in court. Making the GAL an enemy will not help you reach your client’s goals.

Follow the GAL’s Instructions

This is not hard to do, but far too many attorneys and their clients do not bother. If the GAL tells your client to call him after a weekend visit to let him know how it went, make sure your client does so. If the GAL asks for documents, make sure you get them from your client and send them along. If the GAL asks you to call him to discuss your view of the case, call him. GAL’s often give parties instructions to test them, or to help them. Either way, your client benefits from prompt, full compliance. Although you can’t comply for your client, you can make sure your client does. If, despite your best efforts, your client still cannot follow the GAL’s instructions, you may want to talk to your client about their best options, short of custody of the child.

The GAL is Not a Friend or a Therapist

This is a business relationship. As soon as the GAL is appointed, copy and organize all relevant documents for him or her. Your client may want to provide him or her with a list of names, telephone numbers (home and work), and addresses of people the GAL should contact. Each name should be followed by a brief summary of what this person knows. As the advocate, you are responsible for screening and vetting these materials to assure relevance. The GAL might not contact everyone on your list. He or she may not contact anyone on your list. However, if you are able to easily provide the GAL with a list of relevant contacts, like teachers, therapists, and doctors, it will make his or her job much easier and will allow the GAL to learn more about your client.

Character references are rarely helpful to the GAL. The GAL is looking for unbiased people who have knowledge of the parties and the child. Your client should never encourage their friends, family members, or spiritual leaders to contact the GAL to tell how your client has been “wronged” and why the GAL had better take their advice and see their point of view. Many GAL’s have been bombarded by supposedly well meaning third parties who end up threatening that the GAL had better do the “right thing” or risk repercussions. This does not help your client’s case.

Emphasize the Positive

The GAL wants to hear why your client is good, not why the other litigant is bad. Finger pointing does not help your client. Focus on showing why your client is in the best position to care for the child. One factor in the best interest of the child standard is the degree to which your client can work together with the other side and the GAL.

Do Not Expect the GAL to Care About Misconduct Before the Children Were Born

The court is focused on standards like “willing and able,” “change in circumstances,” and “best interest.” Focusing on the parent’s wrongdoings from years ago is only helpful if the parent is continuing to exhibit those behaviors in the present.

Be Civil

You and your client must, at all times, be civil to every person involved in this litigation. You must comply with discovery requests on a timely basis. You must be familiar with the content of every court order and your client must obey every court order, regardless of whether or not you agree. Because the GAL bases his or her judgment on actions that take place outside the courtroom, many cases are won or lost by the behavior of counsel, clients, and their supporters outside the courtroom.

If your client can demonstrate, through words and actions that they have gone above and beyond to work with the opposing side and the GAL, their case will be rewarded. When a party or attorney complains to the judge about opposing parties, the GAL, the judge, the deputies, or the clerks, it will be very difficult for the judge to see them as anyone other than a person who complains when they don’t get their way.

There is no excuse for disobedience without checking with the GAL. For example, if the GAL hears a legitimate, verifiable reason why a visitation should not occur tomorrow, the GAL can tell counsel that they approve of withholding visitation on an emergency basis. Obviously, the GAL will then inform the opposing counsel of the decision, promising that either his opponent or the GAL will be filing an Emergency Motion within days.

The GAL does not want to get an after-the-fact call explaining that a client cancelled visitation last weekend. If a true emergency did arise over the weekend (e.g. Mom was drunk when she came to pick up the child), the GAL needs to be informed as soon as possible.

The GAL will also pay attention to how the client and counsel handle themselves in accordance with procedures such as discovery. While the GAL will not always be able to do much with any failure-to-comply issues, not related to custody, visitation, or support, such displays will show disrespect for the legal system. The GAL will use all of this when making recommendations to the judge.

Present Your Client to the GAL in the Best Light Possible

Although you cannot necessarily transform your client into a better parent or caregiver, you can give your client the tools to make some great strides in the parenting department. Encourage your client to attend school events for the child. Encourage your client to attend medical appointments. Your client should know the child’s teacher’s name. Help your client prove his or her sobriety by having them collect sign in sheets from AA or NA and then providing them to the GAL. Make sure that the GAL has accurate contact information for your client’s sponsor and if he or she does not have one, but is sober, work with the client to get a sponsor.

The more interest and involvement with your client and the child, the better the GAL’s opinion of your client will be.

Relatives and Friends Can both Help and Hurt

While clients may see it as support, most GALs and judges do not want to see a litigant’s supporters showing up unbidden for status dates.

If supporters do show up, you must be explicit and merciless in explaining the code of conduct. When these witnesses are actually needed in court, you must avoid any potential confrontations with the other party's troops, even if that means physically relocating your forces until their testimony is needed.

Do not allow your client to bring his or her own kids to court unless specifically told to do so by the Court or the GAL. Boyfriends and girlfriends should ordinarily keep a low profile. There are definitely exceptions to this rule, but no boyfriend or girlfriend of recent vintage should be anywhere near a courthouse.

Respect the GAL’s Recommendations to the Judge

When you first get the GAL report, review it with your client. At this point, you already had the opportunity to present all of your “evidence” to the GAL. If the GAL report comes down against your client, you need to seriously think about what additional evidence, if any, could be used at trial. If you have a “workable” client, ask the GAL for some time to resolve issues and then work with your client to start fixing what needs to be fixed.

Fundamentally, trials are difficult on children and the GAL will likely try to settle the case because of this reality. Therefore, you should be careful in demanding a trial if you don’t have any additional information than the GAL has already brought before the judge. The judge will often follow the GAL’s recommendation so you need to be extraordinarily persuasive to get the judge to sway from that.

Although you obviously cannot make a decision for your client, part of your job is to counsel your client about the pros and cons of trial. Let it be known, there are limited pros. Trials break down relationships and they utilize a lot of court time and resources. If you go to trial and you lose, you lose bargaining power with the court and the GAL. If you are representing the parent, that may mean that the GAL strongly recommends that your client demonstrate certain things before being allowed to file a new petition. If instead, your client is willing to follow the general recommendations of the GAL, you might be in a better place to proceed without having detailed instructions about what your client must do placed into a court order.

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