Jul 24, 2020

What Is a Guardian Ad Litem, and Do I Need One During My Divorce?

Getting divorced when you have children can be difficult, and you and your spouse will need to address a wide variety of issues related to child custody, parenting time/visitation, and how the two of you will work together as co-parents. These matters can be fraught with emotion and hard to resolve even in amicable divorces, but in cases involving significant conflict, accusations of abuse, or other divorce-related disputes, it may be necessary to appoint a guardian ad litem (GAL).
A guardian ad litem is an attorney who does not represent either spouse in a divorce case but is instead tasked with ensuring that the best interests of the couple’s children are protected. Either party may ask for a GAL to be appointed, or the judge may decide to appoint a GAL to investigate the case and provide recommendations about how matters related to the spouses’ children should be resolved. If a guardian ad litem has been appointed in your divorce, or if you want to know whether a GAL can benefit your child custody case, you should speak to a DuPage County family law attorney to learn how you can protect your parental rights and your children’s best interests.

What Does a Guardian Ad Litem Do?

If divorcing, separated, or unmarried parents are unable to reach an agreement about how to share or divide the responsibilities of raising their children, the amount of time the children will spend with each parent, or other issues related to the custody of their children, these decisions may be left up to the judge in their case. The judge will make decisions based on what is in the children’s best interests, but this can be difficult to determine from inside the courtroom, especially if the only information available is what has been presented in the arguments made by the parents’ attorneys. To help the judge make decisions, a guardian ad litem may be appointed to investigate the case and offer recommendations.

After being appointed, a GAL will perform an investigation, attempt to gain a full understanding of the situation, and prepare a report offering recommendations on how to resolve matters in a way that protects children’s best interests. This report will be filed with the court, and if the case proceeds to a trial, each party’s attorney will be able to cross-examine the GAL regarding the investigation and recommendations.

During the investigation, the GAL will interview each parent and speak to the children, and he or she will visit each parent’s home. He or she may also contact others who can offer insight into the case, such as family members, neighbors, teachers, doctors, or therapists. In addition, the GAL may ask to access medical or educational records or any other information relevant to the case. 

The goal of the investigation is to gather all the necessary facts about the children’s situation, the parents’ ability to meet their children’s needs, and any issues that may affect the children’s well-being. After gathering all relevant information, the guardian ad litem will offer recommendations to the judge about how to resolve the outstanding disputes. While the judge is not required to follow the GAL’s recommendations, his or her opinions will likely be given a great deal of consideration when making decisions about how parents will share responsibility for their children and the amount of time children will spend with each parent.

How Long Does a Guardian Ad Litem Investigation Take?

Depending on the complexity of the case and the issues to be resolved, a GAL investigation may last at least one to two months. The length of the investigation will depend on the number of times the guardian ad litem will meet with the parties and their children, when he or she will be able to visit each parent’s home, and the time necessary to obtain records or contact other parties. Typically, the appointment of a guardian ad litem will extend the length of a divorce or child custody case by 90-120 days overall.

What Will a Guardian Ad Litem Ask My Child?

When speaking to your child, the guardian ad litem will discuss their situation with them in an age-appropriate manner, attempting to understand their relationship with both parents, their desires regarding where they will live and the time they spend with each parent, and any concerns they may have. The GAL may ask about their home life, how things are going at school, or their relationships with other family members. The goal of these conversations is to determine the child’s wishes and identify any concerns that may affect children when they are in the care of either parent.

When preparing for a GAL interview with your children, you should offer age-appropriate explanations of why he or she is talking to them and encourage them to answer questions honestly. Be sure to avoid “coaching” your children to answer questions in a certain way or asking them to make statements in favor of or against either parent.

What Can I Expect During a Guardian Ad Litem Visit?

When a guardian ad litem visits your home, he or she will be looking to make sure you can provide a safe environment and meet their needs. In addition to showing that you have a clean, safe home, you will want to demonstrate that you will be able to prepare meals and meet your children’s nutritional needs, that you have space for them to sleep and play, and that you have room to store their clothes, toys, and other items. You may also point out other positive aspects of your home and community, such as an area to play outside, nearby parks or schools, or proximity to children’s friends or extended family members.

During your home visit, the GAL may wish to observe you spending time with your children. This will give him or her an idea of your relationship with them and your ability to provide for their needs. In these cases, it is best to interact with your children as you normally do, showing that you are an attentive parent who is focused on their best interests.

What Not to Say to a Guardian Ad Litem

When speaking to a GAL, you should always be honest and forthright, demonstrating that you are willing to put your children’s best interests first. You should never lie to a guardian ad litem, and you should provide him or her with any requested information promptly and answer questions fully. 

In some cases, a GAL will ask pointed questions, such as whether you have anything positive to say about the other parent or whether you believe your ex has your children’s best interests at heart. While these types of questions may be difficult to answer, you should avoid badmouthing the other parent while speaking honestly about any concerns you may have or issues that may affect your children.

Remember that in most cases, the legal system believes that it is in children’s best interests for them to have a close and continuing relationship with both parents. This means that you will be expected to cooperate with your ex to raise your children, and a guardian ad litem will want to make sure you will be able to interact cordially with the other parent and make decisions together about how your children will be raised. You will want to show that you are willing to cooperate and encourage your children to have a good relationship with the other parent.

Who Pays for a Guardian Ad Litem?

Typically, a GAL’s fees will be paid by the parents, and these costs are usually divided equally between the parties. However, if one party is at a financial disadvantage or is reliant on spousal support or child support paid by the other party, he or she may ask for the other party to pay a higher percentage of the costs related to the GAL. It is best to pay any GAL fees on time and in full, since this will demonstrate financial responsibility and show that you can be relied upon to provide for your family’s needs.

Do I Need a GAL in My Divorce?

A guardian ad litem can be beneficial in cases where a parent is concerned about children’s safety while in the care of the other parent or when conflict between parents has become too intense to resolve through negotiation or mediation. You should speak with your divorce attorney about whether you should request that a guardian ad litem be appointed, and your lawyer can help you understand the best ways to respond during a GAL’s investigation, while helping you take the right steps to protect your rights and reach an outcome that provides for your children’s best interests.

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