By Amy Silberstein, Divorce and Family Law Attorney

When dissolving a marriage between a couple who has children, it is critically important to make all decisions with the child or children’s best interests in mind.

At Stern Perkoski Mendez, we often work with a Guardian Ad Litem (GAL) or Child Representative (Child Rep) to make sure a child custody agreement prioritizes a child’s physical and mental well-being. However, their distinct roles can be confusing.

Here’s an explanation of the responsibilities of a Guardian Ad Litem (GAL) or Child Representative (Child Rep) in determining child custody.

What are GALs/Child Reps, and do I need one?

Both a GAL and Child Representative are tasked with the role of investigating the arrangement that would be best for a child, and both are essentially the eyes and ears of the judge into your child’s best interests.

GAL/Child Reps are usually only appointed when the parents cannot reach an agreement on their own about what is best for their child or children. If you and your spouse have conflicting representations as to what occurred during your parenting time, the appointed GAL or Child Rep will investigate the conflicting viewpoints and discern what actually happened.

During an investigation, both GALs and Child Reps will talk to you, your spouse and your child. They also likely will observe your child with each of you during your separate and respective parenting times to see how your child interacts with each of you. Depending on how long the investigation lasts, the Child Rep or GAL might talk to your child multiple times.

They also may talk to other individuals with knowledge of how you and your spouse each parent your child. For example, if your spouse spends time with your child at their parents’ house, the Child Rep or GAL would talk to your spouse’s parents—but they’d consider that conversation with the knowledge that your spouse’s parents are probably on your spouse’s team and may not be entirely reliable.

In this scenario, part of the job of the GAL or Child Rep is to determine what they believe to be the truth about what is happening—and to weigh the credibility of the individuals with whom they speak during the investigation. Often, Judges defer heavily to the recommendations or arguments of the Child Rep or GAL when ruling on the child’s best interests.

How do GALs and Child Reps differ?

Guardian Ad Litem

• GALs Provide Written Reports — Upon concluding their investigation, the GAL will provide a written report to the court. They will explain the scope of the investigation, who they spoke with and their recommendations regarding the child’s best interests. The report may be delivered orally during the course of the investigation—but if the child’s best interests continue to be disputed, then the report will eventually be provided in writing.
• GALs Can Testify — During a hearing or trial, the GAL will take the stand to testify about their investigation and the child’s best interests, and they may be cross-examined regarding their report.
• GALs Are Good for Young Children — GALs are helpful with young children because the GAL can specifically testify to what the child has said or indicated to the GAL. There is no attorney-client relationship established between the GAL and the child or anyone else interviewed—and while testifying, the GAL must truthfully answer all questions asked.

Child Representative

• Child Reps Can File Pleadings and Provide Testimony — A Child Rep functions in more of an advocacy role (as an attorney) than a GAL does. This means that a Child Rep can file any pleadings they think are necessary, whereas a GAL cannot file pleadings. Instead of testifying during a trial or hearing like a GAL, a Child Rep would put on testimony—meaning a Child Rep can question the parties and any other witnesses about the child’s best interests, but the Child Rep themselves will not be examined.
• Child Reps Can Make Legal Arguments — If a case goes to trial or hearing, the Child Rep may also make legal arguments to the court and present evidence, similar to what the attorneys will do for each party. The Child Rep will conduct an investigation, and then advocate for what they determine to be in the child’s best interests.

  The Child Rep will technically not render a report, opinion or recommendation to the court—but will instead make a legal argument about the minor child’s best interests following their investigation. They may consider the child’s wishes in making a legal argument to the court, but they do not have to do so.

  Prior to a pretrial, hearing or trial, the Child Rep will submit their arguments as to the minor child’s best interests in the form of a pretrial memorandum to the court. The pretrial memorandum will not be considered evidence, but the court and the parties may consider the position of the Child Rep for purposes of settlement.

• Child Reps Are Good for Older Children — There is a level of attorney-client confidentiality between the child and the Child Rep, so the Child Rep does not have to disclose communications they have with the child if deemed to be confidential. This makes a Child Rep a good choice for older children or children who may be nervous that what they say would get back to the parents.

Which do I need, and how are they chosen?

Typically, a GAL is best for younger children, and a Child Rep is best for older children. A GAL can benefit younger children because, through their testimony, they can give the child a stronger “voice” than they might otherwise receive in court. However, since a GAL can be called to testify and a Child Rep cannot, a Child Rep gives older children a greater degree of confidentiality.

To select a GAL or Child Rep, each spouse’s attorney will typically make suggestions of people they have worked with successfully in the past. However, if they are unable to agree—or sometimes just based on the preference of the Judge—the court will appoint someone. It is usually about 50/50 whether two parties come to an agreement or the court makes a selection.

If the court does make a selection, the Judge will consider several factors, including the parties’ income and location.

At Stern Perkoski Mendez, our divorce and family law attorneys can suggest numerous GALs/Child Reps whom we respect. Every GAL/Child Rep has a different approach, and some will be a better fit than others due to the nature and style of their investigation.

How much does a GAL or Child Rep cost?

The general cost of a GAL/Child Rep depends on the amount of work they must do, as the GAL/Child Rep will charge on an hourly basis. Sometimes, “low” bono or pro bono GALs/Child Reps may be appointed—but often, the parties will pay a retainer of $3,000 to $5,000, with additional retainers along the way.

The fees are usually split between the parents, either in half or in proportion to their respective incomes. If one parent earns an income and the other parent does not, the parent earning the income may be required to pay all fees. The division of the fees at the time of the appointment can sometimes be adjusted later in the litigation process.

Contact Our Family Law Firm in Evanston, Chicago, Lake Forest and Oak Brook

If you are looking for support with a divorce involving child custody agreements, contact Stern Perkoski Mendez for a free consultation. We can be reached at (847) 868-9584 and will happily meet you at our offices in Evanston, Chicago, Lake Forest and Oak Brook, or at another location.

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