What Is the Difference Between a Guardian ad Litem and a Child Representative in an Illinois Custody Case?

When parents cannot agree about parenting time or the allocation of parental responsibilities, an Illinois court may appoint an attorney to help address issues involving their children. Two commonly discussed appointments are a guardian ad litem and a child representative. Although both roles involve the interests of children, they have important differences in their responsibilities and how they participate in litigation.

Understanding those differences can help parents better prepare for contested domestic relations proceedings. Illinois law establishes specific rules governing these appointments, and the type of appointment can influence how information is presented to the court and how the child’s interests are addressed.

What Is a Guardian ad Litem in Illinois?

A guardian ad litem, commonly called a GAL, is an attorney appointed by the court to investigate issues involving a child’s best interests. Section 506(a)(2) of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/506, establishes the GAL’s responsibilities. A GAL generally investigates the circumstances of the case and interviews the child and the parties.

Depending on the issues involved, the investigation may also include reviewing relevant records and gathering information from individuals familiar with the child’s circumstances. Unless the court directs otherwise, the GAL submits a written report, recommendations, or a proposed parenting plan in accordance with the child’s best interests. Under the statute, the GAL’s report or written recommendations are admissible without the need for a separate foundation, and the GAL may be called as a witness for cross-examination.

What Is a Child Representative?

A child representative is also an attorney appointed under Section 506, but the role differs from that of a guardian ad litem. Under Section 506(a)(3), the child representative advocates for what the representative determines to be in the child’s best interests after investigating the circumstances. The representative meets with the child and the parties, investigates relevant facts, and encourages settlement and alternative dispute resolution.

Unlike a GAL, the child representative does not submit a recommendation or investigative report as evidence and cannot be called as a witness. Instead, the representative participates in the litigation as an attorney, presents evidence-based legal arguments, and advocates a position concerning the child’s best interests. The representative must disclose the intended advocacy position in a pretrial memorandum, but that memorandum is not itself evidence.

How Are the Two Roles Different?

The primary distinction involves how each appointed attorney participates in the proceedings. A guardian ad litem investigates and may provide the court with recommendations through a report or testimony, while a child representative investigates and advocates through the litigation process rather than serving as a witness.

Both consider the child’s best interests, but they perform different procedural functions. There is also a third category under Section 506: an attorney appointed to represent the child directly. An attorney for the child owes duties of loyalty, confidentiality, and competent representation similar to those owed to an adult client. That role should not be confused with a GAL or child representative.

Does the Child Get to Decide Which Parent to Live With?

A common misconception is that children can automatically choose which parent they will live with once they reach a particular age. Illinois law does not establish a universal age at which a child’s preference controls the allocation of parental responsibilities. Under Section 602.7, the court may consider the child’s wishes, taking into account the child’s maturity and ability to express reasoned and independent preferences.

However, the child’s wishes are only one consideration in determining an appropriate parenting arrangement. A GAL or child representative may consider the child’s preferences, but neither is necessarily required to adopt those preferences as the ultimate recommendation or advocacy position.

What Happens When a Parent Interferes With Parenting Time?

Disagreements over parenting time may become particularly significant when one parent repeatedly refuses to comply with an existing court order. Such conduct can affect the child’s relationship with both parents and may lead to additional litigation. In an appropriate case, the court may appoint a GAL or child representative to assist in addressing disputed issues concerning the child’s best interests.

A parent who believes the other parent has violated a parenting time order may also seek enforcement under Section 607.5 of the Illinois Marriage and Dissolution of Marriage Act. Our article about what happens when a parent refuses to follow a parenting plan in Illinois explains the remedies that may be available.

Can a Guardian ad Litem Review Text Messages and Other Evidence?

A GAL’s investigation may involve reviewing relevant communications between parents, school records, and other information concerning the child’s circumstances. Electronic communications may be important when they reflect a parent’s conduct, cooperation, or compliance with existing parenting arrangements.

However, the appointment of a GAL does not eliminate applicable discovery rules, privileges, or privacy protections. Parents should understand that relevant evidence may be considered, but access to private information remains subject to applicable legal requirements. Our article discussing whether a spouse can subpoena cell phone records during an Illinois divorce addresses some of these issues.

Who Pays for a Guardian ad Litem or Child Representative?

Appointments under Section 506 may create additional litigation expenses. The court may allocate fees and costs according to applicable statutory provisions and the circumstances of the parties. Depending on the case, payment may be ordered from one or both parents or another legally appropriate source.

Because these appointments can involve substantial work, parents should understand the potential financial implications. Individuals preparing for contested litigation may also benefit from reviewing questions to ask your divorce lawyer.

Can a Parent Challenge a Guardian ad Litem’s Recommendations?

A GAL’s recommendations do not automatically determine the outcome of a parenting dispute. The judge remains responsible for deciding the issues presented. Under Section 506, a GAL may be deposed and called as a witness for cross-examination concerning the report or recommendations, and a parent may present other admissible evidence supporting a different conclusion.

Similarly, a child representative’s advocacy position does not bind the court. The court must independently apply Illinois law to the evidence presented, including the statutory factors governing the allocation of parental responsibilities and parenting time.

Can Housing and Financial Issues Affect the Case?

Contested parenting proceedings sometimes involve disagreements over the children’s living arrangements, particularly when both spouses remain in the marital residence during divorce proceedings. Although the court may consider the child’s circumstances, a GAL or child representative does not independently determine which spouse has the right to occupy the home. Our article about whether a spouse can be forced to move out of the marital home during an Illinois divorce discusses the separate legal standards governing that issue.

Financial arrangements may also affect the long-term stability of the child’s household. Child support, healthcare expenses, and insurance requirements can all be addressed in a divorce judgment. For additional information, see our discussion of life insurance requirements for support obligations in Illinois divorce cases.

Conclusion

Guardians ad litem and child representatives both serve important functions in Illinois domestic relations cases involving children. A guardian ad litem investigates and may provide recommendations and testimony, while a child representative investigates and advocates through the litigation process.

Understanding these distinctions can help parents navigate contested proceedings and better understand how the court receives information concerning their children’s best interests. Although the appointed attorney may play an important role, the judge ultimately remains responsible for deciding the disputed issues under Illinois law.