The History of the Guardian Ad Litem

iStock_000015020806Small02Years ago, courts primarily used a Guardian Ad Litem (“GAL”) in adoption and paternity cases.  The significance and importance of a GAL was espoused by the Illinois Appellate Court in Pavia v. Marshall.  In 1991, Mr. Pavia filed a petition for non-paternity against Ms. Marshall regarding her daughter.  Although she was properly served, Ms. Marshall did not respond to the proceedings, and on December, 1993, a court order was entered finding the non-paternity of Mr. Pavia by default.

In 2008, Mr. Pavia died in an automobile accident and the Probate Court found that his heirs were his mother and brothers.  Thereafter, Ms. Marshall’s daughter brought a petition to vacate the order finding no parentage and to declare her to be the child of Mr. Pavia.  The Appellate Court ruled that because no GAL was appointed on behalf of the child in the paternity proceedings, the child’s interests were not represented.  The Court held that a GAL should have been appointed for the child, and, absent the same occurring, vacated the finding of non-paternity.

The importance of a GAL was recognized by the Illinois Legislature when, in 1988, it created the Office of Public Guardian for Cook County.  As a result, Cook County courts had available to them the opportunity to appoint a Cook County Public Guardian in any case where a child or disabled person needed an advocate to represent his or her best interests.  However, the Public Guardian was not used in domestic relations cases until years later.

One could ask:  In a domestic relations case, why would you need a guardian for the children when you have both parents representing themselves and what is, in their respective opinions, in the best interest of the children?  The answer is that a trend was developing in divorce cases: parties were creating contested issues regarding custody and visitation and leveraging the conflict in issues of support and property division.   The result was a delay in amicably resolving all issues.  However, more importantly, the issue of the children’s best interests was not being addressed.

As a result, Cook County developed a family services counseling program.   The program was designed to assist the parties in a conciliatory manner to resolve custody and visitation issues without regard to property and child support issues.  The court had authority to order parents to the conciliation service and to attend sessions as required by the conciliation service.  However, the family counselors did not have investigatory authority nor the right or obligation to report to the court.  Although Cook County had available to it a public guardian’s and the conciliation services, other Illinois counties did not.

In 1977, the Illinois Legislature adopted Sections 604 and 605 of the Illinois Marriage and Dissolution of Marriage Act.  Section 604 gave the court authority to seek advice from professional personnel as to child related issues.  The professional rendering the advice could be called by either party as a witness or by the court.   The problem that existed at that time, however, was that there were very few professionals available to effectively assist the court in determining the best interests of the children.  When the parties lacked resources, Section 605 gave the court authority to appoint the Department of Children and Family Services, or a welfare agency approved by the Department, to investigate custodial arrangements of a child.  The selected agency would furnish a written report that could be considered by the Court.

Around 1985, the DuPage County Circuit Court adopted a program requiring custody and visitation issues to be investigated by a prescreened clinical psychologist.  The psychologist was to issue a written report to the court and attorneys and testify regarding the report.  The psychologist was also authorized to provide psychological testing to assist in determining what was in the child’s best interest.  This was the first such program in the State of Illinois, and, as a result, contested custody and visitation trials were reduced by 70% in the first year of its existence.  A trend began to develop: there was an increase in programs with licensed clinical psychologists who assisted the court and the parents find a path that would lead to the child’s best interests.  That trend resulted in a substantially decreased need for the appointment of a GAL for the children.

As the years went on, the clinical psychologist process became exceedingly expensive.  The alternative was for the courts to reconsider using GALs instead of psychologists to represent the children’s interests in litigation.  Time will tell whether the appointment of a GAL is actually more economical.  The legal profession continues to search for solutions to resolve custody and visitation issues without adversarial trials.  The goal is to accomplish a resolution that is truly “in the child’s best interests.”

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