It’s Time for Major Reform to Illinois’ Guardian Ad Litem System

It’s time for Illinois legislators, judges and legal practitioners to drastically reform Illinois’ guardian ad litem system for child custody cases.
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Courthouses across Illinois appoint attorneys on a routine basis in custody cases when two parents are unable to agree on a parenting plan for their child(ren).  This court-appointed attorney, known as a guardian ad litem, is given the important task of investigating what is in the best interests of the child(ren).  Their recommendation can be powerful and can help dictate who gets custody.  

Guardian ad litems are supposed to provide the court with a neutral recommendation of what’s in the best interests of the child(ren). Unfortunately, in practice, the system is ripe with perverse incentives that can lead to severe financial and emotional harm to Illinois families. Legal practitioners and Illinois legislators need to inject a major shift into this dysfunctional, yet very needed, cottage industry.

It can happen fast and without much, if any, advanced notice

The appointment of a guardian ad litem in a child custody case is common and can happen quickly. Illinois judges, especially in high population areas where court dockets are overwhelming, are heavily reliant on guardian ad litems to resolve the disputes of parents stepping up before them. If two parents are unable to agree on a parenting plan at mediation or in the early stages of their case, a judge is likely to appoint a guardian ad litem to act as the “eyes and ears of the court” and make a recommendation to the court regarding parenting time and decision-making rights over the child(ren). Except in rare cases where a public guardian or pro bono attorney is available, these unwitting parents find themselves having to pay a private, billable-hour attorney for their child(ren) in addition to paying for their own attorneys.

Cases are frequently delayed due to non-payment

Problems can occur almost immediately after the appointment if one or both parents are unable to pay the guardian ad litem’s retainer fee, which typically ranges from $1,000–2,000 for each parent. Judges do not expect the attorney they appointed to work for free, so if the retainer is not paid it can put the entire case on hold. Urgent child-related disputes (i.e., where the child(ren) should go to school, the correct treatment for a child’s recent medical diagnosis, whether one parent is trying to turn the child(ren) against the other parent) will just have to wait.

For low and middle-income individuals—who are already going through a divorce or custody dispute, just paid to retain their own lawyer, and maybe just found out they have to pay temporary support to their spouse - this can, and often is, the bill that breaks the camel’s back. And it’s just the first of many more guardian ad litem bills to come.

Guardian ad litems are unregulated, allowing conflicts to flourish

The more manipulative of guardian ad litems are allowed to maneuver, without serious regulation, in a divide-and-conquer environment that is easily used to coerce vulnerable families. The more conflict between the parents, the more hours billed for the guardian ad litem, and the more the guardian ad litem gets paid.  Cases often succumb to this dynamic, leaving our courts with a pay-to-play, cash-for-kids element lingering underneath the surface of far too many contested custody battles.

To make matters even worse, the savviest of guardian ad litems have also managed to weaponize well-intentioned interdisciplinary associations of family law judges, attorneys, psychologists, counselors. These associations purport that they are collaborating to resolve family conflict and protect the interests of families and children, but for the parents (and the attorneys representing them) it is hard to ignore that our judges and guardian ad litems are now serving on boards, co-hosting panels, and attending galas with many of the "independent" medical and therapeutic professionals they are appointing to resolve custody disputes.

When they really want to throw the book at a parent, a guardian ad litem will recommend to the court that their favorite local doctor perform a “604.10(b)” or “Rule 215” evaluation. Illinois statute allows judges to appoint independent medical and therapeutic professionals to further assist them when making final custody decisions. The cost for a full custody evaluation, after all collaterals are contacted and the final written report is produced, will tack on another $20,000-$30,000 for the family. It will also delay any movement in the case by several months, prolonging already protracted litigation.

​Guardian ad litems are then allowed to have multiple conversations with their hand-selected medical evaluator before the final report is produced to the judge, despite having a pre-existing professional relationship with the evaluator and a pre-existing opinion about each parent. Turning a blind eye to these obvious conflicts, our judges and lawyers allow these interdisciplinary partnerships to expand at the expense of Illinois families.

The current system is harming the circuit court’s credibility

The harm to the circuit court’s credibility, caused by this systemic dysfunction, is palpable. This unchecked power bubble erodes the trust of a system that has little to spare. Most of our clients express a deep distrust of the family law system and believe it is broken. Their goal is to survive their case, not to achieve positive outcomes through it. Some resign to apathy, while others fall into despair. That should cause alarm to legal practitioners. Instead, it is mostly business as usual in the courtroom throughout the State.

There are without question guardian ad litems who are excellent attorneys, charge reasonable rates, perform thorough investigations and make quality recommendations to the courts even when they are owed money. If all the guardian ad litems in the State acted like this, maybe the current system would work. But that is not the world we live in nor is it one we should expect to live in. As a result, the good guardian ad litems fill up quickly, are overworked, at capacity, and often unable to take on new cases. When they do take on a new case, they are too busy to get it done expeditiously and the delays can be just as harmful in other ways.

Possible reforms for legislators, judges and attorneys

There are a multitude of actions that legislators, judges and attorneys can make, in their respective positions, to alter or eliminate these dynamics and create a healthier process for the resolution of custody cases for the people of this State. This includes initiating far more rigorous training requirements for attorneys who want to become guardian ad litems, warning parents in advance of the consequences of failing to agree on a full parenting plan at mediation, limiting the number and types of cases where guardian ad litems are appointed, establishing internal quality review systems to hold guardian ad litems to account for unethical behavior, expanding public guardian programs across the state, and strengthening existing legislation to curb the role of guardian ad litems and their billing practices.   

But first we need to agree that the current guardian ad litem system is dysfunctional and that fixing it is a top priority for the legal profession.

Written by Brian Gilbert, Chicago Advocate Legal, NFP Co-Founder and Financial Director.