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Kevin O'Flaherty

In this article, we explore what conflicts of interest a guardian ad litem (GAL) may be subject to if unaware of the law and answer the following questions:

  • What is a guardian ad litem?
  • What does a guardian ad litem do in an Illinois child custody case?
  • What conflicts of interest can arise for the guardian ad litem between family members?
  • What conflicts of interest can arise for the guardian ad litem in representation?

What is a guardian ad litem in an Illinois custody case?

A guardian ad litem is an individual appointed by the Illinois court to a custody or visitation case. That individual is often a family law attorney, but can also be a mental health professional or volunteer from another profession. Any party involved in an Illinois custody case, or the judge, can ask for the appointment of a guardian ad litem.

What does a guardian ad litem do in an Illinois custody case?

While a judge will ultimately hand down the ruling in a custody case he or she will often need more information in order to make the right decision. In Illinois, a guardian ad litem’s role is to conduct an investigation into the child’s family life and living situation and report back to the judge. The guardian ad litem will give her recommendation and opinion on who should have custody, whether joint or sole custody is appropriate, and what visitation allotment the other parent should have. To learn more about the role of a guardian ad litem in a child custody case check out Guardian Ad Litem In Illinois Custody Cases Explained and Guardian Ad Litem Frequency Asked Questions.

What Conflicts of Interest Can Arise For the Guardian Ad Litem Between Family Members?

A guardian ad litem must be aware of what conflicts of interest may arise in child custody cases. Conflicts of interest regularly arise between family members in child custody cases, especially in families involving multiple children. If a GAL anticipates being appointed to a sibling group she should take time to review all the available information on the family prior to speaking with each child. A discussion with the DCFS investigator associated with the case, and any documentation available is also warranted. Having all this information before speaking with the children can alert the GAL to any potential conflicts of interest that exist between the children, such as:

  • Physical abuse of one sibling by another;
  • Sexual abuse of one sibling by another;
  • One child victimizing another;
  • One child desires to return home or stay with the parents while another does not; or
  • A hostile environment created by one sibling towards another

If a GAL determines that a potential conflict of interest exists she should take immediate action to rectify the situation. Often, the easiest way to resolve these situations is to have a different GAL represent each child involved in the custody case. It’s also important to note that an attorney, and acting GAL, cannot represent the child in a child custody case and later represent a parent, this creates a clear conflict of interest.

What Conflicts of Interest Can Arise For a Guardian Ad Litem in Representation?

Even though it is very common for an attorney to be the GAL for the child there may be inherent conflicts of interest for the attorney to be representing the child legally in a court of law. A common source of conflict of interest in child custody cases occurs when the GAL believes it is in the best interest for the child to not return home with the parents but the child wishes the opposite. The GAL’s primary role is to determine what custody arrangement is in the child’s best interest and to inform the court of her opinion and recommendation. If the GAL believes that a conflict of interest exists or has the potential to arise she should take swift action in resolving the conflict and inform the court of her findings and plan of action. If the child opposes the GAL’s plan the GAL should include the child’s wishes in her report to the court so that the judge can make an informed ruling on the case.

Ultimately, there are a number of conflicts of interest that can arise in a child custody case between the family members, legally between the GAL and child, and between the GAL’s recommendation and the child’s wishes. It is not uncommon for the court to appoint a separate attorney from the attorney acting as the child’s GAL in order to avoid any potential issues that may arise during the case.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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