The Law Office of Matthew M. Williams, P.C.

630-409-8184

1444 North Farnsworth Avenue, Suite 307, Aurora, IL 60505

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North Aurora family law attorney guardianship

For many people, making the decision to establish legal guardianship over someone is a rather difficult and emotionally stressful decision to make. However, establishing legal guardianship of your loved one can often be the only way to ensure that he or she is safe and protected in some situations. Guardianship is a way of establishing legal authority over another person in the event that he or she becomes incapacitated or is unable to make decisions. In Illinois, guardianship can be established over a minor who is under the age of 18, or an incapacitated adult. If you are contemplating establishing guardianship over a family member or friend, you likely have questions about guardianships in Illinois and the process of establishing it. The following are a few frequently asked questions and their answers about Illinois guardianship.

Who Is Eligible to Have a Guardian Appointed to Them?

When a person turns 18, he or she is automatically presumed to be of sound mind and able to make responsible decisions for himself or herself. However, a person can be appointed to serve as someone’s guardian if he or she is disabled because of mental deterioration, physical handicap, mental illness, or developmental disability.

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Aurora divorce lawyer GAL child representativeAlmost anything that happens in the Illinois legal system that has to do with children revolves around what is in the child’s best interests. In the majority of divorce cases, at least one, but sometimes both of the parents, understand what would be in the child’s best interest. In some divorce cases, parents can become so blind with hate that the best interests of the child are lost, which is when a child representative steps in. Cases involving child support, the allocation of parental responsibilities, parentage, allocation of parenting time, relocation with the child, or even just the child’s general welfare can all be assigned representation for the child.

Types of Representation

The state of Illinois provides for three options when it comes to the representation of the child:

  • An attorney for the child

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Illinois divorce attorney, Illinois family lawyer, Illinois guardian ad litemIn divorce cases that are less-than-amicable, things can get heated and they usually get heated quickly. While most divorce cases involve children, those cases can often be the most stressful to deal with. Each parent truly wants what is best for their child, but because of the situation, thoughts on what is best for the child may become skewed or muddied with all of the other feelings that the parent may be feeling toward their spouse. In situations like these, the judge or either of the parents is allowed to request a guardian ad litem (GAL) to be a part of any child-related decisions.

What Is a Guardian ad Litem?

In Latin, guardian ad litem literally translates to “guardian for the lawsuit.” In modern-day divorce cases, a guardian ad litem is typically assigned to cases when they are ordered by the judge, but either spouse of the divorce can request a guardian ad litem for their child. The guardian ad litem is a guardian appointed to your specific case and is tasked with the role of protecting the interests of the child.

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custodyDivorce is not a walk in the park--some divorce cases can become extremely nasty pretty quickly. Unfortunately, in cases where there is a lot of fighting between spouses, the children often get lost in the shuffle. The parents are so preoccupied with fighting with each other that the best interests of their children often get pushed to the bottom of the pile, even if it is unintentional. Illinois courts recognize that divorce can wreak havoc on the emotions of those going through the divorce process, so they have put measures into place to make sure that the best interests of the children involved in these divorce proceedings are kept at the forefront.

When Is a Child Representative Used?

The Illinois Marriage and Dissolution of Marriage Act states that any proceeding that deals with issues of support, visitation, custody, allocation of parental responsibilities, education, parentage, property interest or general welfare of a dependent child warrants a reason for the court to appoint a representative of some kind for the child involved in the hearing. There are three types of representation that is recognized in Illinois:

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guardian ad litem, children, DuPage County Child Custody AttorneyWhen you are involved in a dispute over child custody or other concerns related to your children, it can be difficult to maintain objectivity, especially if the relationship between you and the other party is not ideal. Divorce situations are especially prone to acrimony and contentiousness, and unfortunately, the best interests of the child can be somewhat lost among the myriad of other considerations. A court-appointed attorney known as a guardian ad litem, however, can help refocus the proceedings on the child’s well-being, thanks to provisions contained in Illinois law.

What is a Guardian ad Litem?

Unlike other types of guardianship, such as those covered by the Illinois Probate Act, which provide far-reaching authority over another person’s interests for an indefinite period of time, the guardian ad litem, or GAL, is appointed for a specified proceeding. In fact, the Latin phrase “ad litem” translates to English as “for the suit.” While GALs may serve similar purposes in other areas of law, they are most commonly utilized in family law situations on behalf of a child’s interests. In Illinois, a GAL is required to be a licensed attorney, properly trained and qualified to serve in such a capacity.

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child custody, preference of the child, Illinois family lawyerNegotiating arrangements regarding child custody can be particularly challenging after a divorce or for parents who were never married. Some parents are able to work out an acceptable agreement between themselves that takes into account the best interest of the child, while balancing the ability of each parent to provide for him or her. Others, however, cannot reach an agreement on their own and must rely on the court to make a determination for custody. Each parent often has an idea of what they would like, and often, so does the child. In many cases, the child’s wishes can influence the court’s decision.

The Child’s Wishes

It is important to understand that a child’s preference regarding custody arrangements represents only part of the court’s necessary considerations. How big a part it plays, however, must be handled on a case-by-case basis, depending on the maturity level and decision-making ability of the child. Under Illinois law, there is no set age at which a child is able to definitively decide on a custody matter; instead, his or her wishes may be given more weight based on the child’s ability to recognize what is in his or her own best interest.

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Illinios divorce attorney, Illinois family law attorney, parental rights,Moving forward with a divorce can become a bit crowded - two spouses, two qualified divorce attorneys, perhaps a business evaluation professional, but most innocently, the children. If your divorce involves legal discussions of child custody, add yet to the mix, the 604(b) professional evaluator. As mandated by the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5), Section 604(b) there are evaluation criteria that must be taken into consideration when implementing court-ordered child custody agreements.

Under Section 604(b), a "Best Interest Test" is conducted by a licensed child psychologist or psychiatrist. These professionals are usually experienced in the Illinois child custody procedure but are instructed to complete the interview as a neutral third party. This process is often expensive and lengthy, taking up to 90 days to complete.

The assigned evaluator will spend a significant amount of time with the child before rendering a neutral determination. Scheduled interviews with both parents as well as other adults involved in the child’s life may also be initiated during the process.

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GAL, CR, Illinois family law attorney, Illinois child custody lawyer, In any court proceeding dealing with child custody or visitation, Illinois law permits the court to appoint an attorney to represent the child or children. Due to the contentiousness that often arises between the adults in such cases, it is an unfortunate reality that sometimes the best interests of the child can get lost in the chaos. When deemed necessary, the court assigns attorneys most often as either a guardian ad litem (GAL) or as a child representative (CR).

Guardian ad Litem

While a guardian ad litem must be an attorney, its primary function is as an expert witness operating as an extension of the court. An attorney must be properly trained and certified to act as guardian ad litem. Once appointed, the GAL is granted investigative powers to determine what he or she believes to be the true best interest of the child. The GAL may interview the child, both parents, and any family members relevant to the child’s situation. He or she will also study the lifestyle and home life of the family and review any previous legal proceedings.

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 Aurora family law attorney, child attorney, child custody ethics, child development, custody determination, guardian, guardian ad litem, Illinois divorce proceedings, Illinois family lawyerIn divorce proceedings, parents may agree completely on the custody and treatment of dependent children. Yet when this is not possible, the court may appoint an individual to aid in the process. This individual will fill one of three roles: a child representative; a guardian ad litem (GAL); or a child attorney. It is essential to make yourself aware of their duties, qualifications, and impact on custody.

In the case of an older child, a child’s attorney may be appointed to represent the best interests of the parties’ child/children in exactly the same role as would an adult be counseled. However, with younger children, either a child representative or guardian ad litem (GAL) may be appointed. The difference between the two is that only the GAL may be summoned to testify in court; as the very need for the involvement of such an official stems from disagreement. The likelihood of the divorcing parties wishing to contest or examine the findings of a third party will more often dictate the appointee being a guardian ad litem.

Qualifications and Duties of a Guardian ad Litem

As an attorney for the child(ren) a guardian ad litem is required to investigate the facts of the case and interview children and parents. The GAL is also required to report to the court – either in testimony or in writing – the recommendations in accordance with the best interests of the child(ren).

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If you are headed to court to discuss child custody, you might be wondering the purpose of a guardian ad litem. This court-appointed attorney is sometimes brought into the fray to provide an additional opinion regarding the best interests of the children. The guardian ad litem in your case will craft a report with recommendations for custody, so it’s important that you understand the role this individual can play during your divorce and after you have received your decree.

guardian ad litemIllinois statutes require that guardians ad litem be able to interview the children without any impediments or limitations. This is usually done early on through an order that provides access to the child and any necessary documents that might relate to the child.

The guardian ad litem is responsible for reviewing all of the materials and making custody recommendations, typically in a report presented to the judge. The judge doesn’t necessarily have to rely on the guardian ad litem’s recommendations, but in most scenarios, this will factor into the final custody decision handed down by the court.

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The Law Office of Matthew M. Williams, P.C.

630-409-8184

1444 North Farnsworth Avenue, Suite 307, Aurora, IL 60505

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