Some child custody cases can get extremely heated, or sometimes there can be issues surrounding what custody arrangement may truly be in the best interests of the child or children involved. When this happens, the judge in the case may choose to involve a volunteer attorney to ensure that the children’s interests are truly represented. This attorney is referred to as a guardian ad litem (GAL), and their presence in a custody case can confuse and anger parents, though there is no need for it to happen. Understanding what the GAL’s role is can help minimize ruffled feathers and ensure that all are working toward the best possible outcome of your divorce vis-a-vis your children.

Fact Finders

A GAL can be named in any custody case, on the motion of either party or on the court’s own authority (in any county in Illinois). Regardless of who makes the motion to bring in a GAL, one will generally be appointed in a custody case only when there are certain facts at issue that require an impartial observer, as the job of a GAL is to be impartial. A GAL acts exclusively in the best interest of the child, reporting only to the court in terms of their findings.

If you and your spouse have any children, one of you will be ordered to pay child support starting after your divorce proceedings, as well as possibly spousal support. While the court’s decision must stand for the moment, it is possible to modify either support order after enough time has passed. The law holds that there must have been a “substantial change in circumstances” in order to do so, however, and that vague term can sometimes cause confusion.

Timelines Matter

Unlike in other states, a child support or spousal support order may be modified by the court anytime after its entry, though the timing will be scrutinized to ensure that it is being requested for appropriate reasons. (In other words, a modification requested solely to vex the other parent will not only be denied, it may result in a contempt of court citation for the requester.) Also, any support obligation that is already due and owing may not be retroactively modified, even if your request is granted.

During a divorce or custody proceeding, a phrase that comes up with regularity is the “best interests of the child.” This is the standard used by the court to arrive at final decisions on issues like parenting time, but it can sometimes be defined in confusing ways, especially because the same standard can be used for multiple different issues. If you are going to court to discuss custody issues, having an idea of what this standard actually means can be a big help to you.

Parents’ Decisions Usually Honored

First and foremost, it helps to know that the court will only become involved in custody-related questions in some cases, not all. Generally, a court will honor any agreement that you and your spouse come to regarding parenting time, support, and any other issues like healthcare or education unless that agreement can be shown to be manifestly unreasonable. For example, the court will not permit a couple to put all the financial burden of care for a child onto the spouse who makes less money. If you cannot agree or the agreement is unconscionable, the court will step in.

When parents split up, it is not always done with a complete plan in place as to how the couple will share time with the children or parental responsibility. This can sometimes lead to disagreements as to which parent will keep the children and how often the other parent will see them. These disagreements are best settled with a court order, and parents can file for an emergency order while the divorce is pending.

Because both parents have parental rights when it comes to their children, unless a court has previously terminated those rights, each parent has a right to keep the children when the parents are separated. For example, the parents have an informal agreement that the children will stay in the marital home with the mother and visit the father. If the father takes the children for a visit and then decides not to return the children to their mother, the mother would have little recourse without going to court.

Even if the mother calls the police, the police are unlikely to take any action unless the children are in danger. Because both parents have legal rights to have physical custody of the children, the father is not technically breaking any law by keeping the children. The father is only breaking the terms of the informal agreement with the mother.

The state of Illinois recognizes that many children may experience negative short-term and long-term effects related to their parents' divorce. To help mitigate the impact, parents with minor children who file for divorce are required to attend and complete a class. DuPage County offers a helpful summary of the parent education requirement and information about enrolling in the mandatory class.

What is the Law?