The Journal of The DuPage County Bar Association

Back Issues > Vol. 23 (2010-11)

Discoverability of the Notes of Guardians Ad Litem In Domestic Relations Proceedings
By Anne Knight and Sean McCumber

Guardians ad litem [“GAL”s] are often appointed in domestic relations matters as a means to both assist in the settlement of custody and visitation disputes and to protect the best interests of minor children in such matters.  The Illinois Marriage and Dissolution of Marriage Act (“IMDMA”)[1] thus provides that:

“In any proceedings involving the support, custody, visitation, education, parentage, property interest, or general welfare of a minor or dependent child, the court may, on its own motion or that of any party, appoint an attorney to serve [as guardian ad litem].... The guardian ad litem shall testify or submit a written report to the court regarding his or her recommendations in accordance with the best interest of the child. The report shall be made available to all parties. The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem's report or recommendations.

The GAL’s obligations to the court are further delineated in Illinois Supreme Court Rule 907:[2]

(a) Every... guardian ad litem shall adhere to all ethical rules governing attorneys in professional practice, be mindful of any conflicts in the representation of children and take appropriate action to address such conflicts.
(b) Every... guardian ad litem shall have the right to interview his or her client(s) without any limitation or impediment.... [T]he trial court shall enter an order to allow access to the child and all relevant documents.
(c) As soon as practicable, the ... guardian ad litem shall interview the child, or if the child is too young to be interviewed, the attorney should, at a minimum, observe the child. The... guardian ad litem shall also take whatever reasonable steps are necessary to obtain all information pertaining to issues affecting the child, including interviewing family members and others possessing special knowledge of the child's circumstances.
(d) The... guardian ad litem shall take whatever reasonable steps are necessary to determine what services the family needs to address the custody dispute, make appropriate recommendations to the parties, and seek appropriate relief in court, if required, in order to serve the best interest of the child.
(e) The... guardian ad litem shall determine whether a settlement of the custody dispute can be achieved by agreement, and, to the extent feasible, shall attempt to resolve such disputes by an agreement that serves the best interest of the child.

As part of their duties as investigators and fact-gatherers, GALs often take notes and log the facts of their investigations.   Invariably, GALs memorialize their mental impressions and theories of the dispute in their notes.  The question of whether those notes may be subject to discovery in a domestic relations matter has not yet been addressed by the Illinois courts.

The Argument In Favor of Disclosure.  A GALs notes are not protected by the attorney-client privilege, because, notwithstanding the references in Rule 907 to the GAL’s “client,” a GAL is not considered an attorney for any party to the case. The Illinois courts have not specifically addressed this issue, but several other states have considered the matter.  In Hogan v. Hogan,[3] for example, an Ohio appellate court found that:

“Yauch cannot claim that an attorney-client privilege existed between her and the Hogans' children, nor can Yauch claim that her files regarding the children are entitled to any privilege under the work product doctrine.... The work product doctrine allows a party to obtain materials prepared in anticipation of litigation or for trial by or for a party, or by or for a party's attorney or other representative “only upon a showing of good cause therefor.” In this case, however, Yauch never acted as an attorney or other representative for one of the parties. Therefore, Yauch's files were not protected from disclosure under the work product rule.”[4]

In cases like Hogan, the courts found the GAL’s notes were not protected under the attorney client privilege or as work product.  Each of these cases involved the application of the laws of its respective state, but Illinois law is subject to a comparable analysis.  Illinois Supreme Court Rule 201(b)(2) states, “Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.”[5] 

The attorney work product doctrine is “designed to protect the right of an attorney to thoroughly prepare his case and to preclude a less diligent adversary attorney from taking undue advantage of the former’s efforts.[6]  The role of the GAL is distinct from the role of an attorney. As one court concluded,  “[a] guardian ad litem functions as the ‘eyes and ears of the court’ and not as the [child’s] attorney.”[7] 

The Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) allows the court in its discretion to appoint an attorney for the child, a child representative, or a GAL for the children.  A court-appointed attorney provides independent legal counsel for the child and follows the child’s wishes as to legal representation.  A child representative functions as somewhat of a hybrid between attorney and GAL, but still always acts for the best interests of the child, not for the child’s wishes.  If the court appoints a GAL, the GAL investigates the situation for the Court, and either testifies or submits a written report to the court regarding his or her recommendations in accordance with the best interest of the child.  Essentially, the GAL serves to inform the Court as to what course of action would be in the child’s best interest. While those two roles can overlap, they can also contradict one another.

Returning to rule 201(b)(2), notes prepared by the GAL cannot contain “theories, mental impressions, or litigation plans of the party’s attorney”[8] because the GAL is not the party’s attorney.   Nowhere in the IMDMA, nor in the Series 900 Rules of the Illinois Supreme Court does it say that the GAL becomes a party to the litigation.   The role of the GAL is to investigate the situation and advise the court as to the course of action that would be in the child’s best interest, rather than advocate for the position of one party or the other.  The only time the GAL can even seek relief for the child is when it serves the best interests of the child and is appropriate to do so.[9]  No case has described this scenario, but if the parties each have counsel, and counsel is required to always act with the child’s best interests in mind,[10] then the GAL should not find additional litigation appropriate.

A further distinction between a GAL and a child representative or attorney for the child is that the GAL may be called to testify at the hearing and be subject to cross examination.[11]  Therefore any information discovered in the GAL’s notes can be tested through the hearing process. In contrast, notes of an attorney for the child or child representative would not be subject to the same scrutiny. Since the GAL is not acting as an attorney, his or her notes are not protected as attorney work product.

Finally, public policy and the general principles encouraging disclosure, support limiting any restriction on a parent’s access to records and information relating to his or her child.[12]  Specifically, subsection  750 ILCS 5/602.1(e) provides:

“Notwithstanding any other provision of law, access to records and information pertaining to a child, including but not limited to medical, dental, child care and school records, shall not be denied to a parent for the reason that such parent is not the child’s custodial parent.”[13]

The attorney work product doctrine is a narrow exception to the general guiding principle encouraging broad disclosure in furtherance of ascertaining the truth.[14]  In light of these two policies, it is improper to accept such a broad interpretation of the attorney work product doctrine to encompass a court-appointed GAL. 

The GAL is not acting as an attorney but rather as the eyes and ears of the court. To permit the work product doctrine to bar disclosure of the GAL’s notes would obstruct the legislature express interest in allowing parents access to records and information relating to their children. Lastly, the American legal system favors disclosure of information in search of the truth; broadening the doctrine to apply to the GAL’s notes would impede this preference.

The Argument Against Disclosure.  The appointment of a GAL is not a mere formality, but a substantive act.[15]  The GAL has a duty to understand the cause of action and the rights of the parties, and to call them to the attention of the court.[16]  The GAL brings the minor’s interests to party status in contested litigation, and is charged with defending the interests of the minor child.[17]   The GAL acts as a party to the litigation on the child's behalf.[18]  Stated another way, while the child does not actually become a party, the child in fact enjoys party status because the child can fully participate in the custody aspects of litigation through a GAL.[19]  Further, it is the duty of a GAL to examine the issues in the case and determine what the rights of the ward are, and to make such defenses as the ward’s interest demands.[20] 

As a party to the litigation, the GAL possesses all the powers of a pro se party in all stages of the litigation including pre-trial proceedings, discovery, and trial proceedings.  The notes of the GAL are work-product and not subject to disclosure under the work-product doctrine. Much like a pro se litigant, the notes of the GAL contain his or her mental impressions, his or her strategy to protect the best interests of the minor children, and his or her thoughts and feelings regarding any facts uncovered during the investigation.   In any trial, a pro se litigant may conduct an investigation of witnesses and prepare trial notes, essentially the litigant’s work product.  The pro se litigant cannot be compelled to turn over his or her work-product, and the same applies to the GAL. Illinois Supreme Court Rule 201(b)(2) states:

“Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party's attorney.”

Rule 201(b)(2) sets out the parameters for the scope of the discovery of work-product materials.[21]  The work-product doctrine is designed to protect the right of an attorney or party to thoroughly prepare his case and to preclude a less diligent adversary attorney from taking undue advantage of the former's efforts.[22]   It is not the job of the GAL to conduct the investigation for the benefit of the Plaintiff, nor for the benefit of the Defendant, but rather for the Court.  More importantly, the GAL serves the best interests of the child in a domestic relations case.   What is in the child’s interest may align with the wishes of a party or, more likely, may not align with the wishes of either party.   The parties certainly have the right to test the GAL’s recommendations and learn how the GAL came to his or her recommendations. 

GALs are subject to being called to testify and to cross-examination.   The mere fact that they are potential witnesses, however, does not mean their notes are discoverable.   If a pro se litigant, representing himself in a custody battle, a civil lawsuit, or foreclosure action, takes notes and writes down his or her mental impressions, the other side would not get that litigant’s notes simply because the litigant is not an attorney in the matter.   In testing the GAL’s work or recommendations, the parties themselves may certainly depose each other and either party may conduct depositions and interview witnesses and other third parties, including the GAL, to garner evidence and the bases for opinions and recommendations.  

To permit a party to obtain the notes of the GAL stifles the work of the GAL.   If a party knows that what the GAL takes down in his or her notes is discoverable, the party might disclose less or be less than complete in sharing information.   The GAL also faces a compromised investigation because if the notes contain the GAL’s mental impressions of what the party is stating, the GAL may then face limited disclosure after the notes are turned over.  

Another concern is the already growing trend of litigants filing complaints with the ARDC after a GAL report or recommendation is issued or stated.  Notes of a GAL are not sacrosanct, but the work-product doctrine does require a party requesting notes to verify that the notes are the only source of this information and that there is no other way to obtain the information.[23]  The GAL is not an all-powerful supreme being in domestic relations matters, but to take the notes of the GAL and subject them to discovery does not serve the best interests of the child and actually increases the cost and the intensity of litigation – which the 900 Series Rules of the Illinois Supreme Court[24] were designed to prevent.

[1]750 ILCS 5/506(a)(2).

[2] Ill. Sup. Ct. R. 907.  Although the quoted sections here refer only to GALs, the statute imposes the same obligations upon “[e]very child representative, attorney for a child and guardian ad litem.”  Id. 

[3] Hogan v. Hogan, 2003 WL 22073132 (Ohio App. 2003).

[4] Hogan v. Hogan, 2003 WL 22073132 (Ohio App. 2003).  See also Linnel v. Linnel, 49 Conn. L. Rptr. 386, 2010 WL 1224368 (Conn. Super. Ct. 2010); Culbertson v. Culbertson, 2007 WL 2702450 (Ohio App. Ct. 2007).

[5] Ill. Sup. Ct Rule 201(b)(2).

[6] Cangelosi v. Capasso, 366 Ill.App.3d 225, 228, 851 N.E.2d 954 (2nd Dist. 2006), quoting Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc.,189 Ill.2d 579, 727 N.E.2d 240 (2000).

[7] In re Mark W., 228 Ill.2d 365, 374, 888 N.E.2d 15 (2008) (citations omitted).

[8] 166 Ill.2d R. 201(b)(2).

[9] Ill. Sup. Ct. R. 907(d).

[10] 750 ILCS 5/508(f)(4).

[11] 750 ILCS 5/506(a)(2).

[12] 750 ILCS 5/602.1.

[13] 750 ILCS 5/602.1. See also Hogan v. Hogan, 2003 WL 22073132  at ¶¶ 22-29 (Ohio App. 2003) (relying on a similar provision of the Ohio law to support its determination that the notes of the guardian ad litem were not protected as attorney work product).

[14] Allianz Ins. Co. v. Guidant Corporation, 373 Ill. App. 3d 652, 676, 869 N.E.2d 1042 (2nd Dist. 2007).

[15] Rom v. Gephart, 30 Ill.App.2d 199, 208, 173 N.E.2d 828, 832 (1st Dist. 1961).

[16] McCarthy v. Cain, 301 Ill. 534, 539, 134 N.E. 62 (1922).

[17] See Wreglesworth v. Arctco, Inc., 316 Ill. App. 3d 1023, 738 N.E.2d 964 (1st Dist 2000); Ott v. Little Company of Mary Hospital, 273 Ill.App.3d 563, 652 N.E.2d 1051 (1st Dist. 1995).

[18] In re Griesmeyer, 302 Ill.App.3d 905, 913-14, 707 N.E.2d 72, 78 (1st Dist. 1998); In re the Marriage of Apperson, 215 Ill. App. 3d 378, 385, 574 N.E. 2d 1257, 1261 (4th Dist. 1991).

[19] See In re Marriage of Tzoumas, 187 Ill.App.3d 723, 543 N.E.2d 1093 (2nd Dist. 1989).

[20] Stunz v. Stunz, 131 Ill. 210, 23 N.E. 407 (1890).

[21] Shapo v. Tires ‘N Tracks, Inc., 336 Ill. App. 3d 387, 782 N.E.2d 813 (1st Dist. 2002).

[22] Fischel & Kahn, Ltd. v. Van Straaten Gallery, Inc. 189 Ill.2d 579, 727 N.E.2d 240 (2000).

[23] See, e.g. Waste Management, Inc. v. International Surplus Lines Ins. Co., 144 Ill.2d 178, 200, 579 N.E.2d 322 (1991).

[24] Ill. Sup. Ct. R. 901-942 (Article 9: Child Custody Proceedings).

Anne Knight is a staff attorney with the 18th Judicial Circuit Court and an adjunct professor at the College of DuPage. She obtained her undergraduate degree in psychology from the University of Illinois in 2002. In 2008, she received her law degree from Thomas Jefferson School of Law in San Diego, California. While in law school, she served as Co-Chief /Notes Editor of Thomas Jefferson Law Review, and as chair of the school’s Public Interest Law Foundation’s Career Committee. She is also a 2008 winner of the Burton Award of Legal Achievement.

Sean McCumber is a partner at Sullivan Taylor & Gumina, P.C. in Wheaton, Illinois. He received his J.D. from The University of Illinois College of Law, where he also was an on-air personality at WPGU-FM, in 1998. He concentrates his practice in family law, adoptions, and juvenile law. He is the Chairman of the DCBA Family Law Committee.

 
 
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