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When you're appointed to serve as guardian ad litem for a child and the parents refuse to pay the court-ordered fee, what can you do? Here are some suggestions gleaned from the ISBA Family Law discussion group.
ISBA discussion groups let you pose questions to and share information with lawyers from Chicago to Cairo. Join at www.isba.org/discussions.
How do you get paid as a GAL?
Eric Frobish, Morris. How are you all going about getting paid as GALs?
In the counties where I practice, the judges pretty much leave us to our own devices. I typically ask for a fee deposit up front as I would in any case, to be divided between the parties however the court orders. So far, so good. Everyone pays the initial deposit.
The problem occurs when either or both parties are unhappy with the GAL report and stop paying. Or there may be legitimate financial issues such that either or both parties can't/won't pay. Lately, the judges I routinely practice before are basically telling me it's my problem and to pursue collection like I would with any other client.
But in those other cases, I would seek to withdraw when my client stops paying me so fees don't rack up. As GAL, I don't have that option. Can I refuse to appear in court for trial? To issue my report? To do any further work until payment?
I don't know a doctor, 604 evaluator, or any other expert who would issue a report or show up to testify without being paid in full up front. However, I don't think I have that option as GAL. Any creative thoughts/ideas/practices?
ISBA lawyers respond
Mark C. Palmer, Champaign. During the case, I file an interim petition for GAL fees and set it for hearing, which rings a loud bell for the parties and (hopefully) the judge.
After the case, I send a "final notice" letter and file a petition for indirect civil contempt (rule to show cause).
Ken Wang, Naperville. Eric, I think you're right - you don't have the ability to refuse to issue a report or testify. Here is how I view it: Even though you are paid by the parents, you were appointed by the court. The two parents were ordered to pay you. If they don't, they are in violation of the court's order. That doesn't give the GAL the ability to also violate the court's order.
I agree with Mark's procedure. You have to directly draw the court's attention to the willful violation(s) of the court's order to pay you.
Janet D. Fuenty, Pecatonica. You can file a motion for a retainer before trial. Set out all the facts in your motion regarding the uncollectability of the fees after the case is complete and ask the court to order the parties to pay an additional retainer. Also file the petition for rule to show cause if they have been ordered to pay and have not done so. And file an updated petition for fees.
Judges in Winnebago County appreciate the GAL's work and will enter orders for trial retainers. There have also been cases where they have ordered bench warrants or taken people into custody for failing to pay.
The thing is, you have to pursue your fees. You have to file the petitions and motions for additional retainers. You have to let the court know that you are having this problem.
Finally, the key to getting paid as a GAL is to keep the collection matter in family court for as long as possible. Once you go to post-judgment proceedings, your opportunity for payment is almost always lost.