Pursuant to 750 ILCS 5/506 (a) “in any proceedings involving the support, custody, visitation, allocation of parental responsibilities, education, parentage, property interests, 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 in one of the following capacities to address the issues the Court delineates: … (2) Guardian Ad Litem. The Guardian Ad Litem shall testify and 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 Guardian Ad Litem shall investigate the facts of the case and interview the child and the parties.”
Often in a parenting time case, Courts also order parties or children to therapy to attempt to establish a parent child relationship, to deal with perhaps issues of drugs, alcohol, domestic violence, or for many or any purposes. The Court has the power to order this pursuant to 750 ILCS 5/607.6.
In that Section, the Court has the power to order individual counseling or parental education for one or more of the parties if certain findings are made. The Court also has power to enter an order, if the parties agree to the order, if the physical health of the child is in endangered or the child’s emotional health is impaired, if an abuse of allocated parenting time under Section 606.5 has occurred or “one or both of the parties have violated the allocation judgment with regard to conduct effecting or in the presence of the child.”
Frequently the Guardian Ad Litem requests releases from the parties ordered to go to therapy or from the parents of the child ordered to go to such therapy or counseling so that the GAL can interview the counselor and gain insight and information. Often that information is used by the GAL in making a recommendation or is put into the report to the Court.
The last sub-section in 607.6 says “all counseling sessions shall be confidential. The communications in counseling shall not be used in any manor in litigation nor relied upon by any expert appointed by the Court or retained by any party.”
In a case entitled Wilson v. Clark, 84 IL 2d 186 (1981), 417 N.E. 2d 1322 (1981) the Illinois Supreme Court had to decide the issue of whether an expert witness could testify based on facts that were not properly admitted into evidence. In this case, a medical malpractice case, Dr. Clark’s expert testified based on hospital records that were “admitted into evidence without a proper foundation.” 84 Ill. 2d 191. In the next sentence, the Illinois Supreme Court said “however, we believe it is unnecessary for hospital records to be admitted in order to elicit an expert medical opinion.” 84 Ill. 2d 192.
The Court then cited the Federal Rules of Evidence, Rule 703, “the facts or data in the particular case upon which an expert faces an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” 84 Ill. 2d 193.
In an effort to streamline litigation, the Illinois Supreme Court said “generally it is extremely time consuming to call into court every person who made an entry in the hospital records. We hold that, in the future, as later stated due to the high degree of hospital records, an expert may give his response to a hypothetical question based on facts containing those records, even if the hospital records are not in evidence.” 84 Ill. 2d. 194. The Court then acknowledged that this is a change in Illinois Law and only applied to cases filed after the date of this opinion “only if trial commences on or after September 1, 1981.” 84 Ill. 2d. 196.
I suppose the next question is, is a Guardian Ad Litem an expert? The answer is probably not. An expert is one whose testimony is only necessary when the subject is both particularly within the witness’s experience and qualifications and beyond that of the average juror and one that will aid the jury in reaching its conclusion. Paragraph 23 of People v. Lerma, 2016 IL 118496(January 22, 2016).
However, if the GAL puts into his or her report and plans to testify about what he or she learned from the counselor appointed pursuant to 5/607.6 that would be using those communications “in any manner in litigation”. Therefore, is the GAL precluded from mentioning in his or her report or testimony anything that he or she learned from the counselor?
Judge Salvi in a relocation case pending before him, granted a Motion in Limine to prohibit the GAL from testifying and struck her report which was based, in part, on information gleaned from conversations with court appointed counselors even though the parents, the parties, had consented to the GAL speaking and getting reports from the counselors.
The statute appears to preclude the GAL from having any communication with court appointed counselors under 5/607.6 because doing so may taint the recommendation and/or be included in the report which the statute prohibits.
The result is these two statutes set-up a conflictual situation between the duties of the GAL to investigate all of the facts and the sanctity and confidentiality of the court appointed therapy relationship.
Of interesting note, if the therapist or counselors were not appointed by the Court, does this statute apply to them also? Note that the first sentence in sub-paragraph (d) is “all counseling sessions shall be confidential.” However, does all mean all or does all mean only all appointed under 607.6?
Source: Published April 2018, Lake County Bar Association, The Docket
