Quasi-judicial immunity

State’s high court rules GALs are immune from tort liability

All in the Family

Celia Gamrath

Celia Gamrath is a judge in the Cook County Circuit Court Chancery Division. She was assigned previously to the Domestic Relations Division and was a family law practitioner earlier.

November 2019

The Illinois Supreme Court held unanimously that guardian ad litems have quasi-judicial immunity from tort liability. The case is Nichols v. Fahrenkamp, 2019 IL 123990.

In Nichols, the plaintiff received $600,000 as part of a personal-injury settlement. Because she was a minor, the probate court appointed the child’s mother as her guardian to administer her estate and the eventual defendant David Fahrenkamp as guardian ad litem.

The plaintiff sued her mother claiming she used a portion of the settlement funds for her own benefit. Then, the plaintiff sued Fahrenkamp alleging legal malpractice for approving the mother’s expenditures.

Fahrenkamp contested the plaintiff’s factual claims and argued he was not liable for any negligence on the grounds of quasi-judicial immunity. The trial court agreed and held the guardian ad litem was immune from liability.

The 5th District Appellate Court reversed, holding that guardian ad litems have a duty to protect their wards’ assets and interests and that the defendant had a duty to act as an advocate on behalf of his minor ward.

Justice Richard P. Goldenhersh dissented. He opined that guardian ad litems serve as agents of the court, not as advocates for their wards, and as such, are entitled to quasi-judicial immunity. The Illinois Supreme Court agreed with the dissent, reversed the appellate court’s decision and affirmed the judgment of the trial court.

Although Nichols is a probate case, the holding has important implications in the dissolution of marriage context. Nichols also goes a step further by encouraging the Illinois legislature to revisit the use of the term “guardian ad litem” under the Probate Act and the Illinois Marriage and Dissolution of Marriage Act to ensure these acts use the term consistently to avoid confusion.

Looking at nationwide case law, statutory changes to Illinois law, and quoting Donald C. Schiller’s 1977 DePaul Law Review article, the Supreme Court in Nichols discussed the evolution of the role of a guardian ad litem over the past 40 years.

The early role of a guardian was to represent its ward and advocate much like a traditional attorney. However, this dual role sometimes posed a conflict of interest, prompting the legislature to act by amending Section 506 of the marriage act (750 ILCS 5/506).

The current version of Section 506 averts the conflict of interest by providing for three separate and distinct roles of a guardian, attorney for the minor child and child representative. Section 506 now “draws a clear distinction between guardians ad litem and children’s attorneys, with child representatives occupying a middle ground” and clarifies the role of the guardian ad litem to “testify or submit a written report.” Nichols, 2019 IL 123990, ¶29. In this capacity, where a guardian serves as a witness or reporter to the court (not as an advocate for the minor ward), Nichols holds the guardian is entitled to quasi-judicial immunity.

Nichols is consistent with several other states and federal appellate courts that have granted immunity. It also is congruent with Illinois Appellate Court decisions that have granted immunity to child representatives and Section 604(b) evaluators appointed by the court.

In Vlastelica v. Brend, 2011 IL App (1st) 102587, the court granted absolute immunity for a child representative appointed for the purpose of advocating for the best interests of the child in order to assist the trial court in making a neutral determination of the child’s best interests.

In Heisterkamp v. Pacheco, 2016 IL App (2d) 150229, the court granted absolute immunity to an evaluator appointed under Section 604(b) of the marriage act (now 750 ILCS 5/604.10(b)) to advise on a custody disposition that would serve the child’s best interests.

Both decisions recognize the need for judicial immunity to protect court-appointed evaluators and child representatives from harassment and intimidation so as to allow them to provide fair and independent recommendations to the court. This threat of reprisal also extends to guardian ad litems, as Nichols acknowledges.

Nichols concludes with sage advice and guidance to trial courts in designating court-appointed officials, whether it be a guardian ad litem, child representative, attorney for the minor child or some type of expert.

Nichols encourages trial courts “to make abundantly clear what each person’s role is. Courts, attorneys and other professionals should strive to avert misunderstandings before any issues develop.

When a circuit court appoints someone to a position like guardian ad litem, it should specify that appointee’s role in the order of appointment.” Nichols, 2019 IL 123990, ¶49. In turn, guardian ad litems and child representatives must adhere to that role and follow the applicable guidelines of Section 506 to best shield themselves from suit by dissatisfied parents.