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Legal Memorandum: When reviewing the award of attorneys’ fees and Guardian Ad Litem fees the court looks for an abuse of discretion

Issue: Under Illinois law, what is the standard of review applied to an award of attorneys’ and Guardian Ad Litem fees?

Area of Law: Litigation Practice & Procedure, Litigation Practice and Procedure
Keywords: ; Standard of Review; Attorney Fees; Guardian Ad Litem; Award; Marriage Act; Best Interest
Jurisdiction: Illinois
Cited Cases: None
Cited Statutes: None
Date: 03/01/2016

A court will review the trial court’s order awarding attorney fees for an abuse of discretion. Shen v. Shen, 2015 IL App. (1st) 130733, ¶ 96. An abuse of discretion occurs only when the trial court’s ruling is arbitrary, fanciful, or unreasonable. Id.

Allocation of fees may take into consideration the parties’ respective incomes; but income alone is not dispositive of the allocation of GAL fees. See McClelland v. McClelland, 231 Ill.App.3d 214, 228 (1992) (proper allocation of GAL fees should be based on the totality of the circumstances); see also Gibson v. Barton, 118 Ill.App.3d 576, 583 (1983) (stating that, income notwithstanding, "the party necessitating the guardian’s appointment should bear the greater part if not all of the expenses"); In re Marriage of Adams, 92 Ill.App.3d 797, 804 (1981) (finding that a 50-50 allocation of GAL fees, despite disparities between the parents’ incomes, was not an abuse of discretion).

While the Marriage Act and supreme court rules provide that an appointed GAL in a contested custody case must be an attorney ([statref]750 ILCS 5/506(a) (West 2012)[/statref]; [regref]Ill. S.Ct. R. 907 (eff July 1, 2006) (Committee Comments)[/regref]), it does not follow that those lawyers appointed as GALs should necessarily charge customary legal fees for what is not customarily legal work. A GAL should be the court’s "eyes and ears," and if necessary a legal advocate for the child’s best interest. In re Mark W., 228 Ill.2d 365, 374 (2008); In re Marriage of Wycoff, […]

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