A divorce case is not the legal resolution of a moment in time like an accident tort or an instance of criminal activities. A divorce case unwinds the matters of two people who were together for years. When those two people have children, a divorce judge must also determine the best interests of those children based on the past actions of the parents, the children and everyone in the family’s circle. This is a lot of work!
An Illinois divorce judge can see upwards of 100 couples a day in a typical day on the bench. An Illinois divorce judge is not going to, personally, unpack the details of each couple’s relationship. A divorce judge is going to lean on the representations and summations of the parties’ lawyers. A good lawyer, however, is never going to say, “You know what? After looking into it, my client is the not the greatest mother in the world.” Issues involving children are simply too sensitive to expect candor from a zealous advocate.
So, Illinois courts will appoint a third attorney to determine exactly what is going on in the family and what the children’s best interest are.
Appointing An Attorney For The Child In An Illinois Divorce Case
“[T]here is no express statutory requirement that a trial court appoint a GAL or child representative in every parentage proceeding.” In re Marriage of Nienhouse, 821 NE 2d 1228 – Ill: Appellate Court, 1st Dist., 4th Div. 2004
But, when there is any ongoing custody dispute…an attorney for the child will eventually be appointed.
“[I]n those cases involving contested disputes, where there is an indication of a potential conflict between the child’s interests and a parent’s interests, a court has an obligation to appoint a GAL or child representative.” Macknin v. Macknin, 937 NE 2d 270 – Ill: Appellate Court, 2nd Dist. 2010
“If any party is a minor, he or she may be represented by his or her general guardian or a guardian ad litem appointed by the court.” 750 ILCS 45/7
“In any proceedings involving the support, custody, visitation, allocation of parental responsibilities, 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 in one of the following capacities to address the issues the court delineates” 750 ILCS 5/506.
Once an Illinois divorce court determines that a child needs representation, “the Illinois Marriage and Dissolution of Marriage Act (the Act), provides for three types of attorney appointments during proceedings involving the general welfare of a minor child, including visitation: (1) an attorney to represent the child; (2) a guardian ad litem; and (3) a child representative.” Vlastelica v. Brend, 2011 IL App (1st) 102587 – Ill: Appellate Court, 1st Dist., 1st Div. 2011
“In deciding whether to make an appointment of an attorney for the minor child, a guardian ad litem, or a child representative, the court shall consider the nature and adequacy of the evidence to be presented by the parties and the availability of other methods of obtaining information, including social service organizations and evaluations by mental health professions, as well as resources for payment.” 750 ILCS 5/506(a-5)
The first type of appointment, simply “attorney” is so rare that I have never seen someone appointed as, merely, an “attorney” for the child.
“The attorney shall provide independent legal counsel for the child and shall owe the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client.” 750 ILCS 5/506(a)(1)
The statute’s outlining of this mysterious, never used “attorney” for the child is important because it distinguishes that while an attorney represents a client, the other two categories represent “the child’s best interests.”
The more commonly appointed attorneys for children are either labelled “Guardian Ad Litems” or “Child Representatives.”
“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 guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)
Guardian Ad Litems are common in Illinois divorce cases. I will discuss Guardian Ad Litems in another article in great depth. The focus of this article is the child representative’s role in the Illinois divorce process (but I do discuss the distinction later in the article).
The focus of this article is the role of a child’s representative in an Illinois divorce.
750 ILCS 5/506 “draws a clear distinction between guardians ad litem and children’s attorneys, with child representatives occupying a middle ground.” Nichols v. Fahrenkamp, 160 NE 3d 17 – Ill: Supreme Court 2019
Child’s Representatives In An Illinois Divorce
“Of [the] three options [described in the statute], a child’s attorney is least associated with the judicial process. The child’s attorney is “independent” and owes the child client “undivided loyalty.” Next is the child representative, who acts as an “advocate” for the child’s best interests. Like the child’s attorney, the child’s representative “shall have the same authority and obligation to participate in the litigation as does an attorney for a party.” Also like a traditional attorney, the child representative “shall not render an opinion, recommendation, or report to the court and shall not be called as a witness, but shall offer evidence-based legal arguments.” However, the child representative “shall possess all the powers of investigation as does a guardian ad litem” and is not bound by the child’s expressed wishes when determining the child’s best interests.” Nichols v. Fahrenkamp, 160 NE 3d 17 – Ill: Supreme Court 2019
The court, the parties and the child representative must be reminded constantly that the child representative does not represent the child but, rather, the child’s best interests.
“[A] child representative [is] a “hybrid” of a child’s attorney and a child’s guardian ad litem who acts as an arm of the court in assisting in a neutral determination of the child’s best interests.”Vlastelica v. Brend, 2011 IL App (1st) 102587 – Ill: Appellate Court, 1st Dist., 1st Div. 2011
“The child representative shall advocate what the child representative finds to be in the best interests of the child after reviewing the facts and circumstances of the case.” 750 ILCS 5/506(a)(3)
“The [child] representative aids the court in determining the child’s best interests.” Nichols v. Fahrenkamp, 160 NE 3d 17 – Ill: Supreme Court 2019
In order to advocate for a child’s best interests, a child representative must perform a sufficient investigation.
“The child representative appointed by the court assists in this determination [of the child’s best interests] by meeting with the child and the parties, investigating the facts of the case, and advocating for the child’s best interests after reviewing the facts and circumstances of the case.” Vlastelica v. Brend, 2011 IL App (1st) 102587 – Ill: Appellate Court, 1st Dist., 1st Div. 2011
“The child representative, attorney for the child or 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.” Ill. Sup. Ct. R. 907(c)
“The child’s representative shall have the same power and authority to take part in the conduct of the litigation as does an attorney for a party and shall possess all the powers of investigation and recommendation as does a guardian ad litem.” 750 ILCS 5/506(a)(3)
The omission of granting this power to the guardian ad litem may mean that the guardian ad litem cannot file motions on their client’s behalf.
What a child representative CANNOT do is offer the court a personal opinion as to the child’s best interests.
“The child representative shall not render an opinion, recommendation, or report to the court and shall not be called as a witness, but shall offer evidence-based legal arguments.” 750 ILCS 5/506(a)(3)
While the statute bars a child representative from disclosing an opinion or even a recommendation, Illinois case law seems to allow a child’s representative to weigh in on the final custody conclusions.
“A child’s representative is empowered by section 506(a)(3) to make a recommendation after reviewing the facts and circumstances of the case and to conduct his own investigation. The representative, like any other witness, is not immune from error in observation and from inadvertent bias. The proper weight to be given the report of a child’s representative may be influenced by many factors, including his training and experience, the contacts between the representative, the parties, and the child, and the existence of any bias or tendency to favor one gender of parent over the other.” In re Marriage of Bates, 819 NE 2d 714 – Ill: Supreme Court 2004
“Although a child representative is not intended to abrogate the decision making power of the trier of fact or act in the role of a surrogate judge (750 ILCS 5/506(a-5) (West 2010)), his investigative and advocacy roles aid the court making a neutral determination of the child’s best interests. In so aiding the court in making a neutral determination of the child’s best interests, the child representative is acting as an arm of the court even while performing his role as an advocate.” Vlastelica v. Brend, 2011 IL App (1st) 102587 – Ill: Appellate Court, 1st Dist., 1st Div. 2011
Perhaps the distinction is that a child representative CANNOT make any kind of opinion except at a hearing or trial.
“The court and the parties may consider the position of the child representative for purposes of a settlement conference.” 750 ILCS 5/506(a)(3)
“A custodial parent challenging an adverse recommendation [of a child representative] is deprived of perhaps the most effective means of doing so because the statute expressly prohibits the right to cross-examine the child representative.” In re Marriage of Bates, 819 NE 2d 714 – Ill: Supreme Court 2004
A child representative cannot just say things, they have to present evidence like any other lawyer. That evidence may be objected to, challenged or rebutted.
“[T]he court is not required to implement the personal opinion of a child representative as the statute makes it clear that the role of a child representative is to provide the court with “evidence-based arguments,” not personal opinions.” In re Marriage of Debra N. and Michael S., 4 NE 3d 78 – Ill: Appellate Court, 1st Dist., 4th Div. 2013
The court will weigh the evidence that is presented and arguments as to that evidence. The court will not accept opinions from a child representative as a legal conclusion.
“In no event is this Section intended to or designed to abrogate the decision making power of the trier of fact. Any appointment made under this Section is not intended to nor should it serve to place any appointed individual in the role of a surrogate judge.” 750 ILCS 5/506(a)
The child representative will certainly have opinions and those opinions may be introduced under the color of argument based on evidence. In the end, it is the judge that must make the decisions. The judge “is the ultimate fact finder in a child custody case, not the expert witness.” In re Marriage of Saheb & Khazal, 377 Ill. App. 3d 615, 628 (2007).
Child Representatives Vs. Guardian Ad Litems In An Illinois Divorce
“The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem’s report or recommendations.” 750 ILCS 5/506(a)(2)
As you have already read, the child’s representative has to dance around their own personal opinions and present arguments based on evidence. Does that often look like an opinion? Yes.
Child representatives do not have to prepare a formal written report which will be scrutinized by the court and cross examined by the opposing party. So, if subtlety is your preference, a child representative will be preferable.
If however, you want to see your issues the other parent’s failings in black and white and allow cross examination of the author of that report, then a Guardian Ad Litem will be preferable.
A skilled family law attorney will know which type of attorney for the child best benefits your case…and can even make a motion to convert a Guardian Ad Litem into a Child Representative and vice versa.
The key strategic distinction is whether you believe you will want to keep the child’s attorney’s evidence in or out of the court room. A Guardian Ad Litem’s report and testimony is not limited by the rules of evidence.
“In discharging his or her duty, the GAL will review or consider all kinds of information regarding the child, both admissible and inadmissible at trial. Such information assists the GAL in determining the existence of problems that might cause the child psychological or physical harm. We fail to see any prejudice where the GAL listens to information that may be inadmissible at trial.” In re Marriage of Karonis, 296 Ill. App. 3d 86, 91 (Ill. App. Ct. 1998)
Whereas, “[t]he child representative shall have the same authority and obligation to participate in the litigation as does an attorney for a party” 750 ILCS 5/506(a)(3)
One of those “obligations” in “litigation” is to be constrained by the Rules Of Evidence.
“[B]y order of the Illinois Supreme Court, the Illinois Rules of Evidence will govern proceedings in the courts of Illinois” Ill. R. Evid. Preamble
Specifically, child representatives CANNOT get testimony of a child into evidence unless it relates to abuse.
A child’s statement told to the court via a child representative is hearsay. “”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801
“Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Supreme Court, or by statute as provided in Rule 101.” Ill. R. Evid. 802
One of the only exceptions to the bar against hearsay is if the child is describing abuse. But, even then, the alleged abuse must be corroborated by some additional evidence beyond the child’s allegation.
“Previous statements made by the child relating to any allegations that the child is an abused or neglected child within the meaning of the Abused and Neglected Child Reporting Act, or an abused or neglected minor within the meaning of the Juvenile Court Act of 1987, shall be admissible in evidence in a hearing concerning allocation of parental responsibilities in accordance with Section 11.1 of the Abused and Neglected Child Reporting Act. No such statement, however, if uncorroborated and not subject to cross-examination, shall be sufficient in itself to support a finding of abuse or neglect.” 750 ILCS 606.5(c)
So, if you want to completely deny your child a voice in a custody matter, you must appoint a child representative in lieu of a Guardian Ad Litem.
If you or your attorney are adept at using the Rules Of Evidence, hedge your bets when appointing an attorney for the child by demanding the a child representative NOT a Guardian Ad Litem (who can and will say any damned thing in open court).
In reality, you are not limited to choosing between a Guardian Ad Litem and a child representative. Both can be appointed, or multiple competing child representatives or Guardian Ad Litems can be appointed if an Illinois divorce judge deems is appropriate “for good cause shown”
“During the proceedings the court may appoint an additional attorney to serve in the capacity described in subdivision (a)(1) or an additional attorney to serve in another of the capacities described in subdivision (a)(2) or (a)(3) on the court’s own motion or that of a party only for good cause shown and when the reasons for the additional appointment are set forth in specific findings.” 750 ILCS 5/503(a-3)
Can You Sue A Child Representative In Illinois?
If the child representative is making arguments you disagree with you can object using the rules of evidence…but you can’t sue a child representative for anything they did while acting as the child’s representative.
“Guardians ad litem and court-appointed experts, including psychiatrists, are absolutely immune from liability for damages when they act at the court’s direction. [Citations.] They are arms of the court, much like special masters, and deserve protection from harassment by disappointed litigants, just as judges do. Experts asked by the court to advise on what disposition will serve the best interests of a child in a custody proceeding need absolute immunity in order to be able to fulfill their obligations `without the worry of intimidation and harassment from dissatisfied parents.’ [Citation.] This principle is applicable to a child’s representative, who although bound to consult the child is not bound by the child’s wishes but rather by the child’s best interests, and is thus a neutral, much like a court-appointed expert witness.” Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir. 2009).
If you really disagree with a child representative, you don’t want to sue them. You want to appoint an expert whose evidence will be deemed more authoritative than whatever evidence the child representative is presenting.
Who Pays For The Child’s Representative In An Illinois Divorce?
When the court initially appoints a child representative, the court will require the parties to pay the child representative’s retainer.
“The court shall enter an order as appropriate for costs, fees, and disbursements, including a retainer, when the attorney, guardian ad litem, or child’s representative is appointed.” 750 ILCS 5/506(b)
The child representative can then issue invoices every 90 days during the course of the litigation.
“Any person appointed under this Section shall file with the court within 90 days of his or her appointment, and every subsequent 90-day period thereafter during the course of his or her representation, a detailed invoice for services rendered with a copy being sent to each party. The court shall review the invoice submitted and approve the fees, if they are reasonable and necessary. Any order approving the fees shall require payment by either or both parents, by any other party or source, or from the marital estate or the child’s separate estate.” 750 ILCS 5/506(b)
A child representative’s invoices will be subject to review by the parties and the court before the invoices are ordered to be paid by one or both of the parties.
“The amount of attorney fees awarded should be only in such an amount as will compensate for services rendered, and those services must have been reasonably required and necessary to the case.” In re Marriage of Zannis, 449 NE 2d 892 – Ill: Appellate Court, 1st Dist. 1983
Unlike attorney’s fees, a child representative’s fees can be paid out of retirement funds or the sale of a marital home during the course of litigation.
“[T]he plain language of section 506(b), which governs child representatives specifically (750 ILCS 5/506(b) (West 2012)), provides that the court may order payment from “any other party or source,” including “the marital estate” or the child’s separate estate, to pay the fees and costs of a child representative.” Shen v. Shen, 35 NE 3d 1178 – Ill: Appellate Court, 1st Dist., 3rd Div. 2015
If you are in a custody dispute in Illinois, a complete stranger is going to investigate you, your ex and your children. That stranger will have an enormous impact in your present and future relationship with your children. Be sure that you exercise some level of control in your custody dispute, contact an experienced Chicago divorce attorney.