Illinois divorce lawyers often speak in code. No code carries more weight than the phrase “604.10 Evaluators” which describe court-appointed experts who provide professional opinions as to the custody of children in divorce litigation.
Illinois divorce judges can have thousands of cases on their docket. Illinois divorce judges see dozens of cases each day. Illinois divorce judges cannot understand the years of family dynamics that have led up to the point where two people untangle their lives and divide their most precious asset: time with their children. Yet, Illinois divorce judges are charged with doing exactly that.
“Once the issue of custody was placed before the court, the court possessed broad discretion to alter custody or visitation rights to the extent required by the child’s best interests.” In re Marriage of Oros, 256 Ill. App.3d 167, 170, 194 Ill.Dec. 604, 627 N.E.2d 1246 (1994)
To facilitate the investigation into a family’s dynamic and come to conclusions about the appropriate division of parenting time and parental responsibilities, Illinois divorce judges often appoint or allow testimony from experts.
Before those experts are appointed, an Illinois divorce court appoints a Guardian Ad Litem or Child Representative to do a preliminary investigation.
Guardian Ad Litems and Child Representatives always come before 604.10 experts.
Judges are lawyers. Judges like lawyers. Judges and lawyers speak the same language. It’s no wonder judges prefer to have other lawyers investigate and report on a divorcing family’s dynamic.
“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(a)(emphasis mine).
A Guardian Ad Litem or a Child’s Representative is an attorney. Their opinion about a family’s dynamic is not based on a formal education in psychology, social work and/or psychiatry.
In fact, a child representative cannot give an opinion at all. “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)
Guardian Ad Litems, however, can give recommendations as to parenting time and parenting responsibilities. “Unless the court directs otherwise, the guardian ad litem shall submit to the court and the parties a written report, written recommendations, or a proposed parenting plan, in accordance with the child’s best interests, not less than 30 days before a final hearing or trial.” 750 ILCS 5/602(a)(2)
If the Guardian Ad Litem’s recommendation or the Child Representative’s evidence is in your favor, bravo! Don’t do anything. Politely say you agree with the recommendations and the court should adopt those recommendations as its order.
If you do not agree with the Guardian Ad Litem’s report or the conclusions that are evident from Child Representative’s evidence, you have a problem.
Not to worry, in court you can always appeal to a higher power. As for opinions about custody, that higher power is a 604.10 expert.
604.10(b) Experts In An Illinois Divorce
After receipt of a bad Guardian Ad Litem report, you can request another report from someone whose degree is in psychology, social work and/or medicine NOT law.
“Court’s professional. The court may seek the advice of any professional, whether or not regularly employed by the court, to assist the court in determining the child’s best interests. The advice to the court shall be in writing and sent by the professional to counsel for the parties and to the court not later than 60 days before the date on which the trial court reasonably anticipates the hearing on the allocation of parental responsibilities will commence.” 750 ILCS 5/604.10(b)
You’ll notice that this statute is labelled “Court’s Professional”. In furtherance of the court adopting this new and, hopefully, better opinion you should encourage the court to appoint that expert as “the court’s expert.” Court’s expert allegedly owe no fealty to anyone but the judge. This is also commonly known as an independent expert.
“Independent Expert Witnesses. An “independent expert witness” is a person giving expert testimony who is not the party, the party’s current employee, or the party’s retained expert. For each independent expert witness, the party must identify the subjects on which the witness will testify and the opinions the party expects to elicit. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party’s knowledge of the facts known by and opinions held by the witness.” Ill. S. Ct. R. 213(f)
Illinois divorce courts are very much inclined to appoint 604.10(b) experts because the general rule is that “more information is better”Section 604(b) of the Act “provides a mechanism for court appointment of an independent evaluator on custody and visitation issues. The purpose of the statute is to make the information available to assist the circuit court, and the expert witness is appointed to protect the interests of minor children regarding issues of custody and visitation.” Johnston v. Weil, 396 Ill.App.3d 781, 786, 336 Ill.Dec. 285, 920 N.E.2d 494 (2009)
“The purpose of the statute [750 ILCS 5/604.10] is to make the information available to assist the court and protect the interests of minor children regarding issues of custody and visitation.” IN RE MARRIAGE OF VERMAATEN v. VERMAATEN, 2024 IL App (2d) 220351 – Ill: Appellate Court, 2nd Dist. 2024
Typically, the only thing that prevents a 604.10(b) expert from being appointed is the cost which can easily be tens of thousands of dollars.
“The court shall order all costs and fees of the professional to be paid by one or more of the parties, subject to reallocation in accordance with subsection (a) of Section 508.” 750 ILCS 5/604.10(b)
Payment of the 604.10 is based on the financial resources of both parties.
“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party’s costs and attorney’s fees.” 750 ILCS 5/508(a)
The 604.10 expert’s “report must, at a minimum, set forth the following:
(1) a description of the procedures employed during the evaluation;
(2) a report of the data collected;
(3) all test results;
(4) any conclusions of the professional relating to the allocation of parental responsibilities under Sections 602.5 and 602.7;
(5) any recommendations of the professional concerning the allocation of parental responsibilities or the child’s relocation; and
(6) an explanation of any limitations in the evaluation or any reservations of the professional regarding the resulting recommendations.” 750 ILCS 5/604.10(b)
The 604.10(b) report automatically is entered into evidence.
“The court may review the writing upon receipt. The writing may be admitted into evidence without testimony from its author, unless a party objects.” 750 ILCS 5/604.10(b)
If the 604.10(b)’s report favors you, again, thank the expert politely. The court will likely adopt the expert’s report even over the Guardian Ad Litem’s recommendation. After all, the expert is more qualified and the expert’s report includes data, test results and a full explanation.
If the 604.10(b) report does not favor you, all is not lost…but you are definitely swimming uphill from here on out.
You can ask the court for a second expert to review the family dynamic.
604.10(c) Evaluators As A Rebuttal To a 604.10(b) Evaluator
“Evaluation by a party’s retained professional. In a proceeding to allocate parental responsibilities or to relocate a child, upon notice and motion made by a parent or any party to the litigation within a reasonable time before trial, the court shall order an evaluation to assist the court in determining the child’s best interests… The evaluation may be in place of or in addition to any advice given to the court by a professional under subsection (b).” 750 ILCS 5/604.10(c)
Courts are far less likely to approve a 604.10(c) evaluator as courts are allowed to deny such a request if “the court finds that an evaluation under this Section is untimely or not in the best interests of the child.” 750 ILCS 5/604.10(c)
Furthermore, the party requesting this third bite at the apple must pay for the 604.10(c) evaluator. “The party requesting the evaluation shall pay the evaluator’s fees and costs unless otherwise ordered by the court.” 750 ILCS 5/604.10(c)
And if you hire someone from out-of-state, don’t expect your spouse to have to travel to visit the 604.10(c) evaluator. “No person shall be required to travel an unreasonable distance for the evaluation.” 750 ILCS 5/604.10(c)
A 604.10(c) report must similarly be as detailed as a 604.10(b) report.
“A motion for an evaluation under this subsection must, at a minimum, identify the proposed evaluator and the evaluator’s specialty or discipline. An order for an evaluation under this subsection must set forth the evaluator’s name, address, and telephone number and the time, place, conditions, and scope of the evaluation… The evaluator’s report must, at a minimum, set forth the following:
(1) a description of the procedures employed during the evaluation;
(2) a report of the data collected;
(3) all test results;
(4) any conclusions of the evaluator relating to the allocation of parental responsibilities under Sections 602.5 and 602.7;
(5) any recommendations of the evaluator concerning the allocation of parental responsibilities or the child’s relocation; and
(6) an explanation of any limitations in the evaluation or any reservations of the evaluator regarding the resulting recommendations.” 750 ILCS 5/604.10(c)
Because the 604.10(c) report is prepared specifically on behalf of one party, it is likely to be replete with biases. 604.10(c) reports must be tendered to the other side 60 days in advance of trial so that there will be ample time for counter-investigation and deposition.
“A party who retains a professional to conduct an evaluation under this subsection shall cause the evaluator’s written report to be sent to the attorneys of record no less than 60 days before the hearing on the allocation of parental responsibilities, unless otherwise ordered by the court; if a party fails to comply with this provision, the court may not admit the evaluator’s report into evidence and may not allow the evaluator to testify.” 750 ILCS 604.10(c)
Do not forget to disclose your 604.10(c) evaluator for what they really are: a controlled expert witness.
“The party calling an evaluator to testify at trial shall disclose the evaluator as a controlled expert witness in accordance with the Supreme Court Rules.” 750 ILCS 5/604.10(c)
“Controlled Expert Witnesses. A “controlled expert witness” is a person giving expert testimony who is the party, the party’s current employee, or the party’s retained expert. For each controlled expert witness, the party must identify: (i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case.” Ill. S. Ct. R. 213(f)
Your opponent is likely to call your controlled expert witness/604.10(c) evaluator as a hostile/adverse witness. At least they can pay for the pleasure.
“Any party to the litigation may call the evaluator as a witness. That party shall pay the evaluator’s fees and costs for testifying, unless otherwise ordered by the court.” 750 ILCS 5/604.10(c)
Now you have two competing and conflicting 604.10 evaluator reports. You are definitely going to trial.
How To Win An Illinois Custody Trial When 604.10 Evaluators Have Been Appointed
All cases with rival 604.10 experts go to trial. Whoever’s expert is more credible will determine what parenting time and parental responsibilities will be allocated to which parent.
In child custody hearings, “each case stands on its own facts.” Breedlove v. Breedlove, 5 Ill. App. 3d 774, 776 (1972)
Even if there’s no 604.10(c) evaluator, a discredited 604.10(c) “court’s professional” evaluator is definitely possible.
“A professional consulted by the court shall testify as the court’s witness and be subject to cross-examination.” 750 ILCS 5/604.10(b)
There is plenty of authority that says the judge does not need to adopt the opinions of a 604.10 evaluator.
“Although it is within the court’s discretion to seek independent expert advice, it is well settled that a court is not bound to abide by the opinions or implement the recommendations of its court appointed expert.” In re Marriage of Debra N. and Michael S., 4 NE 3d 78 – Ill: Appellate Court, 1st Dist., 4th Div. 2013
“Nothing in section 604 requires the trial court to follow the advice of the 604(b) evaluator. Advice is simply that-advice. The trial court is the ultimate fact finder in a child custody case, not the expert witness.” In re Marriage of Saheb, 377 Ill.App.3d 615, 628, 316 Ill.Dec. 801, 880 N.E.2d 537 (2007)
“Although the testimony of psychologists and social workers are relevant to the determination of custody, their opinions are not binding on the court.” In re Marriage of Bailey, 130 Ill.App.3d 158, 160-61, 85 Ill.Dec. 666, 474 N.E.2d 394 (1985)
“The various experts and consultants are in reality advisors to the court. The court has discretion to accept or reject some or all of the advice within the parameters of what is reasonable under the facts of a particular case.” Marriage of Wendy LD v. GEORGE TD, 2017 IL APP (1st) 160098 – Ill: Appellate Court, 1st Dist., 6th Div. 2017
Convincing a judge to do so is all in the direct examination and cross-examination of the 604.10 evaluators. If you have read this far, I will elaborate no further and, instead, encourage you to buy the best book on this subject “How To Examine Mental Health Experts, 2nd Edition” by John A. Zervopolous, Ph.D., J.D.
If you are going into a custody battle and your lawyer doesn’t have Dr. Zervopoulos’s book…I hope they don’t charge very much.
If you would like to consult with an experienced Illinois family law attorney who owns the book, has read the book and has put its principles into action multiple times, contact my Chicago, Illinois divorce law firm to schedule a free consultation.
