In a Custody Proceeding, Who Represents my Children?

http://www.dreamstime.com/-image1599936If you are new to the world of domestic relations litigation and have minor children, this may be one of the most confusing aspects.  You probably keep hearing about child advocates, including attorneys for children, GALs, and child representatives.  The following explanations should help claify your understanding of this area of law.

First things first, does anyone have to represent your children? Generally speaking, no.  If you and your spouse/co-parent can come to a reasonable agreement on legal custody and visitation, you may not need any of the above, except for a visit to a mediator.  Many times, the counsel representing you and your spouse/co-parent can enter a custody judgment and parenting agreement without the further involvement of third parties.

However, in many instances, your attorney, your spouse/co-parent’s attorney, or the judge may recommended that an attorney for the children, GAL or child representative be appointment.  Let’s define these three categories of advocates for children:

-          Attorney for the children

  • The attorney will provide independent legal counsel for the children 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).

-          Guardian ad litem (aka GAL)

  • Pursuant to 750 ILCS 5/601(f), the court shall, at the court's discretion or upon the request of any party entitled to petition for custody of the child, appoint a guardian ad litem to represent the best interest of the child for the duration of the custody proceeding or for any modifications of custody orders entered.
  • 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).

-          Child Representative

  • The child representative advocates for what is in the best interests of the children after reviewing the facts and circumstances of the case. The child representative meets with the children and the parents (or other guardian), investigates the facts of the case, and encourages settlement, possibly through alternative dispute resolution.  The child representative shall have the same authority and obligation to participate in the litigation as does an attorney for a party and shall possess all the powers of investigation as does a guardian ad litem. The child representative shall consider, but not be bound by, the expressed wishes of the child. Unlike a GAL, a child representative does not render an opinion, recommendation, or report to the court and will not be called as a witness. However, the child representative does have the authority to cross-examine witnesses. 750 ILCS 5/506(a)(3).

If you are unable to resolve issues of custody or visitation with your spouse/co-parent after mediation, one of the above professionals may be the next step.  The two most used advocates are GALs and child representatives.  Consider all your options and the recommendation of your attorney before you choose.  The attorneys for children, GALs, and child representatives can add a great deal of cost to your litigation, but they may resolve the outstanding child-related issues in your case, relieving a great deal of stress.

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