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REPRESENTATION OF CHILDREN IN DISSOLUTION AND PARENTAGE PROCEEDINGS

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Categorized as Divorce Litigation

Pursuant to Section 506 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/506) an attorney may be appointed on behalf of a child in any proceeding involving issues such as parenting time, allocation of parental responsibilities, education, etc. A party can file a motion asking for the court to appoint an attorney on behalf of a child. The court may also appoint an attorney on behalf of a child on its own motion, without a request from one of the parties.

The court may appoint an attorney on behalf of a child to serve in one of the following three (3) capacities: Attorney, Child Representative, or Guardian ad Litem.

If an attorney is appointed as the “Child’s Attorney,” the child will have independent legal counsel. The attorney owes the child the duties of undivided loyalty, confidentiality, and competent representation.

When an attorney is appointed as a “Guardian ad litem,” the attorney will investigate the facts of the case. The attorney will interview the child and the parties. The Guardian ad Litem is often referred to as the “GAL.” The GAL typically submits a written report to the court. In the report, the GAL gives their recommendations as to the best interests of the child. All parties are able to read the written report. The GAL can be called as a witness at trial, for purposes of cross-examination regarding their written report and their recommendations.

Lastly, an attorney can be appointed as a “Child Representative.” In this capacity, the attorney has investigation powers like a Guardian ad Litem and they have the authority and obligation to participate in the litigation, like an attorney. The attorney will advocate what they, the attorney, find to be in the best interests of the child. To do so, first the attorney will review the facts and circumstances of the pending case between the parties. Then the attorney will meet with the child and the parties. Settlement is encouraged by an attorney acting as a child’s representative. Although a child representative must consider the child’s expressed wishes, the attorney is not bound by the child’s wishes, as the child representative is concerned with the best interests of the child. A child representative cannot disclose confidential communications made by the child. A child representative does not give the Court an opinion, recommendation, or report. Since a child representative participates in litigation, they may not be called as a witness at trial. Their role is to offer evidence-based legal arguments to support the best interests of the child. Prior to trial, a child representative discloses the position they intend to advocate, by way of a pre-trial memorandum for purposes of a settlement conference. The child representative’s pre-trial position cannot be considered evidence at trial.

When deciding whether or not to appoint an attorney on behalf of a child, the court considers 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.

Although the role of an attorney appointed on behalf of a child is very important to the case, the Judge is still the final decision-maker.

It is common for both parties to be responsible for paying the attorney fees for their child’s attorney, including the initial retainer. However, that does not necessarily mean that they would be equally (50/50) responsible. If you are interested in your child having representation in a pending matter or if an attorney has already been appointed on behalf of your child, it is very important to speak to an experienced attorney, as soon as possible.

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