When it comes to legal proceedings involving children – specifically dissolution (divorce) and parentage cases – the state of Illinois has a clear mandate. As per Section 506 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/506), the court may appoint an attorney to represent the child’s interests in disputes related to parenting time, allocation of parental responsibilities, education, and other relevant issues. This is termed the ‘Representation of Children‘.
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Legal Framework and Types of Child Representation
In certain situations, a party involved in the proceedings may request the appointment of an attorney for the child. However, the court also reserves the right to appoint such representation on its own accord, ensuring the child’s interests remain at the forefront of any decisions.
The appointed attorney could fulfill one of three roles: Child’s Attorney, Child Representative, or Guardian ad Litem. Each of these roles, while centered on the Representation of Children, comes with distinct duties and responsibilities.
- Child’s Attorney: When the court designates an attorney in this role, the child receives independent legal counsel. The attorney bears the responsibility of providing undivided loyalty, confidentiality, and competent representation to the child.
- Guardian ad litem (GAL): When an attorney is appointed as Guardian ad litem, often referred to as the “GAL,” this attorney is tasked with an in-depth investigation into the facts of the case. This process includes the attorney interviewing the child and other parties involved, following which the GAL submits a detailed report to the court. This report outlines their recommendations on what would be in the child’s best interests. All parties have access to this report, and the GAL may be called as a witness for cross-examination about their report and recommendations at trial.
- Child Representative: In this capacity as a “Child Representative,” the attorney combines the investigative powers of a GAL with the litigative authority of a traditional attorney. Their ultimate goal is to advocate for the child’s best interests, which might not always align with the child’s expressed wishes. This complex role involves case review, interviews, and participation in litigation, and encourages settlement. Unlike a GAL, a child representative does not submit a report to the court but discloses their stance through a pre-trial memorandum, which serves as the basis for settlement discussions.The attorney as a child representative focused on the best interests of the child must first 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. 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.
Factors in Appointing Representation
When deciding whether or not to appoint an attorney for a child, the court considers the nature and adequacy of the evidence presented by the parties, the availability of other methods of obtaining information (like social service organizations and mental health evaluations), and resources available for payment.
Impact of Representation on Legal Proceedings
Although an attorney plays a critical role in representing the child’s interests, the final decision rests with the judge. This underlines the importance of having a robust representation system in place to ensure that the child’s interests are adequately advocated for in the courtroom.
Costs Involved in Representation
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.
For a comprehensive understanding of guardianship, we recommend watching this video blog by our attorney, Jessica Sindel, a specialist in child guardianship.
Importance of Experienced Legal Advice
Navigating the intricacies of child representation in legal proceedings requires experienced legal guidance. A family law attorney can be invaluable in such scenarios. Here’s how:
- Understanding the Legal Process: They can demystify the court proceedings, preparing you for each stage and potential outcomes.
- Evaluating the Case: With their experience, they can assess your case from a legal perspective, advising on the best strategies to adopt.
- Representation in Court: If the need arises, they can provide representation during court hearings, arguing effectively on your behalf.
- Negotiation and Mediation: An attorney can also mediate between parties or negotiate with the opposing counsel to resolve issues amicably.
- Advice on Legal Rights and Obligations: Experienced attorneys can inform you about the legal rights and obligations of all parties involved, ensuring the child’s best interests remain the priority.
- Navigating Complexities: Family law in Illinois involves intricate regulations and statutes. An experienced attorney can help navigate these complexities to ensure compliance and safeguard your interests.
Given the complexities of child representation, it’s essential to seek advice from an attorney experienced in child guardianship law, ensuring you receive accurate, relevant, and effective counsel. if or someone in your family needs help to navigate a child representation matter, please get in touch with one of our experienced family law or child custody attorneys.