Courts in divorce proceedings sometimes need the assistance of a third party to come in and help the court make a determination as to what is in the best interests of the children involved. One of the trickiest aspects in divorce proceedings is ensuring someone is there to represent the children’s interests as well. Both parents’ interests are being represented, so why shouldn’t the children’s interests also be represented? It makes sense for children to have a voice and be represented too, as the parties’ divorce affects them and their lives as much as it affects their parents. Under Section 506(a)(3) of the Illinois Marriage and Dissolution of Marriage Act, Illinois courts may appoint a Child Representative for the minor child in any case where the parties are disputing the custody, visitation, education, parentage, property interest, or general welfare of their child.
3 Categories of Child Representation
The appointment of a person to represent the child’s best interests can happen in one of two ways. The parties can either agree who that person will be, or the Court will appoint a person to represent the children. The three individuals who can be selected to represent the child(ren) are as follows: a Child’s Attorney, a Guardian ad Litem, or a Child’s Representative. Each of these three individuals plays a different role in their representation of the child, so it is important to understand their roles and develop a better understanding as to which one is best for the child in the situation at hand.
Attorney for the Child
The first individual that can be selected to represent the interests of the child is the Attorney for the Child. The judge may appoint a Child’s Attorney for an older child, since the child’s attorney has to act in the manner that the child wants, just like your attorney argues your position in court. The child’s attorney isn’t necessarily acting in the child’s best interest but, rather, presents the child’s arguments to the court. The attorney does so by representing the child in the way any attorney would represent you or me. They need to keep what is said between the child and them private and need to be loyal in their representation of the child.
The Guardian Ad Litem
The Guardian Ad Litem (GAL) represents the child’s best interests, and this may or may not be what the child wants. However, unlike the attorney for the child, the GAL is appointed to conduct investigations. If there is a dispute, for example, as to whether it is safe for the child to live with one of their parents, the court may ask the GAL to do one or multiple home visits and report back to the court as to what happened at those home visits. The GAL, in such a capacity, would go to the home of the parents, observe how the parent behaves with the child(ren), talk to the parents and children separately, and report to the Court, by either writing up a report or testifying in court as a witness.
The GAL may be required to investigate whether or not it would be in the best interests of the child or children to have supervised parenting time with dad or mom, for instance. Once the GAL is told what issues they are going to be reporting back to the Court on, they will need to go and observe the parties to advise the court appropriately. Part of the investigation may be to interact with the kids, talk to each individual parent and other parties, if applicable, and make a report on their findings. The court then may use that report to make particular findings on different issues, such as parenting time, for example. Because GALs report back to the Court, they can be put on the stand as a witness and be asked questions by both attorneys to see if what the GAL recommended should really be the course of action the court takes.
The Child Representative
The Child Representative is like the GAL in the fact that they have the same authority as the GAL in terms of investigatory power. However, they do not testify in court. Their job is to look at the facts that have been provided throughout the case so far and see if the facts have merit. They do this by speaking with both sides and the child or children involved. The Child Representative, like the GAL and the Attorney for the Child, will take the child’s preferences and opinions into account when making certain decisions and deciding certain issues. Special training and qualifications are usually needed in order to work as a Child Representative, and such will be considered by the judge when the appointment of a Child Representative becomes necessary.
What are the Differences Between a GAL and a Child Representative?
With that said, one of the main differences between a GAL and a Child Representative is how their recommendations are used in the case. As previously provided, when the GAL makes a recommendation, that recommendation may be provided in a report. The GAL can then be put on the stand by the parties and questioned. The Child Representative is different. The Child Representative cannot be called to the stand, but they can still give the court their opinion.
For example, if the Child Representative were asked to decide if it would be in the best interests of the child for the dad to be allowed to move to a state outside of Illinois, they may take the position that this would not be in the child’s best interests because then the child would have to travel alone to go see dad for dad’s parenting time, which would be dangerous for the child. It should be noted that although the Child Representative does not issue a formal report in the event the parties’ case goes to trial. Instead, the Child Representative will have to complete a pre-trial memo in which his or her position on a specific issue will be revealed. The parties can use that position when discussing settlement as well.
If you or your spouse contemplating divorce, or you need help with a child support or child custody issue in Illinois, please visit our Chicago Divorce Attorney services page to learn more how we can help you and your family more forward.
Important Facts to Understand About a Child Representative
It is important to understand that, the Child Representative is not your attorney and is not the opposing party’s attorney. The Child Representative is your child’s attorney. Therefore, anything that you or the opposing party says to the Child Representative is not protected by the attorney-client privilege. As a result, anything you say to the Child Representative can be used against you in your case. On the contrary, Section 506(a)(3) specifically states that, “[t]he child representative shall not disclose confidential communications made by the child, except as required by law or by the Rules of Professional Conduct.” This means that, because the Child Representative is your child’s attorney, anything your child discusses with the Child Representative in confidence is protected by the attorney-client privilege. As a result, the Child Representative cannot discuss what the child says with you or the opposing party.
This concept is often very frustrating for parents who are naturally concerned for their child during their proceeding. However, it is important to remember that the Court appointed the Child Representative in the hopes that he or she can help the parties resolve the custody, visitation, and other disputes between them, and also help shield your child from the harm that can result from these disputes. The Chicago child custody lawyers at Anderson & Boback have served as court-appointed child representatives for many years and understand the Child Representative’s role in your case. If you have any questions about the differences between a GAL, a Child’s Attorney, and a Child Representative, or for more information about a child custody matter, please feel free to contact our office for a consultation.