Separation and divorce are difficult in the best of situations. Unresolved issues, whether legal or emotional, can place a great deal of stress on both spouses and often lead to contentiousness and hostility. For a couple with children, these feelings can, unfortunately, spill over into proceedings related to the children’s welfare such as child custody or child support hearings.
Too often, parents are tempted to use children as leverage in an effort to benefit from the proceedings. In such cases, the well-being of the children can seem to be ignored by either parent determined not to let the other side ‘win. To prevent the children from becoming a secondary concern, Illinois law permits the presiding judge in any child-related proceeding to appoint an attorney to look after the best interests of the child.
The law technically identifies three different roles to which an attorney may be appointed, although, two are far more common than the third. Depending on the needs of the case, a judge may determine that the selected lawyer should act as either the Attorney for the Child, Guardian ad Litem, or Child Representative.
Attorney for the Child
Courts seldom appoint an Attorney for the Child, as most children involved in support, custody, or visitation cases are not capable of providing appropriate direction to counsel of their own. For this role, the law does not really grant any discretion for the attorney to make decisions or establish positions of his or her own accord, therefore, limiting this option’s effectiveness.
Guardian ad Litem
The role of Guardian ad Litem (GAL) is more clearly defined in Illinois statute. Acting essentially as an extension of the court, an attorney appointed as GAL is granted investigational authority and expert witness status throughout the proceeding. Rather than acting on direction from the child, the GAL is expected to gather information about the case, including financial, educational, and lifestyle data on all involved parties, observe the family’s situation and prepare a recommendation as to what he or she believes to be in the child’s best interest. The recommendation of a GAL is entered as expert testimony into the case and permitted to be cross-examined.
An attorney selected as a Child Representative is able to combine aspects of the Attorney for the Child and the Guardian ad Litem in order to best represent the child’s interests. The CR is permitted the same investigative power as the GAL but not as a representative of the court. Instead, the CR may interview all parties, gather information, and establish a position of best interest for the child. In doing so, the CR may consider the wishes of the child, but is not obligated to advocate them or include them in his or her argument. The Child Representative may present the child’s best interest position in pre-trial hearings, but once a courtroom trial begins, the CR must introduce and argue the position based on evidence as any other attorney would.
Whenever the court decides to appoint an attorney to represent a child’s interest, the law expects the effort will not be wasted. Recommendations made by a Guardian ad Litem and, to a lesser extent, a Chile Representative, carry significant weight in the ultimate decision of the case, since the attorneys selected for such roles are well-screened and trusted by the court.
If you are involved in child support, custody, and/or visitation proceedings and you would like the court to considering appointing a Guardian ad Litem or Child Representative for your children, we can help. Contact an experienced Kane County family law attorney for a consultation today.