Court Appointment of Guardian Ad Litem,

Child Representative and/or Attorney for the Child

 

When the court is asked to decide on a child custody matter, it has its choice of tools to assist it in its decision. All of which means, the court can appoint an attorney to represent the minor child (or children). Though the court will not automatically appoint an attorney for the children once a disagreement over custody has arisen, it will appoint one if the parents fail to reach an agreement. The appointed attorney will be assigned the role of either: Guardian Ad Litem (GAL), child representative, or attorney for the child. Almost every time, the court assigns only one of those roles.

The Illinois Supreme Court rules state that a licensed attorney must fulfill the above positions. The local courts set further education requirements for those positions. The education requirements usually consist of Continuing Legal Education (CLE) courses that are approved by the state bar association. These courses usually consist of education in child development, family dynamics, legal ethics in custody cases, substance abuse and other such subjects. These attorneys make themselves available to the court to be appointed by a judge, when the need arises.

So what’s the difference between these types of attorneys?

Guardian Ad Litem (GAL)

These different positions have set statutory roles, with the goal being that the court reaches a decision that is in the best interest of the child. The GAL’s job is to investigate the family situation by talking to all the relevant family members and submit a report to the court stating what he or she believes is in the best interest of the child. Typically, the report is in a form of a recommendation for a certain living situation. The GAL can be cross-examined by either parent, and the GAL does not have privileged communication with anyone he or she talks to. The statute makes no mention of whether GAL’s can file independent filings, but some judges will direct a GAL to file pleadings where the judge deems it appropriate or necessary.

Attorney for the child

The attorney for the child provides independent legal counsel for the child.  The statute emphasizes that all the same privileges and duties that exist with a typical client-attorney relationship exist between the child and the attorney. The attorney is also directed to file pleadings and perform other litigation duties. Questions still remain as to whether a minor can waive privileged communication between himself and the attorney. Typically, an attorney for the child is only appointed for older children who can understand the dynamics of what is going on and clearly communicate with his or her attorney and the court.

Child Representative

The child representative is a hybrid of both GAL and attorney for the child.  The representative has all the investigative powers of a GAL and can also file pleadings on behalf of the child. Child representatives cannot be cross-examined, and the lines between confidentiality and investigation are unclear. The main difference between the child representative and the attorney for the child is that the representative can form his or her own opinion in regards to what they believe is in the best interest of the child and advocate for that position, whereas an attorney for the child represents the child and their wishes and desires.  

What will the judge do in my case?

The decision of whom the judge will appoint is case-specific to either court district or individually for a judge. Additionally, one party can move the court to appoint one of those attorneys. Some court districts will appoint one type of attorney as a matter of course. In some districts, each judge will have their own preference, and some judges will make a case-by-case decision based on the specific facts.

Typically, courts prefer GAL’s where the child (or children) is very young, or there is suspected abuse, or suspected dishonesty by one or both of the parents. A GAL is useful in searching for the facts, because he or she can investigate all the parties freely and can be cross-examined by both parties. It is thought, therefore, that the GAL will be thorough and even-handed in its recommendation.

Some judges have opined that child representatives are the most useful because they are the most flexible in terms of investigating and moving the case along through his or her filing of pleadings. Some judges have also stated that they prefer a representative when he lacks confidence in the parents’ attorneys.  As stated above, an attorney for the child will be appointed if the child is old enough to understand what is going on and is able to communicate with his attorney and the court. Ultimately, the court will choose a representative that is sensitive to the situation at hand and is there to help find the best situation for the child.