Protecting the Best Interests of Children, Part 2: Attorney for the Child and Child Representative
There are times when divorcing parents allow their own emotions to cloud their judgment related to what is best for their children. It is most often unintentional, but if not addressed, can have serious long-term consequences. Unfair or lopsided custody and visitation arrangements could result, for example, in one parent overwhelmed by responsibility while the other feels alienated. Possible negative effects are definitely not limited to the adults, and in fact, may be even more severe for the children.
Situations may arise in custody and support cases where the best interests of a child are not being addressed or seriously considered. To combat this, Illinois law allows the court to appoint an attorney to serve the child’s interests in one of three capacities: Guardian ad Litem, Attorney for the Child, or Child Representative.
Guardian ad Litem
A Guardian ad Litem works as an extension of the court to determine the child’s best interest and provides testimony as an expert witness. A more in-depth discussion of the rights and responsibilities of the Guardian ad Litem can be found in a previous post.
Attorney for the Child
Of the options available to the court, an Attorney for the Child is the most straightforward. In this position, the attorney becomes counsel for the child and an advocate for the child’s interest. The attorney’s standing in court is no different than that of any of the attorneys for the parents or other parties, while, of course, representing the wishes of the child. The law makes clear that the Attorney for the Child must represent the child just as the attorney would represent any adult client. The child, therefore, is able to establish any position he or she chooses, which the attorney must then defend.
For a more mature minor child, this may be suitable, but for younger children, the court is less likely to appoint an Attorney for the Child. Few children are able to recognize what is truly in their best interest as opposed to what they want right now. Additionally, the child may not be well-protected from the some of more unpleasant aspects of a contentious litigation. Courtroom details and the substance of motions filed by other parties may need to be relayed by the attorney to a child client who lacks the maturity to understand the process.
If the court elects to appoint a Child Representative, the expectation is that the child can benefit from aspects of both an Attorney for the Child and a Guardian ad Litem with a few differences. In all proceedings, the Child Representative acts as the child’s attorney, able to negotiate pre-trial, to call and cross-examine witnesses in court, and to present evidence. The biggest difference is that the Child Representative, unlike the Attorney for the Child, is able to independently establish and represent the child’s best interests. The child, of course, may provide input, but the Child Representative bases its position on what is best for the child, not necessarily what the child wants.
To aid in determining the best interests of the child, the law provides the Child Representative the same investigative authority as the Guardian ad Litem. Interviews, observations, and reviews of records help decide a position to advocate on the child’s behalf. The Child Representative, though, is not considered a witness to the case, nor an extension of the court like the Guardian ad Litem. Instead, the Child Representative is permitted to present recommendations before trial, but once court proceedings begin, the attorney must adhere to the same procedural requirements as any other attorney, basing arguments on evidence and not on his or her own opinion.
As with the Guardian ad Litem, both the Attorney for the Child and the Child Representative are appointed by the court from a list of attorney volunteers. The court places a high degree of trust in appointed attorneys, and only the best qualified remain on the list. This allows the court to know the children involved will be well-represented if an when it becomes necessary.
If you are involved in a custody dispute and are concerned that the best interests of your child are not being addressed, call us today. An experienced DuPage County family law attorney can review your case and help you decide the best course of action for your situation.