Children’s Attorneys in Contested Custody Cases

When the parents disagree about child custody, Illinois judges are tasked with the deciding who should have custody of a child.  In Illinois, the legal term of “child custody” is now referred to in the statute as the allocation of parental responsibilities.  Illinois courts use a “best interests of the child” standard when deciding how to allocate parental responsibilities (“child custody”).  “The court shall allocate decision-making responsibilities according to the child’s best interests.”  750 ILCS 5/602.5

Courts may need assistance in determining the allocation of parental responsibilities that is in the child’s best interests. The court may appoint an attorney to assist the court in deciding.  When the court appoints an attorney to assist in deciding child custody, there are three possible roles.  The three roles in which an attorney can assist the court in child custody matters are:  Attorney for the child, guardian ad litem, or child representative.

The first role is when the court appoints an attorney to be the child’s attorney. The attorney will owe the child the same duties of undivided loyalty, confidentiality, and competent representation that are due to an adult client.

The second role is when the court appoints an attorney to be a guardian ad litem. The guardian ad litem investigates facts and interviews the child and the parties. After the guardian ad litem concludes his or her investigation, he or shall will testify before the court or submit a written report in which he or she outlines recommendations that are in the best interests of the child. Any written reports are made available to the parties. The guardian ad litem may be cross-examined.

The third role is when the court appoints an attorney to be a child representative. The child representative has the investigative powers of the guardian ad litem and also has the same authority and obligation to participate in the litigation as an attorney for a party. The child representative advocates what he or she finds to be in the best interests of the child after reviewing the case’s facts and circumstances. The child representative is not bound by the child’s wishes. They cannot reveal confidential communications from the child. The child representative is not called as a witness and does not issue a report. Rather, the child representative offers evidence-based legal arguments in support of his or her position regarding the child’s best interests. The parties and/or their attorneys are notified of the child representative’s position ahead of time through a pre-trial memorandum that details the child’s representative’s arguments.

The court is not forced to accept the recommendations of a guardian ad litem or child representative. However, from a practical standpoint, courts often listen to the specially-appointed attorney because he or she is involved in the case as an objective third party and had an opportunity to interview and investigate the child’s circumstances.

When a Judge decides to appoint a child’s attorney, guardian ad litem, or child representative, the court may order the parties to pay a retainer and other fees for that attorney’s services. If an attorney is appointed to any of the above roles, he or she must tender an invoice every ninety days to the court and the parties. The court may then order the parties to pay the fees. If the child has his or her own separate estate, the court may order the attorney’s fees to be paid from the child’s account. The assistance offered by a child’s attorney, guardian ad litem, or child representative can be helpful to both the parties and the court.

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If you are looking for legal advice and representation with an Illinois divorce, schedule a consultation with experienced Chicago divorce attorney, Tanya Witt, at (312) 500-5400 or info@thewittlawfirm.com.

Representing men and women in Chicago divorce and child custody cases.

This blog does not constitute legal advice. Please consult with an attorney regarding your specific case.