In Illinois child custody cases, under state law, a judge has the option to appoint a guardian ad litem, an attorney for the child or a child representative. It is important to understand the differences between these three positions and what each can report to the judge.
Guardian Ad Litem
A guardian ad litem (GAL) is an attorney appointed by the court to find the best interest of the child. The GAL is akin to the eyes and ears of the court in the custody case. The GAL is tasked to interview all parties involved in the case and all other information sources, including teachers, doctors, siblings, etc. Most importantly, the GAL is tasked with speaking with the child. The GAL will take all the information and submit a report to the court stating what the GAL believes is the best for the child.
At the custody hearing, the GAL can question witnesses, call witnesses of his/her own, and be asked to testify. The information supplied to the GAL is not privileged and can be repeated in either the report or testified to in court.
The court is not under obligation to follow the GAL's recommendation. However, the GAL's opinion is weighted heavily by the court as an unbiased source.
Attorney for the Child
An attorney for the child is appointed by the court to represent the child in a custody case. This person is literally the child's attorney. The attorney has the duty to fully and passionately represent their client, whether or not the attorney feels the child's choice is in the child's best interest.
Your child will have attorney/client privilege with this attorney. Therefore, anything your child states to the attorney cannot be repeated to you or your spouse. Likewise, at a hearing, the attorney cannot be called to testify. This attorney will not submit a report to the court, but can call witnesses to put on a case for the child.
In order for this relationship to work, the child must be old enough to effectively communicate with the attorney.
The child representative is a combination of a GAL and an attorney for the child. The child representative holds attorney/client privilege with your child, but is seen by the court as an unbiased source. The child representative submits a report to the court as to their recommendation, however he/she is not obligated to follow the best interests of the child rules.
The downside to a child representative is that he/she is seen as an unbiased source by the court, however, due to the attorney/client privilege, the child representative does not have to justify their opinion. For example, if you disagree with the child representative's opinion, you have no way to question his/her opinion as the child representative cannot testify in court. Conversely, if you disagree with the GAL's opinion, you can question the GAL in open court to ascertain how the GAL came to that opinion, and then call your own witnesses to attempt to contradict the GAL.
The experienced Naperville family law attorneys at our offices can answer any questions you may have regarding guardian ad litems, attorneys for the child, or child representatives. Please contact us for a consultation.