G.A.L.s, Attorneys for Children, and Child Reps
by Wes Cowell; updated 24 November 2018 suggest a correction
In cases where the allocation of parental responsibility is contested, the judge may appoint an experienced family law attorney to serve as an "Attorney for the Child," a "Guardian ad item," or a "Child Representative." Those appointments come with different responsibilities, powers, privileges, and abilities. Make sure the court makes the right appointment. Need advice? Call, leave your info, or schedule a consult.
When cases begin to look like they might present a contest, the court considers appointing an attorney to look out for the child's interests. It doesn't happen in every case. Judges avoid it when possible:
"In most cases the child's interests are adequately protected by one or the other parent, or by the court, and it is difficult to see how the presence of another lawyer could improve the process enough to be worth the cost. (2 H. Clark, The Law of Domestic Relations in the United States § 20.3, at 492-93 (2d ed. 1987))"
In re: Marriage of Wycoff, 266 Ill.App.3d 408, 639 N.E.2d 897, (4th Dist., 1994).
Still, in some cases the parties get caught up in a win-at-all-costs mentality and lose sight of their children's best interests . . . and the court must do something to look out for the kids.
When it comes to looking out for the kids, Illinois law (750 ILCS 5/506) allows for three options:
an "attorney for the child,"
a G.A.L., and
a "child's representative."
Either party may ask the court to appoint an attorney to serve in one of the three functions. The court may appoint an attorney on its own without either party asking or even over either party's objection. The moving party usually recommends an attorney. The parties may also agree to use a particular attorney in a particular capacity, but the court In re: Marriage of Doty, 629 N.E.2d 679, 255 Ill.App.3d 1087, 196 Ill. Dec. 134 (5th Dist., 1994).muststill approve and make the appointment. Of course, when it comes to the kids, the court may appoint any attorney serving in any of the three capacities. On the other hand, as long as the court considers the best interest of the children, the court may stand pat and not appoint any attorney at all.
What's the difference? In which capacity should an attorney serve your child? Here's what do they do and how do they do it:
Attorney for the Child (A.F.C.): 750 ILCS 5/506(a)(1) An Attorney for the Child is just that: an independent attorney who represents the child's interests just like the attorneys who represent each parent's interests. Like all attorneys, an Attorney for the Child is an advocate . . . for the child. Communications between the child and the attorney (if any) are confidential. The attorney may file pleadings and motions, conduct discovery, and call and cross-examine witnesses just like an attorney for either adult party.
Guardian ad Litem (G.A.L.): 750 ILCS 5/506(a)(2) A G.A.L is "the eyes and ears of the court." The G.A.L. conducts an investigation of the parties, their situations, the children, and anything else that is relevant. The G.A.L. prepares a report for the judge. The report includes a custody recommendation. The report is submitted to the judge and is shared with both parents. The G.A.L. testifies and is subject ot cross-examination. The judge is not bound by the G.A.L.'s recommendation.
G.A.L.s may file pleadings and motions seeking relief for the children. G.A.L.s may issue subpoenas as part of their investigation. G.A.L.s may even call and cross-examine witnesses at the trial and once the trial is over the G.A.L. may file post-trial motions to protect the children and enforce their rights.
The G.A.L. may be called as a witness to testify in court and may be cross-examined about the investigation, the report, and the custody recommendation in the report.
Child Representative: 750 ILCS 5/506(a)(3) The Child Representative is an advocate, but does not submit a custody recommendation nor a written report to the court (like a G.AL.), and may not be called as a witness. Instead of making a recommendation or submitting a report, the Child Rep is to "offer evidence-based legal arguments." In In re: Marriage of Bates, 212 Ill.2d 489, 289 Ill.Dec. 218, 819 N.E.2d 714 (Ill., 2004), the Child's Rep submitted a written report (like a G.A.L.) but the mother was prevented from cross-examining the Child's Rep. The Illinois Supreme Court held that allowing the report without cross-examination deprived the mother of due process. Because (the old) 750 ILCS 5/603 prohibited the cross-examination of the Child's Rep., the Supremes held that allowing the Child's Rep. to submit a report or make a recommendation was unconstitutional. The Illinois legislature responded in 2006 by amending 750 ILCS 5/506(a)(3) to say "[t]he child representative shall not render an opinion, recommendation, or report to the court and shall not be called as a witness, but shall offer evidence-based legal arguments."
A Child Representative may file motions to affect the course of the case, including motions to establish or modify temporary parental responsibilities, decision-making, and a temporary parenting schedule. 750 ILCS 5/506(a)(3). The Child Representative makes a recommendation about the allocation of parental responsibilities, decision-making, the parenting schedule, and other elements of the Parenting Plan in a pre-trial memorandum submitted ot the judge and shared with the parents. The Child Rep. advocates for what the Child Rep. thinks is best for the child -- but only after taking into consideration the child's wishes. Like with an attorney, communications between the child and the Child Rep. are confidential. The Child's Rep. MUST meet with the children and the parents and conducts an investigation much like a G.A.L. would. Unlike a G.A.L., however, the Child's Rep may not be called as a witness and so is not subject to cross-examination. "The Child Representative shall have the same authority and obligation to participate in the litigation as does an attorney for a party . . . ."
Because the Child's Rep. must (by law) interview the children, they are appointed only in cases where the children are old enough and mature enough to articulate their concerns and wishes.
The law was amended in 2006 and again in 2016, but the changes to the relevant portion are not substantive (changing "power and authority" to "authority and obligation" in the 2006 amendment which was retained in the 2016 amendment):
The question here is whether the "power and authority" of the child's representative to "take part in the conduct of the litigation as does an attorney for a party" includes the ability to file motions for changes in temporary custody. Interpreting section 506(a)(3) in accordance with its plain meaning . . . the child's representative, pursuant to his powers as an attorney, must be "able and obligated to conduct necessary discovery, file appropriate pleadings, depose and present witnesses, and review experts' reports." See Davis & Yazici, 12 Illinois Practice of Family Law 750 5/506 (2005-06 ed.) (discussing the role of an attorney for the child in dissolution of marriage proceedings). Further, section 603(a) of the Act provides that "[a] party to a custody proceeding * * * may move for a temporary custody order." 750 ILCS 5/603(a) (West 2004). Because the child's representative is to have the same power and authority to take part in the litigation as an attorney for the parties, and an attorney for the parties may move for a temporary custody order, we find that section 506(a)(3) does endow the child's representative with the authority to file motions for changes in temporary custody. If we were to hold otherwise, the child's representative would be unable to advocate for the best interest of the child during the dissolution of marriage proceedings. See 750 ILCS 5/506(a)(3) (West 2004).
In re: Marriage of Kostusik, 361 Ill.App.3d 103, 296 Ill.Dec.732, 836 N.E.2d 147, (1st. Dist., 2005)
Who Pays the Fees?: It's up to the Judge. The law (750 ILCS 5/506(b)) says the court may order "either or both parents . . . any other party or source . . . the marital estate or the child's separate estate" to pay the appointed G.A.L / Attorney for Child / Child Rep's retainer and continuing fees, costs, and disbursements. The appointee must submit invoices to the court (and the parties) at least every 90 days. The court reviews the invoices and approves the reasonableness of the fees.
The factors the court considers in allocating the fees of the AFC / GAL / Child Rep are those applied to attorney fee awards for the parties under 750 ILCS 5/501 and 750 ILCS 5/508. The allocation of the cost of the appointed attorney is left to the discretion of the court. McClelland v. McClelland, 231 Ill.App.3d 214, 595 N.E.2d 1131, 172 Ill.Dec. 461 (1 Dist., 1992), In McClelland,
Judith's income was approximately $16,000, 50% less than the previous year, as a result of the impact of the litigation. However, the amount did not include the $6,000 received in child support from Donald. Donald's income was reported at $25,000 to $30,000, less the $6,000 for an approximate net of $19,000 to $24,000. Thus, the parties relative ability to pay the fees was about equal.
McClelland v. McClelland, 231 Ill.App.3d 214, 595 N.E.2d 1131, 172 Ill.Dec. 461 (1 Dist., 1992).
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