Illinois judges are tasked with the responsibility of deciding who should have custody of a child in a contested custody proceeding. A contested custody proceeding can take place in divorce court if the parties are married or in parentage/child support court if the parties are not married. Illinois courts use a €œbest interests of the child€ standard when deciding custody. The court must decide whether the parents will share legal custody (decision-making power) and residential custody (with whom the child shall reside). Courts may need assistance in determining the legal custody and residential custody situation that is in the child€™s best interests. The court can decide to appoint an outside attorney to serve in one of three roles in the case: Attorney for the child, guardian ad litem, or child representative. A party can also petition the court to appoint an attorney to act in one of these three roles.

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.

If you have any questions about appointing an attorney for a child, a guardian ad litem, or a child representative, call Chicago divorce attorneys The Witt Law Firm, P.C. at (312) 948-9884 or email info@thewittlawfirm.com. The above blog post does not constitute legal advice. Please discuss your specific rights with an attorney.