In the state of Illinois, there are three different options that a judge has when they consider appointing legal representation of a child. Illinois statute 750 ILCS 5/506 outlines the duties of the three forms of representation, and names them Attorney for the Child, Guardian Ad Litem (commonly referred to as a “GAL”), and Child’s Representative. Each kind of appointment works in a different way and will affect the way both you and your child interact with the representative.
Why would a Judge appoint a representative for my child?
In both domestic relations and domestic violence cases, a judge may be interested in knowing a minor child’s thoughts, opinions, experiences, and preferences. In cases that involve children and highly contentious guardians, it is more likely that a judge will seek separate representation for the child to ensure that the child receives adequate care by the court and their guardians. In these cases, a judge can appoint an attorney to act in different ways to better understand what is best for the child, and how that may fit in with the parent’s wishes.
Attorney for the Child
A position with the greatest amount of power in proceedings, an attorney appointed on behalf of a child is the rarest form of appointment that a court will make. Because this role does not involve advocating on the child’s behalf, but rather acting as a third attorney in an adversary proceeding, most Judges prefer to appoint either a Guardian Ad Litem or a child’s Representative.
An important distinction between an attorney for the child, and Guardians ad Litem or Child’s representatives, is that the Attorney for the child can file motions and set court dates. Additionally, an Attorney for the Child has a duty to advocate for the child’s wishes, while GALs and Child’s Reps are appointed to advocate for the child’s best interest. This distinction can overlap, but is important to make, nonetheless. Situations where the child’s wishes are opposed to their own best interest are not infrequent, and depending on the court’s appointment, the case may be decided differently. To better understand the differences, see the example below:
Charlie Bucket and the Case of Candy for Dinner
After being gifted the Willy Wonka Chocolate factory, Charlie Bucket’s family quickly moves in, and began a prosperous life among the Oompa Loompas. Mr. and Mrs. Bucket squabble over Charlie’s nutritional intake. Mrs. Bucket thinks that Charlie should have a nutritious dinner and enjoy his chocolate creations as a treat. Mr. Bucket does not see the harm in letting Charlie experiment with his food preferences and thinks Charlie should have a choice in what he has for dinner.
Mr. and Mrs. Bucket decide to file for divorce in Illinois, and they have been unable to agree on parenting time with Charlie.
To help the parties come to a settlement, the Judge in the case appoints an Attorney for the Child to Charlie Bucket. Charlie loves candies and chocolate and is researching a way to perfect the experimental gum so that it does not turn children into blueberries. He has asked his attorney to file a motion requesting that his father have full parenting time, because his father will allow him to eat gum and candies for dinner. The attorney acts accordingly, and Mr. Bucket is granted full parenting time over Charlie, a rare decision to be made by the judge.
Conversely, if the Judge were to appoint a GAL, or a Child’s Representative, they would be bound by law to advocate for Charlie’s best interest, not his wishes. Here, it is likely that a GAL or Child’s Rep. would recognize the value of a nutritious meal and award a joint parenting time schedule with Mr. and Mrs. Bucket.
Guardians Ad Litem
Unlike the Attorney for the Child, a Guardian ad Litem, or GAL, cannot participate in the litigation process. GAL’s have been described in many instances as the “eyes and ears of the Court” meaning that their main duty is to investigate and provide additional information to the Judge.
Guardians’ ad Litem have the duty to interview the child and the parties. They have the power to subpoena outside individuals who may provide more information about the child and the case, such as therapists, doctors, teachers, social workers, and family members. The power to subpoena outside parties for information is not restricted to relationships, which allows the GAL to tailor each investigation to the particular child’s needs.
GALs are required to draft and remit at least one report of the case and must submit that report “no less than 30 days before a final hearing or trial.” The function of this report is to provide information to the Judge regarding what the GAL found during their investigation. This report can be entered into evidence, and the GAL themselves can be called at trial or deposed as a witness.
GALs may also be granted additional powers in the case. At the judge’s discretion, a GAL can be present for In Camera (in the Judge’s chambers) interviews of the children, they can issue subpoenas for information in their investigation, and may file pleadings regarding ONLY the procedure of the case.
Child’s Representative
Similar to a GAL and an Attorney for the Child, a Child’s Representative functions as nearly a hybrid of both.
A Child’s Representative has the duty to review the facts of the case, and advocate for the child’s best interest, in the same way that a GAL would. Unlike a GAL, a Child’s Representative is required to at least consider the child’s wishes, but they are not bound by the child’s wishes, like an Attorney for the Child would be.
In the same manner as a GAL, a Child’s Representative is mandated to meet with the child and the parties, but is also mandated to participate in litigation like an Attorney for the Child.
What sets a Child’s Representative apart from the other kinds of established appointments for children is their requirement is to file a pre-trial memorandum. While Attorneys for the Child may also (and should) file pleadings, the Child’s Representative Memorandum is given different weight by the court. The Representative report may not be entered into evidence, or used as evidence, and the Representative themselves cannot be called as a witness to testify. In this way, a Child’s Representative has significant sway with the court for settlement purposes, but if settlement does not occur, the Representative takes a back seat during Trial.
What will it cost me to have someone appointed for my child?
Appointing a lawyer to represent your child or children is like most legal work: not cheap.
For low-income individuals in Cook County, the most affordable option is the appointment of a Child’s Representative through the Office of the Public Guardian. At the time of posting, the retainer cost for the Office of the Public Guardian starts at $1,000.00, which is divided between the parties.
Another low-cost option is to request that your Judge appoint a free or low-cost GAL. These requests can be denied, and often require the parties to submit information regarding their income for the judge to determine exactly what fees should be paid.
Private appointments will look very similar to a standard attorney fee, including an initial retainer and an hourly rate for services.
It is important to remember that each family, each child, and each case are going to be different. If you or a loved one are facing legal action in Cook County and are concerned about the court adequately reflecting your children’s wants and needs, The Nordgren Law Office has over 40 years of experience advocating for parents and children’s rights.