Guardian Ad Litem Or Child Representative?
Matthew A. Kirsh, ISBA Family Law Newsletter, October 2013
Why Lawyers and Judges Need To Be More Deliberate About Designating Role Of Attorneys Representing Children
If you practice family law in Cook County, you know that when a child needs representation in a case, the court will almost, without fail, appoint a child representative and not a guardian ad litem or an attorney for the minor child. If you practice family law in DuPage County you know that when a child needs representation in a case, the court will almost, without fail, appoint a guardian ad litem and not a child representative or an attorney for the minor child.* I am sure that the judges in both counties have their reasons for their respective practices, but lawyers are not privy to their intra-judicial thought processes. As a practitioner, I do know that the seemingly automatic appointment of attorneys as child representatives or guardians ad litem does not always serve the interests of the children or parents involved in the cases. Each case should be considered individually and lawyers and judges should carefully consider which role will best serve the interests of the minor child for whom representation is being appointed.
When appointing a legal representative for a minor child, 750 ILCS 5/506 allows the court to designate that the attorney fulfill one of three roles: guardian ad litem, child representative or attorney for the minor child. The differences in the roles are clearly spelled out in Section 506. Courts rarely appoint an attorney for the minor children, presumably because the attorney in such a role has no “best interests” obligation; an attorney for minor child is ethically bound to advocate for the wishes of the child, no matter how those wishes correspond to the child’s best interests. A guardian ad litem is the “eyes and ears of the court” and “shall testify or submit a written report to the court regarding recommendations in accordance with the best interests of the child.” A guardian ad litem has no confidentiality with the child and may be cross examined after rendering a best interests opinion. A child representative is often described as a hybrid between attorney for the minor child and guardian ad litem. A child representative has a confidential relationship with the minor child and cannot be called as a witness, but also has the duty to advocate for what he finds to be in the child’s best interests. Pursuant to the letter of Section 506, a child representative may only express his position in a pretrial memorandum.
With the foregoing as a backdrop, courts should carefully consider which role will best serve the interests of a child when appointing a legal representative for that child.
A child representative is more appropriate when the children involved in the case are older and the idea of confidentiality is important to make it easier for the child to disclose personal information that the child may not want his parents or other relatives to know. If it appears that a case is going to go to trial and/or the court has appointed its own expert witness pursuant to 750 ILCS 5/604(b), a child representative may be more appropriate. In such cases, a best interests advocate is essential (if, for example, the child representative disagrees with the expert) and the court will have the benefit of the expert’s opinion which lessens the importance of an opinion from a guardian ad litem. By insulating the child’s statements from disclosure with attorney-client privilege, the appointment of a child representative can prevent a child from the anger or disappointment expressed by parents who both believe they should have custody.
There are cases when the appointment of a guardian ad litem will better serve the interests of a child than would the appointment of a child representative. If a child is non-verbal or too young to understand the concept of confidentiality, a guardian ad litem will be a more effective best interests attorney. Most cases do not go to trial and most families cannot afford drawn out custody litigation involving two attorneys for the parents, a child’s attorney and an expert witness. Often deadlocked parents need a neutral, third-party opinion to get them off of their entrenched positions. In this situation, a recommendation from a guardian ad litem may be just what the parents need to break the deadlock. Also, a guardian ad litem’s recommendation early in the case is a useful tool for the parents’ attorneys who are probably trying to extol the virtues of settlement. Many cases need an opinion or recommendation on temporary issues such as a parenting schedule while the case is pending. In such a situation the court is going to most likely look to the child’s legal representative for guidance. In my opinion, a court is on more solid ground when entering a temporary order upon the recommendation of the guardian ad litem who can be cross examined by the parents’ attorneys. In this way, the temporary order is based on evidence, as opposed to merely the argument of attorneys.
If a case is going to trial and a 604(b) expert is financially unrealistic, a guardian ad litem can provide opinion testimony from a professional whom the court trusted enough to appoint in the first place. In my opinion, under Wilson v. Clark a guardian ad litem can testify to matters that would otherwise be considered hearsay as long as the information is the kind of information customarily relied upon by guardians in the performance of their duties. While an attorney serving as a GAL does not have the extensive educational and training background of a mental health professional, most GALs, through both education and experience, are capable of making a well-reasoned best interests recommendation.
Many lawyers fear that acting as a GAL will subject them to civil liability and that the liability will not be covered by their malpractice insurance. This simply is not the case. GALs and child representatives have absolute immunity from civil liability. Vlastelica v. Brend, 954 N.E.2d 874 (1st Dist. 2011). My ISBA Mutual professional liability policy defines “Professional Services” which are covered by the policy as services including “as an administrator, arbitrator, conservator, executor, guardian, mediator, notary public, personal representative, real estate title insurance agent, receiver, trustee or in any other similar fiduciary activity.” To me that says, “no matter what your role, you are covered.”
In conclusion, when appointing legal representation for a child, lawyers for the parents and judges should carefully consider which role will best serve the child’s interests in that particular case. If the attorney who is appointed feels that he or she could better serve the child’s best interests in a different role, the attorney should ask to have their role changed. However, such a request must be made before meeting with the children. Attention to the designation of child representative or guardian ad litem can make a big difference in the quality of representation you are able to provide in a case.
* My practice is limited to Cook and DuPage and I freely admit that everything in this article is based upon my experiences in these two northern Illinois counties.