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Why Do My Kids Have Their Own Attorney?

Posted by Gina Colaluca | May 17, 2017 | 0 Comments

Some people may be surprised to learn that the Court has the power to appoint an attorney for a child in a divorce or parentage dispute. However, the Court has the full authority to not only hire an attorney for the child, but to order the parents to pay for the child's attorney if they have the means to do so. According to Illinois law, in any proceedings involving support, allocation of parental responsibilities (formerly known as custody and visitation), education, parentage, property interest, or the general welfare of a minor or dependent child, the Court can appoint an attorney to represent the interests of the parties' child. The Court has the power to do so on its own motion, or on the motion of any party, should either parent feel an attorney for the child is necessary and request one from the Court. There are three types of attorneys that the Court can appoint for the parties' child: (1) a regular attorney, (2) a Guardian ad Litem, and (3) a Child Representative. Each of these types of attorneys have different roles and powers, and a Court may appoint a specific type of attorney for a specific purpose.

The role of the first type of attorney is just that – they act as a regular attorney to the child. This means that the attorney is independent from the Court and owes the same duties to the child as any other attorney would owe to any other party. Thus, if the Court appoints a regular attorney to represent the child, that attorney owes the same duties of loyalty, confidentiality, and competent representation. This attorney also has the duty to advocate for the child's interest, independent of the Court's opinion or either party's opinion. Because an attorney must generally comply with the client's wishes in a traditional attorney-client relationship, it is important that the child is mature enough to handle a traditional attorney-client relationship before an attorney is appointed for the child. If the child is not mature enough to be able to articulate his or her wishes to the attorney, the Court runs the risk that the attorney is advocating for what he or she believes the child's wishes to be, as opposed to the child's actual wishes. As a result, it is rare for the Court to make this kind of an appointment. Although it is rare for the Court to appoint this type of attorney for a child in a divorce or parentage matter, the Court might appoint this type of an attorney in situations where the child is of a certain age and maturity level, and the parents' interests and goals are severely adverse to or different from the child's best interests, such that the child would be protected if he or she had his or her own attorney.

The role of the second type of attorney, Guardian ad Litem, is a little more complex. This type of attorney is actually appointed by the Court to provide the Court with recommendations regarding the child's best interests, not to necessarily litigate on the child's behalf. The Court may use these recommendations to decide issues such as parenting time or which parent shall make all significant decisions regarding the child if the parents cannot agree on these issues. Because the Guardian ad Litem is appointed to provide recommendations to the Court, the Guardian ad Litem investigates the parties and the child by visiting the parties' homes to determine if the homes are a safe environment for the child, and by interviewing the parties, the child, and any other person of significance in the child's life. The Guardian ad Litem is then instructed to either write up a written report or testify to their opinion regarding certain issues in the case after investigating the parties and reviewing all of the facts. The parties will receive a copy of the report and, if the Guardian ad Litem testifies, are allowed to cross-examine the Guardian ad Litem like any other witness in the case. The Court will typically appoint a Guardian ad Litem in cases where it feels it needs more information regarding how the parties' parent their child. Sometimes this can indicate the Court is concerned about the child's welfare and whether either or both parents are providing a safe environment for the child, but not always. Sometimes the Court will appoint a Guardian ad Litem simply because the parties cannot agree on certain issues, and it feels it needs the recommendations of an outsider in order to help make an informed decision regarding any child-related issues.  Guardian ad Litems are typically appointed for younger children who cannot articulate their own wishes.

The role of the final type of attorney, Child Representative, is a little bit of a mix of the roles of both an attorney and a Guardian ad Litem, but also has its own specific role different from the other two types of attorneys. According to the Statue, “[t]he child representative shall have the same authority and obligation to participate in the litigation as does an attorney for a party and shall possess all the powers of investigation as does a guardian ad litem.” This means that, like an attorney, the Child Representative is independent from the court and can litigate and advocate for their own client's wishes. However, like a Guardian ad Litem, the Child Representative can also investigate the parties and the child just like a Guardian ad Litem would. Although the role of a Child's Representative can be similar to both a regular attorney and a Guardian ad Litem, a Child's representative also has two unique roles. The first unique role is that, unlike an attorney, the Child's Representative does not have to advocate the child's actual wishes, but rather, what the Child's Representative personally believes to be in the child's best interests. Although a Child's Representative must consider the child's wishes, the Child's Representative is not bound by those wishes. As a result, a Child's Representative can, and oftentimes does, advocate for outcomes that are different from the child's own wishes, because the Child's Representative believes that to be in the child's best interests.  The second unique role is that a Child's Representative must meet with the child and the parties to investigate the case like a Guardian ad Litem, but does so in order to try and encourage settlement between the parties. Thus, a Child's Representative is typically appointed by the court in cases where the Court wants an independent attorney to advocate for the child if no agreement is reached, but also wants to encourage settlement.

If you feel your child needs his or her own attorney in your divorce or parentage case, or if an attorney has been appointed to represent your child in your divorce or parentage case and you have questions, feel free to contact our office at 312-648-6155 for your free consultation today!

About the Author

Gina Colaluca

Gina L. Colaluca began working as an Associate Attorney at the Law Offices of Laura A. Holwell in 2013, where she focused her practice mainly in Family Law. She now continues to focus on Family Law, as well as Insurance Law and Appellate Law, here at Holwell Law Group, LLC.

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