In contested divorces that involve families with minor children, a Child Representative (Child Rep), an Attorney for the Child (AC) or a Guardian Ad Litem (GAL) may be assigned at the court’s discretion to act on behalf of those children. Child Reps, ACs and GALs are licensed attorneys. Although the court assigns the representatives to the child, the parents are typically responsible for the child advocate’s fees.
Under Illinois law, there are several variations between the responsibilities of a Child Rep, an AC and a GAL. An AC serves as independent legal counsel for the children. In Illinois, the use of a Child Rep or GAL is much more common than an AC. The Child Rep and GAL’s primary focus is the best interests of the child. There are significant differences in how those representations play out, however.
The biggest difference between the three is that a GAL is an agent of the court and therefore is tasked with investigating the child’s situation to determine and make a recommendation to the court on what serves the best interest of the child. ACs and Child Reps are advocates for the child but do not make a formal recommendation to the court.
A GAL is tasked by the court with investigating the question of how custody should be determined where contested. A GAL will interview all of the parties and the child involved. Once the investigation is complete, the GAL will issue a report to the court with the results and a recommendation for how the parental duties and time should be divided in the best interests of the child. The report is available to all of the parties in the case.
The GAL may be called by either party to the proceedings as a witness to testify about his or her findings and for the purposes of cross-examination of the recommendations contained in the report. While judges are not required to follow the GAL’s recommendation for allocating parental responsibilities and time, judges often do go with what the GAL outlines.
A Child Rep is appointed by the court to advocate what he or she believes is in the best interests of the child, and like the GAL, the Child Rep interviews the children and the parties and investigates the facts of the case. The Child Rep tries to encourage settlement and alternative forms of dispute resolution.
Rather than submit a formal report to the court like a GAL, however, a Child Rep will submit a pretrial memorandum disclosing his or her position as to what he or she intends to advocate on behalf of the child. That memorandum cannot be considered as evidence in a court proceeding and is generally used as the position of the Child Rep for purposes of a settlement. If there is no settlement, a Child Rep may participate in the court proceedings by offering evidence based legal arguments as to what is in the best interests of the child.
An AC acts as the child’s lawyer and is not required to conduct an investigation, meet with the child and parents, or draft a report on his/her findings.
Contested custodial proceedings can differ significantly depending on whether a GAL, AC or Child Rep is appointed to represent the child. It is best to seek out legal counsel to have a full understanding of the advocate’s role and what it means for the case.
