Many times, children are the central point of arguments in any family or divorce proceedings. Often, little attention is paid, however, to the rights of children themselves. Parents frequently overlook these rights, instead focusing on their own concerns.
It is important that children are adequately and fairly represented to ensure their best interests are kept in mind. And, in the legal world, there are multiple legal personnel equipped to represent the interests of the children. There can be confusion as to the different options and the names are often used interchangeably, but there are three main options available under Illinois law: guardian ad litem, child representative, and attorney for child.
Guardian Ad Litem
A guardian ad litem is an individual who works to protect the best interest of the child. They are volunteer attorneys who are appointed by the court and assigned to a child as needed. Guardian ad litems are responsible for investigating the facts of the case and the family itself and also interviewing the children and any other relevant parties. Once a guardian ad litem completes the investigation, they will submit a written report and recommendations that are in the child’s best interest to the court. In addition, they may be called as a witness to testify in court. Unlike with other attorneys, what is said to a guardian ad litem does not fall under attorney-client privilege, so the guardian ad litem may be cross-examined as a witness on their report and recommendations.
Attorney for the Child
An attorney for the child is simply that: an attorney for a child in the more traditional sense. Their job is to provide independent legal advice to children (usually older children who understand the ramifications of the situation). As such, the traditional relationship of attorney-client applies. Communication is considered privileged and confidential, and the attorney for the child cannot be called to the stand as a witness. This individual’s job is not to give their own opinion but defend and advocate for what the child wants. Essentially, the child is their client and is treated as such under the law.
A child representative is also an attorney, but their sole focus is to advocate for what they believe is in the best interest for the child. Like a guardian ad litem, they can investigate the case, but they cannot be called to testify as a witness and be cross-examined. Furthermore, attorney-client privilege protections apply so all communications are confidential and privileged. Similar to guardian ad litems, a child representative determines what they believe is in the best interests of the child, but a child representative goes one step further and actively advocates his/her (not the child’s) position.
How Do You Pick Which to Use?
You don’t; the judge does. Many judges will assign a guardian ad litem, attorney for a child, or child representative in any case that involves the interest of a child. Guardians ad litem are commonly appointed in cases involving young children or abuse. Attorneys for the child are often used in cases where the children are older or in emancipation cases.
The court will also determine how the guardian ad litem, child representative, or attorney for the child is paid. Depending on the court and the circumstances, some of these attorneys are volunteers or operate on retainer with the court. In other cases, the judge will order the parents pay the fees.
Can We Help You?
Cases involving children must be handled with proper care and the right guardian ad litem or attorney can help you protect your interests and your children’s. Please contact our dedicated DuPage County family attorneys
today for answers to any questions you may have about the best interests of your children.