Representing the child in proceedings under the Illinois Marriage and Dissolution of Marriage Act

Section 506 of the Illinois Marriage and Dissolution of Marriage Act authorizes the court, on its own motion or by motion of either party, to appoint an attorney to represent the children "in proceedings involving the support, custody, visitation, education, parentage, property interest or general welfare of a minor or dependent child."

Pursuant to section 506, the court may appoint an attorney to act in one of three capacities. First, an attorney may act as "an attorney to represent the child" or what is commonly known as an Attorney for the Child (AFC). The AFC has a fiduciary relationship to the child. He or she acts in the traditional role of an attorney representing his or her client's expressed desires regardless of whether the attorney believes the desires are in the child's best interests. The court usually will appoint an AFC when the child is older and may have voiced strong preferences.

Second, the attorney may represent the child as a guardian ad litem (GAL). Unlike an AFC, the GAL is not required to advocate the child's expressed desires. Rather, the GAL is charged to represent what he or she believes is in the child's best interest. Additionally, the GAL does not have a duty of confidentiality to the client.

The GAL acts more as an investigator than an attorney. The GAL does not call or cross-examine witnesses and does not give a final argument. The GAL can file reports with the court regarding his or her recommendations regarding the best interest of the child. Importantly, a GAL can report information to the court that would otherwise be inadmissible and rely on otherwise inadmissible testimony in making his or her recommendation. As the GAL does not have a duty of confidentiality to the child, the GAL may report on information obtained through the child. Usually, the court will appoint a GAL for a child who the court considers too young or too immature to express a preference.

As the AFC acts solely as an attorney and advocates the child's desires, he or she is not subject to cross-examination. The GAL, however, has the ability to investigate and report to the court and is subject to cross-examination.

Finally, the court may appoint a child's representative, which is a hybrid between the AFC and GAL. As the statute provides, the child's representative has the "same power and authority to take part in the conduct of the litigation as does an attorney for a party and shall possess all the powers of investigation and recommendation as does a guardian ad litem." 750 ILCS 5/506.

While the child's representative is required to consider the express wishes of the child, she is not bound by them. The child's representative has a duty of confidentiality to the child. The statute also provides that the child's representative "shall not be called as a witness regarding the issues set forth in this subsection." 750 ILCS 5/506(a)(3).

The Special Subcommittee of the Illinois State Bar Association drafted and lobbied for the child's representative statute because prior to the child's representative, the court in certain circumstances appointed both a GAL and an AFC to represent the child. For example, if the court appointed an AFC and the AFC believed the child's preferences were not in the child's best interest, he or she could request that the court appoint a GAL to investigate the situation and to report what he or she felt was in the best interests of the child.

Many attorneys believe the child's representative statute is unconstitutional because a child's representative may rely on the child's statements in his or her recommendations to the court, but may not be examined by the parties. As the court appoints the child's representative, his or her recommendations carry significant weight in determining crucial issues such as child custody and visitation, which affect a parent's fundamental liberty interest for the care, custody and control of their children.

Under the statute, an overworked child's representative can make recommendations after minimal contact with his or her client and without using his or her investigative powers and the parties are not permitted to cross-examine him or her "regarding the issues set forth in this subsection." 750 ILCS 5/506(a)(3). As the child's representative is not required to advocate the child's express desires, the child's representative is not accountable to the child, the parents or the court.

In a recent case challenging the constitutionality of the child's representative statute, the Second District Court of Appeals held that the child's representative statute is constitutional. In re Marriage of Bates, 342 Ill.App.3d 207, 794 N.E.2d 868, 276 Ill.Dec. 618 (2nd Dist. 2003). Interestingly, in support of its position that the child's representative statute is constitutional, the Second District Court held that a child's representative could be examined in court if he or she "directly witnesses relevant facts and circumstances that are used to support the recommendation." In re Marriage of Bates, 342 Ill.App.3d at 214. The court also held that a party could request the court condition the child's representative's recommendation on revealing his or her sources so the parties can examine the sources. Id.

On December 3, 2003, the Illinois Supreme Court accepted the appeal in In re Marriage of Bates.