We need a statewide dialogue on the use of attorneys appointed to represent children

Most judges and many practitioners in family law would agree that perhaps the most important attorney in a custody case is the person appointed as Guardian ad Litem, Child Representative, or Attorney for the Child. However, there is little, if any, uniformity as to how those attorneys are expected to function, much less how they are selected. Nevertheless, it appears that the selection and use of attorneys to represent children in custody cases is not often discussed by judges across Circuits in the state. Is it beneath their radar? Do they assume other circuits use the same criteria? Is it merely because appellate courts are rarely, if ever, presented with such issues?

In the brief discussions of the committee on Representing Children of the Family Law Section Council, it is apparent that the differences across the state are substantial. For example, in some courts, new lawyers are appointed to represent children to give them experience. In others, only experienced lawyers with at least one custody trial under their belts are qualified for appointment.

It has become apparent to many of us who serve in this function that a statewide dialogue is needed to raise awareness among the judiciary of the statutory and regulatory mandates on attorneys filling this important role, as well as the vast differences in judicial attitudes toward the use of GALs and child representatives. In some situations those representing children are required by the judge to act in a way which may violate Supreme Court Rules, and also our Rules of Professional Conduct.

We recognize, however, that economic factors play a significant part in the decisions of courts utilizing children’s representatives in order to serve the best interests of the children at the center of the litigation. Our project is not meant to invoke blame or evaluate the actions of judges presiding over custody disputes, but to promote an exchange of information which may elicit new approaches and alternatives and more deliberate, better practices tailored to the cases at hand.

Ultimately the ideal result will hopefully be that judges across the state form a consensus as to what are the best practices in using attorneys to represent children and what can be done within that context to accommodate for economic and other factors which impinge on those practices.

We intend to start by asking questions. And we don’t know all of the questions which should be asked, so we encourage readers to contribute their own suggestions. Please feel free to email Marilyn Longwell at mlongwell@longwell-law.com or trevaoneill@gmail.com so they may share your suggestions with other members of the committee.

As a starting point, we believe that the following are important inquiries to be made:

1. How are children’s representatives (this term is used in this article to include GALs, Child Representatives, and Attorneys for the child) qualified for appointment? Are there any training or experience requirements beyond admission to practice and the minimum education required by the Illinois Supreme Court?

2. Do judges in the circuit only appoint GALs or do they also appoint Child Representatives and/or Attorneys for the child?

3. If only one category is used, why?

4. If more than one category is used, what criteria are employed?

5. What is expected of those appointed? Are they also expected to serve as psychologist/social worker, mediator (in which mediation discussions are confidential), and lawyer?

6. Are Child Representatives expected to make recommendations during the litigation? Are those recommendations expected to be merely on temporary or procedural or discovery matters or as to the ultimate issue? Does any recommendation on any matter violate the statutory mandate?

7. Are GALs expected to function as a psychologist/social worker? In other words, are they simply supposed to report facts and a recommendation or are they expected to analyze family dynamics and the psychological effects of a parent’s actions on a child?

8. Are Attorneys for the child expected to act like GALs or Child Representatives or like social workers?

9. How are children’s representatives paid? Are they required to take on any pro bono cases?

10. Does the circuit utilize “temporary GAL appointments”? If so, what are the conditions of the appointments?

Do you have additional questions to suggest? Do you have experiences (as representative or lawyer for a party) to share which might assist in this inquiry?

We expect to interview some judges, children’s representatives and others to elicit questions, experiences, and suggestions to aid our investigation. We welcome your participation as we delve into this inquiry.

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This article  was originally published in the September 2015 issue of the ISBA's Family Law newsletter.