Guardians ad Litem: Someone Must Think of the Children

 Posted on December 13, 2013 in Guardianship

Divorce is a fact of life for many Illinois residents. What many do not consider is that while the spouses have chosen to end their marriages, the children of these marriages do not have a choice in what goes on. Yet divorce still affects children just as much as adults. Perhaps more so because they lack the experience and knowledge to fully comprehend the situation.

Because of this, Illinois law has a provision that allows for someone to represent the child in the divorce proceedings. Upon motion by either party to the divorce, or upon motion of the court, either an attorney for the child, a child representative, or a guardian ad litem will be assigned to the child or children in the case. Each position is subtly different, but the goals are the same: to protect the best interests of the child.

Similarities and Differences

All three representatives perform generally the same functions. They will speak with the child with or without the presence of the parents. Then, they will speak to both parents individually. This conversation is not privileged. It is conducted for the purposes of assessing the best interests of the child and writing a report that will be submitted to the court. As the attorney for the child, the only conversation that is privileged is between the representative and the child.

The representative, after conducting the interviews, may observe the child as conducts his ordinary life. After all evidence is collected, the representative will compile a report that will include an opinion on what sort of custody situation the child should be placed in. This can be frustrating to one of the divorcing spouses, as inevitably the representative will have to pick sides. However, the representative only has the child’s best interests in mind.

After submission of the report, the attorney for the child and the child representative’s job is complete. Not so of the guardian ad litem. Under Illinois law, the guardian ad litem can be called as a witness to explain parts of the report and give reasons for choosing the way he did.

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