Children of Divorce: When to Use a Child’s Representative or Guardian Ad Litem

Divorce can be especially complicated when the parties cannot agree on child custody, visitation, or children’s expenses. These disagreements can include school enrollment, college contributions, holiday schedules, regular parenting time throughout the week and weekend, and babysitting fees, among other issues. If the parents cannot come to an agreement on any of these issues, the court may choose to appoint one or more separate lawyers to look after the child’s interests.

The court has discretion in deciding which of the parties will pay for the child’s advocate. The most common arrangements ordered by the court are to have each party pay half of the fee, or to have one party pay the entire fee. Alternatively, the court may order that the fee for the advocate be paid from the marital estate or out of the child’s separate estate, such as a trust fund or inheritance the child has already received.

Lawyers appointed by the court to serve as a child’s advocates can serve in different roles, including a child’s representative, or as a guardian ad litem.

Child’s Representative

A child’s representative is an attorney who has received training in child advocacy or has other experience that the chief judge of the circuit court deems equal to such training. After his or her appointment, the child’s representative reviews the facts of the case and meets with the child and the parents in order to form an opinion on the best interests of the child. In determining the best interests of the child, the child’s representative must consider the child’s expressed wishes. However, the child’s representative is not bound by the child’s wishes.
The child’s representative has the same duty of confidentiality to the child as an attorney for the parents has to that party. The duty of confidentiality cannot be broken unless a break in confidentiality is required by law or by the Rule of Professional Conduct.
The child’s representative must also encourage the parties to come to a settlement through other forums for dispute resolution, such as mediation. If the parties cannot come to a settlement through these other methods, then the child’s representative must prepare a pretrial memo to the parties or their attorneys and to the court as to what the child’s representative believes to be in the best interests of the child. However, this memorandum is not to be considered evidence at trial, and the child’s representative cannot prepare an opinion, recommendation, or report to the court on their beliefs, but instead can only be taken under consideration in a settlement conference.

Guardian Ad Litem

A guardian ad litem (“GAL”) performs a duty very similar to that of a child’s representative. The GAL investigates the facts of the case, interviews the children and the parties, and forms an opinion on the best interests of the child. Unlike a child’s representative, the GAL does not need to encourage the parties to settle the issues outside of court. Instead, the GAL prepares a written report for the court and the parties on his or her opinion, or can be called as a witness to testify on the stand as to their opinions. The opinions of the GAL are allowed to be considered as evidence in a hearing or trial regarding any issues related to the child.
If you are going through a divorce or custody case call Kiswani Law today for a free consultation at 708-210-9247.