In our adversarial system of justice, the right to be heard is normally equated with the right to be heard through the assistance of counsel. The law treats children with special care and attention when it considers the need of these children to have representation in a courtroom.
The right to counsel for children is a recognized right in many types of judicial proceedings, such as in delinquency proceedings that may lead to incarceration. In those types of instances, minors have a constitutional right to appointed counsel.
In 1974 the Unites States Congress enacted Public Law 93-274, the "Child Abuse Prevention and Treatment Act". This legislation requires the mandatory appointment of a guardian ad litem to represent the abused or neglected child’s best interests in every case which results in a judicial proceeding. The legislation did not specify that the guardian ad litem had to be an attorney, but it has typically been an attorney who is appointed to fill this role.
Effective January, 1998, there is a change in the law concerning guardian ad litems in juvenile proceedings. P.A. 90 - 28, Art. 10, Sections 10 - 20 specifically provides: "(9) In counties with a population of 100,000 or more but less than 8,000,000, each guardian ad litem must successfully complete a training program approved by the Department of Children and Family Services. The Department of Children and Family Services shall provide training materials and documents to guardians ad litem who are not mandated to attend the training program. The Department of Children and Family Services shall develop and distribute to all guardians ad litem a bibliography containing information including but not limited to the juvenile court process, termination of parental rights, child development, medical aspects of child abuse, and the child’s need for safety and permanence."
Although no such training program exists in DuPage County at this time, the Family Law and Practice and Children’s Advocacy committees of the DuPage Bar Association have already begun meeting with Cook County Officials where such a program is in place.
Courts appear to have two options relative to children involved in parentage cases. The Illinois Parentage Act of 1984 (Act) provides that "if any party is a minor, he or she may be represented by his or her general guardian or guardian ad litem appointed by the court. . . ." 750 ILCS 45/7(c). The Act also grants authority to the court to appoint an attorney for a child. Section 18(a) of the Act specifically provides, "In the best interests of the child, the court may appoint counsel to represent a child whose parentage is at issue." 750 ILCS 45/18(a).
Assuming the court has determined that it is appropriate to appoint a representative for the child, the question then becomes whether the appointment should be of an attorney and/or a guardian ad litem.
The Historical and Practice Notes to Section 506 of the Illinois Marriage and Dissolution of Marriage Act, which authorizes the appointment of an attorney for the child in dissolution cases, provides that: "The importance of providing children with their own attorneys in family litigations was stressed in Smith v. Organization of Foster Families, 97 S.Ct. 2094, 53 L.Ed.2d 14, 431 U.S. 816 (1977). In Smith, which involved a challenge to the New York State procedures for removal of foster children, the Supreme Court observed that parents do not necessarily speak for the child: ‘All contend that the position they advocate is most in accord with the rights and interest of the children. In this situation, the District Court properly appointed independent counsel to represent the children, so that the Court could have the benefit of an independent advocate for welfare of the children, unprejudiced by the possibly conflicting interests and desires of the other parties."
It is true that under certain circumstances, the circuit court has an obligation to appoint a guardian ad litem, particularly when a minor is without proper representation. Majidi v. Palmer, 175 Ill.App.3d 679, 125 Ill.Dec. 148, 530 N.E.2d 66 (2nd Dist., 1988); McDonald v. McGowan, 163 Ill.App.3d at 697, 114 Ill.Dec. 779, 516 N.E.2d 934 (1st Dist., 1987); Roth v. Roth, 52 Ill.App.3d 220, 10 Ill.Dec. 54, 367 N.E.2d 442 (1st Dist., 1977). The appointment of a guardian ad litem is not necessary in every case. Klawitter v. Crawford, 185 Ill.App.3d 778, 133 Ill.Dec. 721, 541 N.E.2d 1159 (1st Dist., 1989).
In many instances, it is similarly unnecessary to appoint both an attorney and a guardian ad litem. In the case of Marriage of Koenig, 211 Ill.App.3d 1045, 570 N.E.2d 861, 156 Ill.Dec. 385 (1st Dist., 1991), a mother filed a parentage action against her former husband and against the person whom she asserted was the father of the child. The circuit court appointed an attorney to act on behalf of the minor child and the appropriate Appearance was filed.
On appeal, the mother claimed that the circuit court errored in its failure to appoint a guardian ad litem in addition to the appointment of an attorney for the child. The appellate court, citing Klawitter v. Crawford, supra, confirmed that a guardian ad litem need not be appointed in every case. The court went on to hold that the additional appointment of a guardian ad litem was not necessary in light of the fact that the child was represented by an attorney.
A guardian ad litem is appointed by the court to represent the best interests of the child. In these cases the services rendered by the court appointed individual are not to the child, but to the court on behalf of the child. The guardian ad litem acts as an independent fact finder and investigator and evaluates what actions further the best interests of the child.
An attorney representing a child appears to have an ethical obligation to advocate that child’s wishes, regardless of the attorney’s opinion. In these instances, the appointed individual acts as an independent legal advocate for the child and does not substitute his or her own concept of what is in the best interests of the child.
In order to determine whether or not the court should appoint a guardian ad litem or an attorney on behalf of a minor child, it seems appropriate to examine the individual needs of the child.
If an attorney representing a child must advocate the child’s wishes, the child must be able to demonstrate the capacity to understand the nature of the case and perhaps articulate a preference for the outcome. When a child is not able or not mature enough to engage in this type of dialogue with the attorney, it may be more appropriate for the court to appoint a guardian ad litem who can perform fact-finding duties on behalf of the court and make a recommendation as to the need to hire an attorney or other experts to participate in the case.
If, on the other hand, a child is mature enough to communicate with an attorney and the purpose of the appointment is to provide legal advocacy, then counsel should be appointed.
In those instances where it is appropriate to appoint an attorney on behalf of a minor child, a second concern arises regarding the participation of that attorney.
Section 7(a) of the Illinois Parentage Act allows for a Petition to Determine the Existence of a Parent and Child Relationship to be brought by the child, the mother, the alleged father or a public agency. There is no requirement that the minor child be joined as a party. In those instances where a Petition is brought by the child, the minor is specifically named as a party, and the attorney representing that child participates at trial as any other legal advocate.
In a typical parentage case, however, an action is commenced by the filing of a Petition by either the mother or the alleged father. In either instance the minor child is not specifically named as a party, and the question becomes whether or not the appointed attorney is allowed to participate at the time of trial on behalf of a non-party.
In Simcox v. Simcox, 131 Ill.2d 491, 546 N.E.2d 609 (1989), the Illinois Supreme Court held that children who are not parties are not the privies of their parents in dissolution proceedings. Similarly, the First District has refused to hold that a child was the privy of her mother in a paternity action based upon the differing interests of the child and the unwed mother. Maller v. Cohen, 176 Ill.App.3d 987, 531 N.E.2d 1029 (1st Dist., 1988).
The issue of privity was reviewed in greater detail by the court in Department of Public Aid ex rel. Skelton v. Liesman, 218 Ill.App.3d 437, 161 Ill.Dec. 183, 578 N.E.2d 310 (4th Dist., 1991). In Liesman, the defendant asserted that the Parentage Act established privity between the minor child and the mother because the Act allows an action to be filed by either the child or the parent. The court did not agree with this argument, holding that the "mere filing of a complaint by one or more of the parties able to bring an action under the Act does not in and of itself suggest privity with the nonfiling party or parties." Liesman, supra, at 440.
The Liesman court held that a minor was not barred from bringing a paternity action where his mother brought a prior paternity action which was dismissed with prejudice. Central to the court’s holding was its determination that there was no privity between the child and his mother at the earlier action because he was not named as a party and because of the differing interests of the child and the unwed mother.
According to Liesman, public policy of the Parentage Act is to recognize the right of every child to the physical, mental, emotional and monetary support of his or her parents. The Liesman court points out that this policy would be frustrated if the child was construed as a party in a proceeding in which the child was not of record, and that such a finding of privity would undermine the child’s express statutory right to independently seek a determination of paternity.
If, based upon Liesman, there is not privity between child and parent in a parentage action, what basis does the attorney representative have to participate at the time of trial on behalf of a non-party?
No other issue in family or juvenile court practice has generated more extensive discussion, disagreement and debate. The Supreme Court has yet to address this issue, and a quarter century of litigation in lower courts has not produced a clear mandate for any particular role. Only an analysis of decisions dealing with the rights of juveniles may give some indication as to how the court may eventually hold on the issue of an attorney’s proper role in representing a child-client.
There appear to be three possible roles for an attorney with a child-client. The first of these roles is the "champion" for the child’s best interests. The word "champion" originally comes from Justice Brennan’s opinion in Parham v. J.R., 442 U.S. 584 (1979), where the court stated in its concurring opinion, "Children incarcerated in public mental institutions are constitutionally entitled to a fair opportunity to contest the legitimacy of their confinement. They are entitled to some champion who can speak on their behalf and who stands ready to oppose a wrongful confinement."
A second approach is the traditional advocate for the child’s wishes. Under the advocate approach, the role of an attorney representing a child is no different than that of an attorney representing an adult. The attorney acting in this role will advocate the child’s expressed wishes.
A third approach involves the impartial investigator. Unlike the first two approaches, the attorney who assumes the role of the impartial investigator will not explicitly advocate a particular outcome. The attorney will investigate all relevant facts and legal issues and inform the court of any information not conveyed by other parties.
An attorney looking to clarify his or her obligations to a minor as a court-appointed attorney should start by referring to professional responsibility standards. The Illinois Rules of Professional Conduct, Rule 2.1, dictates that "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation."
The American Bar Association Model Rules of Professional Conduct offer additional guidance to the attorney with regard to his or her duties to a child-client. Rule 1.14 instructs an attorney to reasonably maintain a normal client-lawyer relationship when a client’s ability to make decisions about the case is impaired for reasons such as minority. Comment 1 does caution, however, that it might not always be possible to maintain a normal client-lawyer relationship in all respects. The comment goes on to state that "children as young as five or six years of age, and certainly those of ten or twelve, are regarded as having opinions that are entitled to weight in legal proceedings concerning their custody." Under the Model Rules, therefore, a lawyer is obligated to maintain a normal lawyer-client relationship with a minor who is capable of making "considered decisions".
These guidelines prove helpful in the representation of an older child-client, but what role does the attorney take when representing a much younger client? It can be argued that an attorney representing a child-client has a duty to represent both a child’s needs and wishes. An attorney’s duty to give preference to the client’s wishes should probably vary according to the client’s age - the more mature the client, the more weight is given to the child’s preference. This sliding scale may work well with older children but still does not address less mature child-clients.
One solution to the problem of a client incapable of instructing his attorney, such as with infants or younger children, is for the attorney to request the appointment of a guardian ad litem. The attorney can then advocate for the client’s views as set forth by the guardian.
A second possible solution to the problem of representing very young clients is for the attorney to use the "Doctrine of Substituted Judgment" to determine the views of the client. An attorney in this position would attempt to formulate a position based upon what the child would advocate if he or she were able to sufficiently comprehend the situation and could vocalize his or her opinions to counsel. This approach would require the attorney to act in the manner that the child would want, if the child were mature enough to verbalize that desire.
It is important for an attorney with a child-client to clarify his or her role at the outset. An attorney should ascertain from the court whether or not they have been appointed as legal counsel or guardian ad litem, and any confusion should result in immediate clarification from the bench. An attorney appointed as legal counsel has an ethical obligation to abide by his child-client’s wishes when a child is mature enough to be capable of understanding the general nature of the proceedings.
If an attorney has been appointed as legal counsel for a child too young to be capable of understanding those proceedings, the best solution may be to request the appointment of a guardian ad litem. In this instance the attorney would avoid confusion and any inference of impropriety by taking direction from an independent person who was expressly appointed to protect the interests of the child.
One of an attorney’s most significant roles involves the acceptance of an appointment to represent a child. Unfortunately, this assignment is not specifically defined either by statute, caselaw or specified training programs. It is this absence of role definition that encourages attorneys to continue to exchange ideas about the manner in which children should be represented in our judicial system. It is through this exchange of ideas that we can accomplish our goal of providing the best representation possible for the children in our county.
Eva W. Tameling is the Principal of Eva Tameling Associates, P.C., Hinsdale. Her practice is concentrated in Family Law. She received her Undergraduate Degree in 1978 from Elmhurst College and her Law Degree in 1979 from DePaul University.