Effective January 1, 2000, Illinois took another step towards protecting the interests of minor or dependent children caught in the middle of divorce or custody proceedings. P.A. 91-410 (H.B. 377) amended the Illinois Marriage and Dissolution of Marriage Act to allow courts to choose between three different statutory capacities in order to safeguard minor or dependent children: a representative of the child1, a guardian ad litem, or a child’s representative. This change comes in response to decades of confusion as to the duties of an attorney appointed under the Illinois Marriage and Dissolution of Marriage Act. This article will serve as an overview of both the past confusion and the current solution to the problem.
The prior statutory scheme created two different capacities, an attorney to represent the best interests of the child, and an attorney as the guardian ad litem for the child2. However, the statute failed to delineate the duties of either of the roles resulting in confusion among attorneys and the courts3. This confusion was reinforced and propagated by several appellate court decisions which either merged the duties of the representative of the child and guardian ad litem, or used the statutory capacities interchangeably so as to create a super-guardian ad litem who would determine the best interests of the child while simultaneously representing the child consistent with the traditional roles of attorney and client. Although there is a strong argument for judicial economy embodied in this approach, there is little support for the super-guardian in the text the former section 5/506. Furthermore, inherent ethical considerations may confront an attorney acting as both an instrument of the court and as legal counsel to the minor. The practical result of this confusion ranges from a mere textual juxtaposition to a serious confusion of functions which has been outcome determinative.
In In re Marriage of Wycoff, the minor’s father requested a post-dissolution modification of custody due to a substantial change of circumstances, affecting the current joint custody order4. In the space of three paragraphs, the Fourth District Appellate Court required the guardian ad litem to act as the representative of the child by making the minor’s preference as to living arrangement known to the court, while also emphasizing that the guardian ad litem is the "eyes and ears" of the court" under the direction of the court5. Similarly, the Second District Appellate Court held that a minor child’s father had to send notice to the children’s guardian ad litem, using the terms guardian ad litem and "representatives of the children" to refer to the same person6.
Unfortunately, the interchangeable use of the guardian ad litem and "representative of the child" has been outcome determinative. In In re Griesmeyer, the minor child’s mother filed a paternity action on behalf of the minor child naming both the mother’s former and current husbands7. The former husband had agreed to paternity as part of the dissolution agreement8. The central issue of the case was whether the former husband’s admission in the marital dissolution agreement collaterally estopped the minor from raising the issue of paternity9. The Fifth District Appellate Court overruled the trial court, stating that "where a court-appointed guardian ad litem represented the minor during the dissolution proceedings," those proceedings will bind the child, thereby estopping the paternity suit10. This decision clearly misuses the guardian ad litem as a traditional attorney for the child. Had the guardian ad litem in Griesmeyer been used in its traditional and appropriate role, the child would not have been represented in the dissolution proceeding and the paternity issue would not been foreclosed.
In Majidi v. Palmer, the court remanded the case for appointment of a guardian ad litem to file a petition for paternity "if she [the guardian ad litem] finds that such action is in the best interests of the child, and the trial court will supervise the guardian ad litem to insure that the child’s interests are not prejudiced."11 This case is a prime example of the confusion created by the former section 5/506. First, the guardian ad litem had to determine the best interest of the child consistent with the traditional role as the eyes and ears of the court. Secondly, rather than merely reporting its findings to the court, the guardian ad litem was essentially to represent the child in legal capacity in a paternity petition.
Interestingly, only one case deals with the "representative of the child" in its traditional role as counsel for the child. In re the Marriage of Francine Leopando, the "representative of the child" claimed that he should have been given notice of appeal12. The First District Appellate Court agreed, stating that "It is difficult to conceive of one [party] more entitled to notice of trial or post-trial proceedings affecting such custody than the minor child or children and their representatives."13 The Leopando Court treated the "representative of the child" appropriately by requiring that he receive notice in order to litigate his client’s interests.
The confusion regarding the nature of an appointed attorney’s duties to the minor child has deeply concerned the legal profession, thereby generating a flurry of law reviews, journal articles, practice standards and ethical guidelines. The Historical and Practice Notes of Ill.Rev.Stat., Ch. 40, sec. 506 (1977) as first enacted included this piece of advice:
The role of the attorney who is representing a child during custody, support, or visitation dispute is to: interview the child and parents; prepare and file pleadings; subpoena witnesses and documents; present and examine witnesses; encourage settlement of disputes; focus proceedings on the child’s best interests; seek to reduce hostilities; protect the child from unnecessary trauma; and generally represent the best interests of the child. [Italics added]
This practice note fails to define the role of the guardian ad litem, and attributes many of the functions of the guardian ad litem to the "representative of the child." Illinois is not unique, as many other state statutes similarly fail to define the role of the guardian ad litem14. Bar associations have also attempted to solve the problem with various regulations including the old ABA Model Rules of Professional Conduct, the ABA Rules of Professional Responsibility, the IJA-ABA Juvenile Justice Standards, and the National Advisory Committee for Juvenile Justice Delinquency Prevention Standards for the Administration of Juvenile Justice, among numerous others15.
The revised section 506 should relieve some of the confusion as the specific duties of both the guardian ad litem and the representative of the child, much to the benefit of interested children. First, the scope of section 506 is widened to include matters beyond "support, custody, visitation and property," to include education, parentage, and general welfare16. It is not clear from the caselaw or the legislative history of the amendment whether this change is necessary; where children are caught up in litigation between their warring parents, the courts should possess the powers necessary to protect the child.
The second and most important change in section 506 provides that the court may appoint an attorney to fill one of three statutory capacities, "an attorney to represent the child," "a guardian ad litem," or "child’s representative" upon the court’s own motion, or by a motion of any of the parties17. Further, the court may appoint another attorney to fulfill one of the other statutory capacities provided that good cause can be shown and set forth specifically in the appointment order.
750 ILCS 5/506(a)1 creates "an attorney to represent the child," clearly referring to traditional legal representation. The explicit removal of the attorney to represent the child from the role of the guardian ad litem or representative of the child should assist counsel in determining their duties, and to whom their duties are owed. The second statutory capacity, "a guardian ad litem to address issues the court delineates" is consistent with the traditional role of the guardian ad litem, as the eyes and ears of the court on specific issues18. Finally, the "child’s representative" is an amalgamation of the two other roles, and somewhat reflects the prior misuse of guardians ad litem found in the caselaw. The child’s representative will be an instrument of the court, charged with investigating and determining the child’s best interest, and advocating that interest through full participation in the litigation. Among other things, the child’s representative shall consider the wishes of the child without being
bound by them19. The statute also requires that the child’s representative receive training in child advocacy or some equivalent experience20. The amended section 5/506 fully recognizes the child’s representative as traditional legal counsel by explicitly providing for an attorney-client privilege and immunizing the child’s representative from being called as a witness21.
The new scheme for the payment of fees and costs remains essentially the same. The revised section 5/506 allows the court to enter an order for payment from either or both parents, some other party or source, the marital estate, or the child’s estate22. However, the court is forbidden from ordering the Illinois Department of Public Aid to pay fees when the parents or child are receiving Article X public aid23. The amended section 5/506 also characterizes fee orders as non-dischargeable in bankruptcy under 11 U.S.C.A. 523.
It seems likely that courts will favor the role of the child’s representative when an appointment is needed. The explicit authority granted to the child’s representative will strengthen the legitimacy and consistency of the role by relieving the confusion of the appointed attorney. The single appointment will result in a certain amount of judicial economy, as well as economy to the payor, in having a single lawyer represent the child. Ultimately, the new statutory capacity of the child’s representative is more consistent with what courts need from section 5/506-a disinterested advocate for the best interests of the child.
1 750 ILCS 5/506 (West 2000)
2 750 ILCS 5/506 (West 1999)
3 Chambers, Carole R., The Ambiguous Role of the Lawyer Representing the Minor in Domestic Relations Litigation, 70 Ill.B.J. 510, 511 (April 1982)
4 In re Marriage of Wycoff, 266 Ill.App.3d 408, 416, 639 N.E.2d 897 (Dist. 4 1994)
5 Id. at 416
6 In re Marriage of Maria Strauss, 183 Ill.App.3d 424, 427, 529 N.E.2d 808 (Dist. 2 1989)
7 In re Griesmeyer, 302 Ill.App.3d 905, 906 707 N.E.2d 72 (Dist. 5 1998)
8 Id. at 907
11 Majidi v. Palmer, 175 Ill.App.3d 679, 530 N.E.2d 66 (Dist. 2 1988)
12 In re the Marriage of Francine Leopando, 106 Ill.App.3d 444, 449 435 N.E.2d 1312 (Dist. 1 1982)
13 See Id.
14 Shepard, Robert E., and Sharon S. England, I Know the Child is My Client, But Who am I?, 64 FDMLR 1917, 1934 (March 1996)
15 Id. at 1934-1938
16 See 750 ILCS 5/506(a) (West 2000)
17 See Id.
18 See Id.
22 750 ILCS 5/506(b) (West 2000)
23 305 ILCS 5/10-1 et seq. (West 2000)