The Journal of The DuPage County Bar Association

Back Issues > Vol. 16 (2003-04)

The Bates Decision: The Rationalization of an Unconstitutional Child’s Representative Statute
By Deborah A. Carder and Abigail M. Chiesa

In cases involving children, the court’s decision is difficult and the consequences are significant. Therefore, it is certainly in the best interests of children for the court to consider as much relevant information as possible before making these tough decisions. In order to assist the fact-finder in making determinations regarding children, the court may appoint an attorney for the child or a guardian ad litem pursuant to section 506 of the Illinois Marriage and Dissolution of Marriage Act1 ("IMDMA"). Effective January 1, 2000, section 506 was amended to allow the court to also appoint a child’s representative.

While the child’s representative may be a valuable option for the court, section 506(a)(3) violates parents’ rights to due process and equal protection and must be stricken. The statute, as written, denies parties their right to cross-examine the child’s representative, thereby limiting the parents’ ability to fully participate in the litigation. Despite the blatant denial of parents’ rights, on July 9, 2003, the Appellate Court for the Second District held the statute constitutional in the case of In re Marriage of Bates.2

This Article provides a brief overview of the child’s representative statute and analyzes the Bates decision and its ramifications. It also explores the constitutionality of section 506(a)(3) and offers practical considerations for the domestic relations attorney in dealing with the child’s representative statute.

The Creation of the Child’s Representative.

The representation of minor children in proceedings filed under the IMDMA has historically been served by attorneys acting as (1) an attorney for the child or (2) a guardian ad litem. Traditionally, an attorney for the child acts as an advocate while pursuing the goals of the child and taking direction from the child. The child’s communications with the attorney are afforded the same protections as any attorney-client communication and, therefore, are privileged and not subject to discovery.3 An attorney for the child can conduct discovery and participate in legal proceedings. An attorney for the child cannot submit written reports to the court or be called to testify.4

On the other hand, a guardian ad litem acts as an investigator. In determining and advocating for the child’s best interest, a guardian ad litem’s position is often at odds with the preferences or wishes of the child.5 A guardian ad litem may file a report with the court, can be called as a witness, but may not engage in discovery or file pleadings.6 The child’s communications with the guardian are not protected by the attorney-client privilege.

While the attorney for the child and the guardian ad litem serve two different purposes, Illinois was one of three states whose statute allowed the courts to appoint an attorney to act in both capacities at the same time. Although an attorney for the child and a guardian ad litem have similar investigative functions, the variance in their powers created an inherent conflict in the dual appointment.7 In an effort to resolve the differences between the attorney for the child and the guardian ad litem, and to avoid any further conflicts with dual appointments, section 506 of the IMDMA was amended to create a hybrid position known as the child’s representative. In addition to either appointing an attorney to represent the child or a guardian ad litem, the court could now appoint an attorney as:

"a child’s representative whose duty shall be to advocate what the representative finds to be in the best interests of the child after reviewing the facts and circumstances of the case. The child’s representative shall have the same power and authority to take part in the conduct of the litigation as does an attorney for a party and shall possess all the powers of investigation and recommendation as does a guardian ad litem. The child’s representative shall consider, but not be bound by the expressed wishes of the child. . . The child’s representative shall not disclose confidential communications made by the child, except as required by law or by the Rules of Professional Conduct. The child’s representative shall not be called as a witness regarding the issues set forth in this subsection."8

Invariably, the child’s representative is an attorney who is aware of the process and the pitfalls of the process. The laws of the State of Illinois require decisions to be made that are in the child’s best interests. The child is paramount. In order for the trier of fact to make decisions which have substantial effects on the future of the parties and the children, the trier of fact needs to have all the necessary information and the rationale for the positions asserted. A guardian ad litem is required to explain the basis of his or her recommendations and/or observations. An evaluator appointed by the court, presumably an independent witness, also must explain the basis of his or her recommendations. Finally, an evaluator requested by one of the parties has the same obligations and responsibilities. Why not the child’s representative? Their recommendations, observations and opinions may be critical. Yet, under the current law,9 the child’s representative has the ability to conceal and shelter the underlying facts to their recommendations which, in the most unfortunate circumstances, may adversely affect the child’s best interests. The function of the court is to determine this issue and it should not be delegated to an individual who possesses special powers unique to the position of child’s representative.

The reality is that decisions regarding custody and visitation are difficult for anyone to make, whether it be judge or lawyer. However, to shield an individual who by statute has the right to make recommendations and provide substantive opinions free of cross-examination or with the ability to invoke confidentiality only brings the process into disrepute. The enactment of the child’s representative statute was a well-intentioned attempt to provide for the appointment of an individual who could represent the best interests of the child and have powers of investigation and recommendation, while giving the child the assurance of client confidentiality. However, the prohibition against calling the child’s representative as a witness violates the parties’ constitutional rights, an issue that was raised by the mother in the Bates case.

The Reasoning of the Bates Decision.

In Bates, the father brought a post-judgment motion to transfer custody of the parties’ child to him and to terminate unallocated support. During the proceedings, the trial court appointed a child’s representative under section 506(a)(3) of the IMDMA. In the child representative’s written report and recommendations submitted to the court, he stated that he reviewed certain pleadings, doctors’ reports, the child’s school and medical records, photographs and reports, and other documents. According to the child representative’s report, he also made personal observations during meetings and interviews with the mother, father, and the child, as well as when he attended visitation between the child and father. The child representative’s report contained several factual assertions based on these personal observations, which provided part of the underlying basis for the recommendations in his report.10

On the scheduled trial date, the mother filed a motion to order the child’s representative to testify or, in the alternative, to strike his written recommendation and to declare section 506 of the IMDMA unconstitutional. The trial court denied her motion. The mother appealed the decision, contending that section 506 denies her procedural due process because it allows the child’s representative to submit a recommendation to the court without testifying, thereby denying her the right to cross-examination concerning the underlying factual basis of the recommendation.11

The Second District Appellate Court affirmed the trial court’s decision. Relying on People ex rel. Sherman v. Cryns,12 the Appellate Court held that statutes are presumed to be constitutional and the challenging party has the burden to clearly establish the constitutional invalidity. It also held that a court must construe a statute as constitutional if it is reasonably capable of such a construction.13

The Court in Bates claims to resolve the constitutional issue under a plain reading of the statute. It uses the following language of section 506(a) to justify its finding that the statute is constitutional: a child’s representative may be appointed "…subject to the terms or specifications the court determines."14 The Court sets out three possible scenarios in which the child’s representative might act as an advocate for the child:

(1) The child’s representative advocates his recommendation based only upon evidence presented at the trial. In this situation, the child’s representative is doing no more than an attorney representing the child would do. Therefore, prohibiting his cross-examination is not a denial of due process rights.

(2) The child’s representative advocates his recommendation based upon information provided by third-party investigators or witnesses. In this situation, the Court interpreted the statute to allow a party to request that a court condition any recommendation of the child’s representative on revealing any factual sources underlying that recommendation. To the extent the child’s representative reveals any third-party witnesses or investigators, those individuals may be examined by the opposing party, thus giving them their right to conduct cross-examination on the underlying factual matters.

(3) The child’s representative advocates his recommendation based upon his own observations as a direct witness. The Court held that if the child’s representative directly witnesses facts and circumstances that are used to support his recommendation, then he has "stepped out of his attorney role and has become a witness who may be called and questioned at trial as any other witness under the terms or specifications as determined by the court."15

The Court found that the facts of the Bates case fell within the third scenario because it was apparent that the child’s representative had based his recommendation at least in part on his own observations of visitation sessions between the father and child and during interviews of the father, mother and child. Thus, it was error for the trial court to deny the mother’s request to have the child’s representative testify and be subject to cross-examination. It found such error to be harmless, however, because the child representative’s recommendation apparently did not play a significant role in the trial court’s ruling and therefore did not affect the outcome. 16

The Court concluded that section 506(a) is constitutional and does not deny a party procedural due process because in its interpretation of the statute, a party can request disclosure by the child’s representative of the factual matters underlying his recommendation.17 If the child’s representative reveals that the recommendation was based on information from a third-party investigator or witness, a party has the right to cross-examine those third parties. If the child’s representative directly witnessed facts or circumstances that he relied on in his recommendation to the court, he shall be required to testify to those facts and circumstances and be subject to cross-examination.18

Without further explanation, the Court merely stated that it does not read the statute’s prohibition against calling the child’s representative as a witness to be inconsistent with its approach outlined in scenario three, above. The Court attempted to reconcile its conflicting interpretation with the statute’s plain language by concluding that "section 506(a) contemplates such a hybrid role for a child’s representative."19

Bates Holds Section 506(a)(3) Constitutional, But Is It?

The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature, which is best evidenced by the language of the statute.20 While the Bates Court asserted it resolved the issue of constitutionality under a plain reading of section 506, their analysis is flawed. In construing a statute, a court is not at liberty to depart from the plain language by reading into it exceptions, limitations, or conditions that the legislature did not specifically express. If the language of the statute is clear, the statute must be given effect without resort to other aids of construction.21 The Second District interpreted the language of section 506 that states "subject to the terms or specifications as the court determines" as allowing a child’s representative to testify when he or she, as a direct witness, makes observations which support his or her recommendation. This is directly contrary to the express terms of the statute and is overreaching.

The last full sentence of section 506(a)(3) unambiguously provides "the child’s representative shall not be called as a witness regarding the issues set forth in this subsection."22 This provision is mandatory and does not give the court discretion to allow the child’s representative to be cross examined. Instead of adding exceptions to section 506 that the legislature simply did not include, the courts should examine whether or not a prohibition against calling a child’s representative to testify violates the due process and equal protection clauses of the United States and Illinois Constitutions.

Substantive Due Process

The child’s representative evolved solely from an action of the legislature and, thus, is an action of the state. The Fourteenth Amendment of the United States Constitution and Article I, Section 2 of the Illinois Constitution both provide that the state shall not deprive a person of life, liberty or property without due process of law.23 This due process clause includes a substantive component that "provides heightened protection against government interference with certain fundamental rights and liberty interests."24 The interest of parents to make decisions concerning the care, custody and control of their children is perhaps one of the oldest fundamental liberty interests recognized by the United States Supreme Court.25

By its very nature, litigation concerning custody and visitation under the IMDMA can be so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child’s welfare becomes implicated.26 Section 506(a)(3) prohibits a parent from cross-examining a child’s representative, thereby denying a parent access to the underlying factual support of the child representative’s recommendation. The state’s action interferes with the parents’ fundamental liberty interest by prohibiting parents from fully exercising their right to make decisions concerning their children.

When challenged legislation impinges upon a fundamental constitutional right, the courts will apply a strict scrutiny standard.27 In order to withstand the strict scrutiny standard, the statute must serve a compelling state interest and be narrowly tailored to serve that interest. In other words, the legislature must use the least restrictive means to serve the compelling interest.28 It is undisputed that the state has a right and duty, as parens patriae, to legislate for the protection and welfare of children,29 but the state’s interest must be balanced against the right of a parent to custody of a child. Rights encompassed by the Fourteenth Amendment "may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect." 30

The public interest intended to be protected by section 506 was to remove the inherent conflict created by appointing the same individual to act as both an attorney for the child and a guardian ad litem. This inherent conflict cannot be deemed a compelling state interest, particularly because the child’s representative presents the same problem that it was supposed to cure. Furthermore, what is the compelling state interest in shielding individuals from providing a basis for their recommendation regarding children and their custody? An argument could be made, that based on the foregoing, the result of section 506(a)(3) is to unconstitutionally violate a parent’s right to substantive due process.

Procedural Due Process

A parent is undoubtedly denied procedural due process when the child’s representative is allowed to provide recommendations to the court, but not be subject to cross-examination. After having determined that a liberty interest is significantly burdened, the court must assess what procedures are required in order to provide fundamental fairness. The Fourteenth Amendment to the Constitution guarantees the right to meaningful access to the courts. In its most basic form, due process requires that a party be given reasonable notice and have the right to examine witnesses, to testify and to present witnesses. Cross-examination is required in order to ensure that due process requirements are met because it is the most efficacious test for the discovery of truth.31

The Illinois Supreme Court has held that despite the flexibility built into due process, "it is clear that certain minimal guarantees must always be provided . . . the opportunity to cross-examine witnesses and to inspect the evidence offered against the party have both been determined to be part of guaranteeing the exercise of due process . . ."32 Allowing a child’s representative to make recommendations to the court as to the child’s best interest, without cross-examination, allows the court to base its determination of custody and visitation on potentially unreliable representations. The cross-examination of the child’s representative would allow the parent to test perceptions and memory, as well as revealing possible biases, prejudices, partiality and a litany of relevant information. Judgments on such fundamental rights must be made using only the most reliable evidence. The state cannot have a compelling interest in anything less. Unless parents are allowed to call the child’s representative as a witness, their rights to procedural due process will continue to be unconstitutionally denied under section 506(a)(3).

Equal Protection

In addition to due process, parents’ rights to equal protection of the law is violated by the child’s representative statute. The guarantee of equal protection under the United States and Illinois constitutions are identical. The government is required to treat similarly situated individuals in a similar manner. The government cannot accord different treatments to persons who are placed by statute in different classes on the basis of criteria wholly unrelated to the purpose of the litigation. The legislature may, however, draw proper distinctions in legislation among different categories of people.33 The standard applied under the equal protection guarantee depends on the nature of the classification. As in due process, strict scrutiny would apply to classifications affecting fundamental rights.34

All parents entering into litigation involving custody and visitation under the IMDMA are similarly situated, but are quickly distinguished when the court appoints a representative for the child. The court may appoint an attorney for the child, a guardian ad litem or a child’s representative to advocate for the child. In cases where the court chooses to appoint a guardian ad litem, parents will have full rights of cross-examination, while parents in cases with a child’s representative will not. Although these cases involve the most fundamental rights of parents, the appointments are made at the court’s discretion with no guidelines, standards or procedures from the legislature to follow.

While the state has a compelling state interest in protecting minor children, it is not necessary for litigants in custody and visitation cases to receive disparate treatment. No basis exists for the court to hear unchallenged hearsay in some cases and to allow the truth finding process to take place in others.35 The continued viability of the guardian ad litem, who is subject to cross-examination, means that the elimination of the right to cross-examine a child’s representative is not necessary to serve the compelling state interest. By allowing the courts to arbitrarily appoint representatives for the children, the government is unnecessarily interfering with all parents’ rights to equality of access to the civil justice system. Under strict scrutiny, section 506(a)(3) is unconstitutional.

What Does Bates Mean for the Practitioner?

The contradictory and illogical reasoning used in Bates to justify the constitutionality of section 506(a)(3) has created an impossible situation that, in practice, will only create more confusion and controversy for the parties and attorneys involved in the case. The effect of the Bates decision is to bring the child’s representative statute full circle.

Prior to 2000, the courts could appoint one person as an attorney for the child and a guardian ad litem, even though both roles had contradictory powers and responsibilities. The child’s representative was created to resolve this conflict and was given the powers and privileges of both the attorney for the child and the guardian ad litem. In order to zealously advocate for the child, the child’s representative must base his or her recommendations to the court on all relevant information obtained, regardless if obtained through confidential client communications or through investigation. To be effective, the child’s representative must draw on all of his or her powers at all times throughout the entire case. In other words, the child’s representative cannot consider themselves just an attorney for the child or just a guardian ad litem because they are neither, they are a hybrid. However, the Bates Court in its analysis clearly makes a distinction between the various powers of the child’s representative when it interpreted three separate scenarios in which a child’s representative could advocate for the child. By separating the functions of the child’s representative into components based upon whether they are advocating in accordance with their attorney duties or based upon their investigative guardian ad litem powers, the Court is reverting back to having one person serve two separate roles. This is the exact conflict the legislature was attempting to resolve by enacting section 506(a)(3).

Further, the ruling that a child’s representative may be called as a witness when he advocates based upon his own observations as a direct witness is likely to cause a chilling effect on a child representative’s willingness to exercise his investigative powers and make direct observations of the parties and children involved in the case. If it were to take place, such a chilling effect would undermine the purpose of creating the child’s representative and adversely affect the quality of his recommendation concerning a child’s best interest.

While the Bates case interpreted section 506(a) to mean that a party may request the court to condition any recommendation by the child’s representative upon the disclosure of the factual sources underlying that recommendation, it provides no indication of how such disclosure is to be made. The Bates case merely provides that they may be called and questioned at trial "under the terms or specifications as determined by the court." It remains unclear whether the child representative’s disclosure should be made in writing to the court, in a deposition by the requesting party, by cross-examination, or some other means. It is also unclear whether a party has the right to cross-examine the child’s representative when he admits that he directly witnessed relevant facts and circumstances, but represents that he did not base his recommendation on those observations, relying instead on evidence at the trial and third-party information. It is arguable that a party should be permitted to test the child representative’s reliance, if any, on those observations by cross-examination.

Moreover, the ruling of Bates creates more disparity in custody and visitation cases. Not only will the courts continue to arbitrarily appoint different types of representatives for children, but now some courts may allow parties to cross examine the child’s representative while other courts may not.

On the same day the Bates decision was filed in the Second District, a trial court in Cook County found the child’s representative statute constitutional using a different, but equally unsatisfactory analysis as the Court in Bates. The trial court in In re Marriage of Groselak36 found section 506 constitutional on the grounds that the opposing party can present alternative, contradictory evidence that rebuts the child’s representative recommendation. Citing an Illinois Bar Journal article37 with approval, the Court held that the antidote to the denial of the right to cross-examine the child’s representative is to rebut his or her recommendation with contrary evidence. But this alternative can never be an adequate substitute for the inherent right to cross-examination. The opposing party must attempt to present evidence rebutting what he guesses is the factual basis for the child representative’s recommendation. Furthermore, the child representative’s recommendation to the court may be based on hearsay information that cannot be challenged; for example, if he speaks to the child’s mental health provider, who also cannot be cross-examined.38 As the courts rely heavily on these recommendations to make difficult decisions regarding children, the child’s representative becomes something of a "custody czar."39


The mother in Bates is appealing the Appellate Court’s decision to the Illinois Supreme Court. There are many who hope that the Supreme Court will take her appeal and that the Court is ready, willing and able to see the Child’s Representative statute for what it really is: unconstitutional.

1 750 ILCS 5/506 (West 2002). Although this article mainly deals with custody and visitation issues, section 506 also applies to cases involving support, education, parentage, property interest or general welfare of a minor or dependent child.

2 In re Marriage of Bates, 2003 WL 21652507 (Ill. App. 2nd Dist. Jul. 9, 2003).

3 Robert K. Downs & Hon. John. T. Phillips, Illinois State Bar Association Task Force on Attorneys for Minor Children ("ISBA Task Force Article"), Illinois St. Bar Assn. Fam. Law Sec. Newsltr. (Jun. 1999).

4 Cook County Child’s Representative Training Program Manual ("Training Program Manual"), sect. 2, p. 3. (Jan. 21, 2000).

5 See supra, n. 3.

6 See supra, n. 4.

7 See supra, n. 3.

8 750 ILCS 5/506(a)(3). Emphasis added.

9 The Illinois State Bar Association is currently in the process of rewriting the statute.

10 Bates, 2003 WL 21652507 at *4.

11 Id. at *4.

12 People ex rel. Sherman v. Cryns, 203 Ill.2d 264, 290, 786 N.E.2d 139 (2003).

13 Bates, 2003 WL 21652507 at *4.

14 750 ILCS 5/506(a).

15 Bates, 2003 WL 21652507 at *5.

16 Id. at *6.

17 Id. at *5.

18 In the First District, the trial court has made a ruling prohibiting any right of examination. Rather, a litigant has the right to present contrary evidence. The option of presenting contrary evidence does not satisfy due process and, therefore, there is a Petition for Leave to Appeal to the Appellate Court pending. In re the Marriage of Groselak, Honorable Marya Nega, Memorandum Opinion and Order (July 9, 2003).

19 Bates, 2003 WL 21652507 at *5. The Bates Court addressed the ethical problem raised by Rule 3.7 of the Code of Professional Conduct by holding that if the child’s representative is called upon to testify, the court may appoint an additional attorney to represent the child under section 506(a)(3) on that limited basis, thus avoiding any conflict with Rule 3.7.

20 Lulay v. Lulay, 193 Ill.2d 455, 466, 739 N.E.2d 521, 527 (2000).

21 Lulay, 193 Ill.2d at 466, 739 N.E.2d at 527.

22 750 ILCS 506(a)(3). Emphasis added.

23 U.S. Const. amend. XIV; Ill.Const. art. I, § 2.

24 Troxel v. Granville, 530 U.S. 57, 64, 120 S.Ct. 2054, 2060 (2000), quoting Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258 (1997).

25 Troxel, 530 U.S. at 65, 120 S.Ct. at 2060.

26 Id. at 75, 120 S.Ct. at 2065.

27 Lulay, 193 Ill.2d at 470, 739 N.E.2d at 529.

28 Id. at 470, 739 N.E.2d at 529.

29 Regenold v. Baby Fold, Inc., 68 Ill.2d 419, 437, 369 N.E.2d 858, 866 (1977).

30 Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S.Ct. 625 (1923).

31 Balmoral Racing Club, Inc. v. Illinois Racing Board, 151 Ill.2d 367, 603 N.E.2d 489 (1992).

32 Id. at 408, 603 N.E.2d at 506.

33 In re R.C., 195 Ill.2d 291, 198, 745 N.E.2d 1233, 1238 (2001).

34 In re the Estate of Hicks, 174 Ill.2d 433, 438, 675 N.E.2d 89 (1966).

35 Scott Colky, The Child Representative Statute is Unconstitutional, Illinois St. Bar Assn. Fam. Law Sec. Newsltr. at 3 (Dec. 2002).

36 In re Marriage of Groselak, Honorable Marya Nega, Memorandum Opinion and Order (July 9, 2003).

37 Carl Gilmore, Understanding the Illinois Child’s Representative Statute, 89 Ill. B.J. 458, 461 (2001).

38 See supra n. 35, at 2.

39 Id. at 3.

Deborah A. Carder is an associate with the firm of Schiller, DuCanto and Fleck. She concentrates her practice in the area of family law. She graduated from the University of Illinois, Urbana-Champaign in 1992 and received her J.D. from DePaul University College of Law in 1995.

Abigail M. Chiesa is also an associate with the firm of Schiller, DuCanto and Fleck and concentrates her practice in the area of family law. She received her B.A. with Honors from Southwestern University in 1990 and her J.D. from George Washington University Law School in 1993. Prior to joining Schiller, DuCanto and Fleck, she served in the U.S. Army JAG Corps where she practiced family law and tried numerous cases as a prosecutor and defense counsel.

The authors acknowledge the invaluable assistance provided by Sarane C. Seiwerth and Timothy M. Daw, partners with Schiller, DuCanto and Fleck, in researching and analyzing the issues raised by Bates.

DCBA Brief