In a custody case, what’s in a child’s best interest?

April 2, 2018

By Asssociate Attorney Stephanie Lieberman

In dealing with a child custody proceeding or divorce, parents may wonder when it is appropriate to appoint a guardian ad litem, child representative or an attorney for the child.  An appointment by the court is appropriate in instances where an agreement cannot be reached between the parents on issues ranging from significant decision making for the minor children, who will have primary residential custody of the minor children and who will have a set parenting time schedule and when. 

There is a distinction to be made in appointing a guardian ad litem, a child representative or an attorney for the child.  First, statutory factors govern making said determinations for what is in the best interest of the minor child.  In the event of a guardian ad litem being appointed, he or she will ascertain what is in the best interest of the child.  Initially, he or she will talk to individuals who know the home life of both parents, other family members living in the home and the child.  Then he or she will conduct a home study to aid in deciding where it’s best for the child to reside. After conducting the home study, he or she will present the findings of the home study to the court as a report, stating which parent’s residence he or she believes would be in the best interest of the child to reside.  The guardian ad litem may be called as a witness for purposes of cross-examination regarding the guardian ad litem's report or recommendations. 

An attorney for the child differs from a guardian ad litem in so far as he or she plays the same role as an attorney that is retained by each parent in advocating for themselves in the custody or divorce proceeding.  A child’s attorney is typically appointed in a custody or divorce case for an older child who is more capable of understanding what is happening in the court proceeding and can express their own wishes and desires.  The role of the attorney for the child is to express the child’s wishes and desires. 

Finally, a child representative is a hybrid of a guardian ad litem and an attorney for a child.  The child representative can conduct home studies just like the guardian ad litem and are able to advocate for what is in the child’s best interest.  He or she is not expressing what the child wishes and desires for the outcome of the custody proceeding or divorce to be as the child’s attorney does. Unlike a guardian ad litem, the child representative cannot be called as a witness to testify in the proceedings. 

In a child custody proceeding or divorce, it is by far best to reach an amicable decision regarding who will make the decisions for the minor child and where the minor child resides as opposed to initiating court involvement if at all possible.  If court involvement can not be avoided then these outlined factors can help parents ascertain what is best for their case whether it be a guardian ad litem, child representative or attorney for the child.  "Child custody matters can be highly sensitive and delicate matters and as such, it is important to leave it up to the experts," says Joseph Coli, Partner at Illinois Advocates.

Illinois Advocates
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