ARTICLES

Child’s Wishes

One of the questions we are most frequently asked is "how old must my child be before he can choose... can't my child choose where he'll live?" The simple answer is: 18. Our society doesn't let kids make decisions of that magnitude. Parents make the decisions and if divorcing (or already divorced) parents can't agree, a court will make the decision for them.

Children (of any age), however, can be heard and their wishes can carry great weight in a custody case. Childrens’ stated preferences often sway judges in custody cases. The child’s wishes, however, cannot override the judge’s requirement to make an award serving the child’s best interest after considering all of the other statutory factors.¹

Parents may, in rare circumstances, testify about their children's preferences.² It happens only very infrequently. Courts prefer, instead, to get that testimony in other ways. In some cases it may be appropriate to bring in an outside expert³-a child psychiatrist, for example-to conduct a study and interview and evaluate all of the involved parties (mother, father, possible step-parents, other relatives, important care providers, baby-sitters, doctors, teachers and even the child).

In some cases the child may have an attorney appointed by the court to lobby on behalf of the child. These attorneys may be charged with different tasks and have different powers depending on the title they are given by the court in its order of appointment. In short, they may serve as either an "attorney for the child," a guardian ad litem (G.A.L.), or a child's representative.⁴

Appointing an attorney for the child (or a G.A.L or child's representative) is not required. Indeed, one Illinois appellate court has said: "In most cases the child's interests are adequately protected by one or the other parent, or by the court, and it is difficult to see how the presence of another lawyer could improve the process enough to be worth the cost."⁵ Nevertheless, some judges prefer to have the additional input ("when in doubt . . .") and routinely appoint attorneys for the child, G.A.L.s, and child's representatives. Other judges prefer to get the additional input from other experts-child psychiatrists and the like. Other judges prefer to leave well enough alone and rule on the evidence adduced by the parties. You should work with an attorney familiar with the judges in your jurisdiction to know the likelihood of how your judge will rule on this issue-it could make a huge difference in the outcome of your case. Talk with our experienced and knowledgeable attorneys to learn more.

You should work with an experienced attorney who is familiar with the restrictions placed on the various types of representatives; the determination can make a huge difference depending on the facts and posture of your case. The ways by which a child's desires may be made known to the court include:

Attorney for the Child: This individual is an attorney, usually with substantial family law experience (Cook County requires a minimum of five years experience and several hours of annual "continuing education credits at seminars offered by the Chief Judge of the Domestic Relations Division"). Like any attorney, an attorney for the child must act with diligence and competence and must safeguard all confidential communications and conduct reasonable investigation. The attorney for the child may conduct discovery (depositions and interrogatories) and possesses power of subpoena. The attorney for the child may cross examine witnesses in court and may call witnesses.

The attorney for the child functions just like an attorney for one of the parents. The attorney is an advocate for the child. The attorney is directed⁶ to weigh the child's age, intelligence, maturity, comprehension and communication skills (and other factors) in determining the extent to which the child is permitted to guide the attorney's efforts. An attorney for the child can be called to testify only in rare circumstances and, even then, all communications between the attorney and the child are privileged and cannot be testified to. Likewise, the attorney's notes and other work product are protected from discovery and disclosure by the work-product doctrine.

An attorney for the child presupposes that the child can have meaningful, informed, communication with the attorney and that the child is capable of making intelligent, mature, decisions. An attorney for the child is still an attorney and his job is to be an advocate. If the child cannot articulate a preference in custody or other matters, there is nothing for the lawyer to advocate. The lawyer needs direction from the client; that is, from the child.

Guardian ad Litem: A Guardian ad litem is an attorney whose directive is to advocate for the best interests of the child. A G.A.L. is not bound by the child's wishes-as would be an attorney for the child (assuming a competent child). A G.A.L. is not an attorney for either party and may not advocate on behalf of either parent. The G.A.L.'s sole purpose is to advocate for the best interest of the child. It has been said that the G.A.L. "is the eyes and ears of the court."⁷ G.A.L.s investigate and make recommendations to the court. What specific issues are to be investigated and recommended are supposed to be determined by the court order appointing the G.A.L. G.A.L.s have subpoena power and may take depositions and propound interrogatories as part of "discovery." They may call witnesses to the stand at trial and may cross examine all witnesses. They may submit evidence and briefs to the court.

Because they are required to make recommendations, G.A.L.s themselves can be called to the witness stand and cross examined. The G.A.L. serves as a sort of expert for the court. Once the G.A.L.'s recommendation is made, it is an almost universal rule that the parties call the G.A.L. to the stand for cross examination.

Child Representative: Child representatives are hybrids of the attorney for the child and the G.A.L roles. Child representatives may investigate and recommend like G.A.L.s. They are not bound by the wishes of the child as is an attorney for the child. A child's representative, however, must consider the child's wishes -- unlike a G.A.L.⁸ Child representatives are largely immune from being called to testify⁹ and their communications with the child are protected from discovery and disclosure. That's right: a child's representative may make a recommendation to the judge regarding the final custody award -- and the child's representative may not be called to the stand or cross-examined about how he arrived at his recommendation. Worse, all of the child representative's work product is privileged. He could have obtained his recommendation based on reading tea leaves, but no one will ever know because there is no right to cross examine the child’s representative.

There are ways to attack a child representative's recommendation.¹⁰ In October, 2004 the Illinois Supreme Court held that the child representative statute was unconstitutional as applied to the facts of a specific case.¹¹ Contact our informed and experienced attorneys to learn more.

Child's Direct Testimony: In other cases, Illinois law permits children to talk with the judge directly¹² to share their thoughts on where they would like to live. The child, the judge, and a court reporter go into the judge's chambers-the parents usually stay out in the courtroom.¹³ The parents may sit in on the interview,¹⁴ but this is usually not the practice. The attorneys may be present or they may wait in the courtroom.¹⁵ The child must be old enough to be able to intelligently express a preference.¹⁶ The testimony of 14 year old children has successfully swayed cases.¹⁷ Similarly, courts have given much weight to the custodial preference of a "relatively mature" eight year old¹⁸ and one court's decision that went against a nine year old's request was reversed on appeal. On the other hand, judges have refused to try to talk with children as young as two years old.¹⁹ The court is not required to interview the children. Parents do not have a right to have the children interviewed. Whether or not to conduct such an interview and what to ask and talk about is within the judge's discretion.²⁰ If your judge decides not to listen to the child's wishes (this almost never happens in custody cases) that's all there is to it, short of an appeal after the case. The attorneys usually submit written, suggested questions or topics. The judge is not limited to only asking the child "which parent would you prefer were your custodian?" Judges usually have a discussion with the child and make a determination based on the child's answers to other general questions about school, friends, hobbies, health, his or her personality, and other circumstances.²¹

Finally, in some cases–if you can believe this–children may be called as witnesses: they can be put on the witness stand and examined and cross-examined all under the threat of prosecution for perjury.²² Imagine it: the child sits on the witness stand with Mom and Dad sitting at their respective counsel tables and maybe other relatives in the courtroom-and has to state for the record a preference of which parent should be his or her custodian. As one court said: "To have a child face such an array of belligerence and state on which side his preference lies is inhuman ... . "²³ In most cases, a child's representative or an in camera interview will be more than adequate.

Don't let your attorney-or your spouse's attorney-talk with the children. Parents themselves should do all they can to minimize the children's knowledge of, or involvement in, the divorce. The kids should be protected from the court case. Our attorneys have seen many cases where other attorneys have actually interviewed the children and discussed with them how their testimony would affect the case. Experienced family law attorneys know better. Seek an injunction, if necessary, to protect the children from unscrupulous behavior by your spouse or the other attorney. Work with our experienced and seasoned attorneys and use the methods approved by the court to educate the judge about the children's wishes.