Child’s representative statute declared unconstitutional

Child’s representative statute declared unconstitutional

On October 28, 2004 the Illinois Supreme Court issued an important decision which affects the procedure in which Illinois trial courts must handle allocation of parental responsibilities disputes. There is an often used section in the Illinois Marriage and Dissolution of Marriage Act which allows judges presiding over allocation of parental responsibilities disputes to appoint a child’s representative. A child’s representative is chosen by a trial judge from a list of attorneys with whom the judge is familiar that has had experience in child advocacy matters. The duty of the child’s representative is to make an independent determination as to which parent should receive custody of a minor child at the conclusion of a allocation of parental responsibilities case. Trial judges have typically given substantial weight to the opinions and recommendations of the child’s representative, because this individual has no duty to advocate for the mother and no duty to advocate for the father, but simply a duty to make recommendations as to what the child’s representative believes is in the best interests of the minor child.

child holding justice weightsIn the Illinois Supreme Court divorce case between Norma Perez De Bates and Edward Bates, the parties were divorced on July 14, 2000, and were awarded allocation of parental responsibilities of their only minor child. The primary custodial residence of the minor child was given to mother, subject to father’s parenting time rights. Eight months later, the parties were back in court fighting over parenting time and custody. During the custody dispute, the trial judge appointed a child’s representative who was asked to represent the best interests of the minor child, and make custody and parenting time recommendations to the trial judge as to what the child’s representative believed was in the best interests of the minor child.

After a lengthy and bitter allocation of parental responsibilities dispute, the matter proceeded to trial on February 26, 2002, less than two years after the parties were initially divorced. The trial lasted for two months. During the trial, the child’s representative gave a report to the court indicating that custody of the minor child should be taken from mother and transferred to father. Ultimately after hearing all of the evidence in the two month trial, the trial judge agreed with the recommendations of the child’s representative, and took custody away from mother and granted allocation of parental responsibilities to father.

The case made it all the way to the Illinois Supreme Court which affirmed the trial court decision; however, a very important ruling was made by the Illinois Supreme Court on October 28, 2004. The statute which allows trial judges to appoint child’s representatives to represent minor children during allocation of parental responsibilities disputes is now unconstitutional. The reason is that the statute prohibited the attorney for either parent from calling the child’s representative as a witness to be cross-examined during the trial. The Illinois Supreme Court has found this prohibition in the statute to be an unconstitutional deprivation of a parent’s fundamental right to cross-examination of an adverse witness. Indeed, the Illinois Supreme Court stated, among many other things, that the child’s representative, like any other witness “is not immune from error in observation and from inadvertent bias.” Accordingly, until the Illinois Legislature fixes this statute, trial judges will have to rely on other independent methods in helping make its determination of what is in the best interests of a minor child during custody disputes.

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