The Players in a Child Custody Dispute

Anyone facing the prospect of divorce with minor children involved should understand the landscape before venturing forth. Unless divorcing parents can work out the details of child custody and visitation together amicably by agreement, child custody litigation is the only way to a resolution. Child custody litigation involves more people than you might realize. Following is the line up of the potential players in a child custody dispute.

Obviously, both parents, their attorneys are involved, along with the court (the Judge), but there is more. When it comes to child custody and visitation, the best interest of the child is the standard the court is required to consider (not the best interest of the parent). Parents are presumed to know the best interests of the children except when parent is pitted against parent in a child custody dispute. In that case, a judge needs a more neutral, objective analysis than what either parent or their attorneys who are advocating for them can provide.

Judges are not experts in child psychology, and judges in the American system of jurisprudence cannot and do not become actively involved in matters that are being litigated before them. Therefore, they must turn to other parties to provide what is hoped to be objective and professional input in determining the custody and visitation terms that are in the best interests of the children. The Illinois Marriage and Dissolution of Marriage Act (IMDMA) provides the court various options for obtaining input on the best interests of the children.

The additional players in child custody litigation include a child custody evaluator, a guardian ad litem and an attorney representative for the children. The IMDMA also authorizes the retention of other “professional personnel” generally to provide advice for the court. These additional people are intended to become the eyes and the ears of the court from the perspective of the best interests of the children. Each of these people have different roles to play.

A child custody evaluator is a person appointed by the court at either party’s request or on the court’s own initiative to provide a written, professional evaluation. Although the IMDMA does not require it, child custody evaluators are usually mental health professionals. The child custody evaluator is required to evaluate both parents and the children and to analyze the family dynamics in order to provide a written report to the Court. The analysis and assessment is to be based upon recognized standards in psychology that will aid the court in determining the custody and visitation terms that are in the best interest of the children.

A guardian ad litem is a person appointed by the court to represent the best interests of the children. The term, “guardian ad litem” means guardian for the case. A guardian ad litem (GAL) is usually an attorney who has been specifically trained. The GAL does not represent or advocate for anyone in the custody dispute. the sole focus of the GAL is to make a recommendation on what is in the best interests of the children. The GAL typically interviews the parents and the children and provides a written report to the Judge of the observations with a recommendation that custody be given to one or the other of the parents.

An attorney representative is an attorney for the child(ren). An attorney representative of the child(ren) is intended to be an advocate for the position of the children (like the attorneys for each parent). The attorney representative is not necessarily required to consider the best interests of the children; rather, the attorney representative is the advocate for what the children want.

In the collar counties of Chicago, the area in which the Drendel & Jansons Law Group practices, guardians ad litem are appointed in nearly every case in which custody is disputed. Child custody evaluators are also commonly appointed in child custody litigation if requested by either party or in more difficult cases when the judge determines that professional assessment is necessary. Attorney representatives for children, on the other hand, are rarely appointed; and other “professional personnel” are not commonly involved.

The voice of the children, though a factor to be considered, is not a primary factor. Children do not necessarily know what is in their own best interests. The law presumes the maximum involvement of both parents is in a child’s best interest, even if a child might choose one parent over the other parent. In many dysfunctional families (indeed sometimes in relatively functional families), children might prefer the lenient, permissive parent over the stricter, less permissive parent; but that is not necessarily in the child’s best interest.

It is important to understand that all of the “players” in child custody litigation are entitled to be paid. The parties must each retain and pay their own attorneys (with some exceptions). Beyond that, both parties are expected to pay the court appointed custody evaluator and the GAL. Parents involved in custody litigation will often retain their own experts, if they can afford them, to provide an alternative or a confirming expert opinion to the custody evaluator and GAL recommendation. For these reasons, divorce proceedings that involve custody disputes can be extremely expensive.

Before taking the plunge into a child custody dispute, it is important to consider what and who is involved. Lining up the players and potential players provides a clearer understanding of the process and who is involved in the process. The aim of the process is to provide the court with sufficient information and assessment that will aid the Judge in making a determination, as best as can be made, to protect the best interests of the children. At the end, one parent will become the sole custodian, and one parent will have visitation on terms that are determined by the court.

Mark D. Brent