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The Child Representative statute is
unconstitutional
By Scott
Colky
The
members of the Special Subcommittee of the Illinois State Bar Association who
wrote and lobbied for the "Child's Representative" statute were
well-intentioned, hardworking attorneys and judges who cared deeply for
children. The statute has had a positive impact on attorneys who represent
children by requiring mandatory education and training.
The goal
of the Subcommittee was to create a Guardian ad Litem who could investigate the
child's situation and report to the court regarding their conclusions. In
addition, they wanted the same individual to be able to subpoena witnesses, call
witnesses at trial and advocate what the Child's Representative believed was in
the child's best interest. In light of the fact the Child's Representative would
have the powers of both the Guardian ad Litem and the Attorney for the Child, a
prohibition against cross-examining the Child's Representative was included in
the statute.
Prior
practice
Prior to
the enactment of the Child Representative statute, the court could appoint
either a Guardian ad Litem or an Attorney for the Child. When an attorney was
appointed to represent young children, the appointment was usually as a Guardian
ad Litem (GAL). The GAL would interview the children and advocate what that
attorney believed was in the children's best interest. However, in situations
where the children were older and voiced strong preferences, the appointment was
usually as an Attorney for the Child (AFC). The AFC was bound by his traditional
role of advocating his client's wishes even if the attorney believed those
preferences were not in the children's best interests. In those cases, the AFC
would request that the court appoint a GAL to investigate the situation and to
report what she felt was in the child's best interest. This created a problem.
The court had to appoint two attorneys to do the job now performed by the
Child's Representative, thereby increasing the cost of the litigation.
Prior to
the enactment of the Child's Representative statute, the ethical requirements of
an attorney appointed to represent children were easily defined. The AFC had a
fiduciary relationship to her client and functioned in the traditional role of
an attorney. The GAL, however, stood in the shoes of the children and was a
party to the litigation. In re the Parentage of Ryan Griesmeyer, 302
Ill.App.3d 905, 707 N. E. 2d 72 (1st Dist. 1998). The guardian
investigated, created a report for the court and was subject to
cross-examination. In re the Marriage of Karonis, 296 Ill.App.3d 86, 693
N.E.2d 1282 (2nd Dist. 1998).
Current
statute
Section
506 of the Illinois Marriage and Dissolution of Marriage Act defines the role of
a Child's Representative, stating that..."[t]he 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 be called as a witness regarding
the issues set forth in this subsection." 750 ILCS 5/506.
Custody
czar?
A Child's
Representative owes a duty to whom? Certainly not the child, because it is the
Child's Representative's sole discretion to determine what they believe is in
the child's best interest and to advocate that position. If the position she
takes is not in the child's best interest, where is the accountability? The
statute gives the Child's Representative unfettered discretion to determine best
interest. And, by virtue of their appointment, the Child's Representative has
enormous credibility and influence with the court, who is relying on this
individual to be the court's eyes and ears. The Child's Representative's most
dangerous tool is that he or she is able to convey hearsay information to the
court.
Hearsay
information does not usually come into evidence as it is considered unreliable.
The basis of the unreliability is that the declarant cannot be cross-examined.
Entire statutes have been created such as "The Dead Man's Act" to prevent
hearsay from coming into evidence. While there is an established body of law
regarding exceptions to the hearsay rule, the most important factor in those
exceptions is the reliability of the statement.
Courts
have traditionally required that doctors, psychologists, and witnesses come to
court and testify, so that the truth finding process, highlighted by
cross-examination, could take place. Only in the situation where an expert
testifies that they relied on hearsay information does that hearsay information
come into evidence. However, the information is admitted not for the truth of
what the expert was told by the declarant, but to serve as the basis of what the
expert relied on in forming that opinion, Wilson v. Clark, 84 Ill.2d 186,
417 N.E.2d 322 (1981). Further, those hearsay sources could then be called as
witnesses and other evidence attacking what the expert relied on could be
introduced at trial.
This is
not the case with our "custody czar." For example, the Child's Representative
has the ability to speak to mental health treaters who have a confidential
relationship with the children. The Child's Representative is able to
incorporate that information into their recommendation and reports to the court.
Since neither the Child's Representative nor the mental health treater can be
cross-examined, the court receives hearsay information that cannot be
challenged.
The
child's representative statute is unconstitutional
The
Supreme Court of Illinois in Lulay v. Lulay, 193 Ill.2d 455, 739 N.E.2d
521 (2000) held that grandparent's visitation was unconstitutional because
parents have a fundamental liberty interest in the care, custody and control of
their children. The Illinois Supreme Court reiterated this position two years
later in Schweigert v. Schweigert, 201 Ill.2d 42, 772 N.E.2d 229 (2002).
Because
raising children is considered a fundamental liberty interest, it receives
heightened protection under the due process clauses of both the State and
Federal constitutions. Article 1, section 2 of the Illinois Constitution
provides that "no person shall be deprived of life, liberty or property without
due process of law nor be denied equal protection of the laws." See In re M.H,
et al., 196 Ill.2d 356, 751 N.E.2d 1134 (2001); In the Interest of J.B.
and T.B., 328 Ill.App.3d 175, 765 N.E.2d 1093, (1st Dist. 2002);
and Lulay v. Lulay, 193 Ill.2d 455, 739 N.E.2d 51 (2000). Due process in
its most basic form requires that a litigant have the right to appear and
present evidence. The litigant also has the right to cross-examine witnesses.
It is a
well-established principle that a public hearing before any tribunal or public
body means the right to appear and give evidence and also the right to hear and
examine the witnesses whose testimony is presented by opposing parties. See
E. and E. Hauling v.
County of
DuPage,
77 Ill.App.3d 1017, 396 N.E.2d 1260 (2nd Dist. 1979) and People
ex. rel. Robert J. Klaeren II v.
Village of
Lisle,
316 Ill.App.3d 770, 737 N.E.2d 1099 (2nd Dist. 2000).
The
Juvenile Court Act recognizes that issues involving loss of custody entitle
parents to the right to cross-examination:
"Due
process is not a technical concept unrelated to time, place, and circumstances;
rather, it is flexible and calls for such procedural protections as a particular
situation demands. Procedural aspects of due process require that a person be
given notice and an opportunity to be heard and to defend in an orderly
proceeding adapted to the case. Due process is not denied when a party fails to
avail himself of the opportunity to be heard after it is offered to him.
[citation omitted] While section 1-20 of the Juvenile Court Act (Ill.Rev.Stat.
1981, ch 37, par 701-20(1)) entitles respondents to certain rights including the
right to be present [and represented by counsel] and to cross-examine witnesses,
the proceedings are not intended to be adversary in character. The primary
concern is the best interests and welfare of the child." [citation omitted].
In re D.L., Jr., 226 Ill.App.3d 177, 589 N.E.2d 680 (1st Dist.
1992).
Even
cases involving child support arrearages recognize the right to cross
examination:
"The
rights to cross-examine and to present evidence are so basic as to be grounded
in due process. Collectively, they constitute the litigant's day in court.
Illinois Constitution, Art II, §2; [cites omitted] Defendant's citations to the
effect that the scope and extent of cross-examination are matters for the trial
court's discretion do, of course, express sound principles of law but are not
applicable to a situation of complete denial. We conclude that the procedure
followed in the instant case effectively denied the plaintiff her day in court,
and the resulting order must therefore be reversed and remanded for a proper
hearing." In re the Marriage of Jamal, 98 Ill.App.2d 180, 240 N.E.2d 246
(1st Dist. 1968).
Based on
the foregoing, 750 ILCS 5/506 violates procedural due process by creating an
individual who can report evidence to the court and not be subject to cross
examination. As a result, litigants are denied due process and "their day in
court."
Unfortunately, courts have become comfortable relying on the "custody czar" to
help them make very difficult decisions regarding children. However, the statute
is so fundamentally flawed that it not only violates due process, but equal
protection as well.
Equal
protection
The
protection provided by the equal protection clauses in the Constitutions of the
United States and Illinois is identical. The government is required to treat
similarly situated individuals in a similar manner. The government, therefore,
may not treat different classes of persons on the basis of criteria wholly
unrelated to the purpose of legislation. In re R.C., 195 Ill.2d 291, 745
N.E.2d 1233 (2001).
Under the
equal protection clause, courts are required to treat similarly situated
individuals in a similar manner. Nonetheless, parents who are going through
custody, removal, visitation and parentage cases are all treated differently
depending on whether the court appoints a GAL, AFC or a Child's Representative
for the children.
Under 750
ILCS 5/506, the decision as to the type of child's advocate is completely left
up to the court's discretion. There is no criteria or guidance given to the
court to help them determine which type of child's advocate should be appointed.
Therefore, although individual litigants may be similarly situated, they may
have the right to cross-examination if a GAL is appointed but will not have the
right to cross-examination if a Child's Representative is appointed.
Courts
apply strict scrutiny to classifications affecting fundamental rights. In re
A.A., 181 Ill.2d 32, 690 N.E.2d 980 (1998). "To survive strict scrutiny in
the equal protection context, as in due process analysis, the means employed by
the Legislature must be necessary to advance a compelling state interest, and
the statute must be narrowly tailored to the attainment of the legislative
goal." [cite omitted] In re R.C., 195 Ill.2d 291, 745 N.E.2d 1233 (2001).
There is
no compelling reason why litigants in custody cases should receive such
disparate treatment. No rational basis exists for the court to hear unchallenged
hearsay in some cases, and to allow the truth finding process to take place in
others.
It is
understandable that judges want to receive as much information as is available
in cases involving children. These are tough cases and the consequences are
great. However, in the Legislature's desire to protect children, it has enacted
a statute that rejects concepts of basic fundamental fairness and has replaced
these concepts with a "custody czar." | 
