Divorce is a difficult experience. It can be made more difficult when minor children are involved. If the divorcing parents can not work out the details of child custody and visitation, child custody litigation is the only way to a resolution.
It is important for everyone to understand the players in child custody litigation. Both parents, their attorneys and the court (the Judge) are involved, but there is more. The Illinois Marriage and Dissolution of Marriage Act (IMDMA) provides for additional input from three possible sources – a child custody evaluator, a guardian ad litem and an attorney representative for the children. Judges are not experts in child psychology, and judges in the American court system cannot and do not become actively involved in matters that are being litigated before them. These additional professionals become the eyes and the ears of the court and aid the Judge in making a custody determination.
As a side note, when it comes to child custody and visitation, the best interest of the child (not the parent) is the standard. Parents are presumed to know the best interests of the children. When parents are pitted against each other in a child custody dispute it is difficult to determine what is best. 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.
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, the children, the family dynamics and render an opinion based upon recognized standards in psychology. This aids the court in determining the custody and visitation terms that are in the best interest of the children.
A guardian ad litem (GAL) 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 is usually an attorney who has been specifically trained to be a GAL, but the GAL does not represent anyone in the custody dispute. The GAL typically interviews the parents and the children and provides additional input from a neutral and objective standpoint that will aid the court in making a custody determination that focuses on the best interests of the children.
Finally, an attorney representative is an attorney for the child(ren) who advocates for the child(ren). The attorney representative allows the child to have a voice in the custody dispute.
In the collar counties of Chicago, where the Drendel & Jansons Law Group practices, guardians ad litem are appointed in nearly every custody case. Child custody evaluators are also commonly appointed in child custody litigation. Attorney representatives for children, on the other hand, are rarely appointed.
The voice of the children, though 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. In many families children might prefer the lenient, permissive parent over the stricter, less permissive parent. That is not necessarily in the child’s best interest.
It is important to understand that the “players” in child custody litigation are entitled to be paid. Both parties must retain and pay their own attorneys. 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 to provide an alternative or a confirming expert opinion to the custody evaluator. 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 provides a clearer understanding of the process, who is involved in the process and what the aim of the process is – which is to allow the court to make a determination as best as can be made to protect the best interests of the parents. At the end, one parent will become the sole custodian, and one parent will have visitation on terms that are determined by the court.
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