Why do you need an attorney for your children? Beermann Divorce and Family Law Partners, Beth F. McCormack and Kathryn Homburger Mickelson, go in-depth on the three roles for attorneys when appointed for children. The lawyers at Beermann Law has built a reputation within the legal community for achieving excellent results in a professional, discrete, and high integrity manner. As Beth and Katy share the do’s and don’ts in dealing with child attorneys, learn the best way to work with them in a domestic relations case.
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Various Roles For Attorneys When Appointed For Children
Our CMO, Sandra Napoli-D’Arco, asks questions that get the attorneys talking about everything they know and have experienced throughout their years of being divorce lawyers.
I’m with Beth McCormack and Katy Mickelson, divorce and family law partners at Beermann. We’re speaking about the various roles for attorneys appointed for children and how best to work with them in a domestic relations case. Before we get started, I like to turn it over to Beth and Katy for them to share a little bit more about themselves.
Beth: I am a family law partner here at Beermann and in that role, I often act as an attorney for the parties, the man and the woman but I also fill a role as a child representative or GAL, which we’ll talk to more. I’ve practiced for 28 years and throughout those years of practice, I’ve gained a lot of wisdom by the practice of law. It’s a pleasure to be here with Katy where we can help everyone better understand these roles.
Katy: I work with Beth on many of my cases and I take on a little bit of a different role. I do more litigation and also attorney-assisted mediation. I represent both parties, men and women, either side. I really try to find solutions that fit for my clients. Whether that’d be in mediation or whether that’d be in litigation, I too am a partner here and I’ve spent my entire career at Beermann. This is what I do day in and day out. I’m happy to be here.
Beth, why don’t we get started and let’s give everyone an idea of why someone may need to appoint an attorney for their child?You can't put the toothpaste back in the tube. Once the damage is done, you come across a certain way. Click To Tweet
Beth: If a couple is unable to figure out their conflict in an ADR setting, which is alternative dispute resolution, they have to go to court and the court has to make a decision. The court very rarely speaks to children directly. A lot of times the role of an attorney for the child or a GAL or a child’s representative is to be the eyes and the ears of the court. We’re going to spend a little bit of time distinguishing those roles and helping everyone to try to better understand each. Katy and I were talking prior to our start that many lawyers don’t know the difference. Some judges don’t know the difference. It’s an important distinction with big differences. The idea is that the parents couldn’t figure out the solution so they have another person come in only for the children, not for mom, not for dad, just for the kids to weigh in in various ways and helping them solve the conflict.
Katy, what are the different attorneys that a child may have in a case?
Katy: We’re very much driven by our statutes. Our statute, the Illinois Marriage Dissolution of Marriage Act, has a section where it delineates between the three roles. The court is supposed to identify an attorney for the child in its correct role based upon what needs to be done. There are three roles that can be assigned by a judge. One is an attorney for the child, two is a guardian ad litem and three is a child representative. The most uncommon is the attorney for the child. That really is reserved for an older child and a child who essentially needs to have an attorney-client relationship with an attorney but is not yet old enough and is not a party to the case. A child has a similar relationship that we have with our clients. The relationship is confidential. It’s protected by privilege and that individual acts in the same role as we do when we represent parties and conveying a position on behalf of the child because they aren’t going into court and speaking to the judge directly.
Beth: The big difference in that rule is that it’s pretty unique. As an attorney for the child, I have to argue what they want. I’m not looking at their best interests but as an attorney for the child, I have to advocate what they want. We’ve had cases where I’m an attorney for the child and there’s a GAL for the child where that are two different people filling two very different roles. We don’t want to get bogged down in this because it’s unique but it’s super important that we introduce the concept of best interests of the children and where that comes in. I love that you started with an attorney for the child because it’s the rarest and we don’t want to spend too much time there.
Katy: The attorney for the child is one area. The more common areas are the guardian ad litem or a child representative. The roles are very different. The roles they play in court are very different and what they’re going to be doing is very different. Both are going to have the children as their clients. The difference is a guardian ad litem is more opening on the best interest of the child that they take on a role that’s almost like the court’s eyes and ears. What they’re doing is an investigation and they’re obligated pursuant to statute to prepare, report and be able to testify or at least submit that report to all the attorneys that are representing the parties. The guardian ad litem, because it’s the best interest standard and has this kind of overarching best interest view that they’re supposed to be taking, is more common with children that are younger, those who can’t enunciate on their own what specifically their feelings are. A guardian ad litem is not there as an attorney for the child, but really advocates and says what their client’s desire is. Not in the best interest standpoint, they’re looking and saying, “I’m going to determine what I believe based upon precedent experience, what would be in the best interest of the child and of the family.”
Beth: I have been GAL for an infant, a newborn. To make it clear as far as what information you take in from the actual children, which made me think it’s important for everyone to know when we are trained in this role the number one rule is you never put a child in the position of telling us what they want because inevitably the parents are going to posture and say what they think they want them to say. We are very careful never to do that no matter what our role is. It’s really important for anyone to make sure that they understand no professional who knows what they’re doing is ever going to ask a child, “Where do you want to live? How much time do you want with mom? How much time do you want with dad?” We get those answers in a roundabout way.
Katy: A good child representative or guardian ad litem can tell if a child has been coached. Generally, they’re not just attorneys. They’re individuals who’ve had a lot of experience with a lot of variety of children and parties. They can tell. I’ve often gotten questions of, “What if my spouse or soon to be ex-spouse is a real charmer? What if they’ve been able to charm the kids into saying that?” That is the importance of getting somebody who’s very experienced and who isn’t swayed by a child or by the other party to make a decision that’s not going to be the best of their interest.There’s a difference between “how often can I” and “how often should I.” Click To Tweet
Do I get to select what type of attorney and select it for my child? Do I interview them or are they appointed?
Beth: One of the things that we really try to help our clients see as we have a very specific way of designating this role and as an attorney for the adults, we are navigating that with our opposing counsel, trying to be very strategic in the right person. Everything from gender to location, who the judge is. There are many factors to consider. I had it thrust upon me as an attorney for a litigant where the judge says, “No, this is who we’re going to have. You don’t have discretion.” Most often though, judges want to hear from the lawyers, “Did you guys figure out who you think is the right fit?” The judge doesn’t know anything of the case at that stage very often or they certainly don’t know the nuances that we as practitioners know.
How does communication occur and are my conversations with my child’s attorney-privileged?
Katy: They’re not. You have to be careful. That’s why it’s important when you are represented by an attorney to be prepped by your own attorney in terms of being advised of that. Also, know that everything that you are saying, the other side could also know. You cannot use a guardian ad litem or a child rep. A child rep is the third type of attorney for a child. We need to tell our clients that nothing is privileged. That individual also is not the judge. To try and be posturing towards the child representative or a guardian ad litem, it’s really a pointless exercise. I do think that a well-trained guardian ad litem or child rep can see when a parent is posturing. They can see how an individual might be making things look better than they are or worse for the other side than they are.
Beth: Here at Beermann, we’re really sophisticated in our approach on how to prepare these clients for that. Sometimes because I represent adults and children, I’ll come into a meeting with anyone in the firm and prep the client for that. Prep the client for what you’re looking for as neutral. Try to determine what’s in the child’s best interest. For example, most trained professionals can see through BS. You have to help that client understand those nuances. I love that you brought up the slick parent. Inevitably you have a man who comes in and says, “My wife’s going to come across this way. That’s not who she is. At home, she’s A, B, and C but in here, I know how she’s going to talk. I know she’s going to tell you.”
As the person taking it in, you’re listening to everybody, a good person, whoever’s in this role is not ever going to let anyone know which way they’re going at that stage similar to a judge, but it’s important for anyone. If your lawyer has not prepped you before a meeting with anyone in this role, ask for that prep because how many times that we had situations where you can’t put the toothpaste back in the tube once the damage is done. You come across a certain way, which one of the concerns is looking prepared, overprepared. You need to be genuine in the face of all of it. I feel like we have to go back to the role of the child’s rep.
Katy: Really briefly, a child representative is the third type of individual that can be representing your child. A child representative is obviously not going to be doing the best interest. They’re more listening to a child but they’re advocating more so for a child. While no guardian ad litem should be taking advice from a child, it becomes more important as the child gets older. What their desires and wishes are more important but they’re an attorney. Unlike a guardian ad litem who might be put on almost as a quasi-party examined at trial or prepare, might testify about their role, a child representative is different. That individual participates in the litigation. A child representative can sometimes be even a guardian ad litem, somewhat of a mediator. I know what your favorite expression is, it’s a mediator with teeth. It’s one of those situations because they’re so intimately connected with the child and that could be the role ultimately that they need to take, it’s to be able to sit and be the intermediary but have a little bit more influence.
Beth: If they don’t arrive at a decision between themselves, that child’s representative will be telling the court what he or she thinks. I like to say building on what you said, the child’s rep is the hybrid. You are looking at the best interests while looking at advocating for the child, trying to find that spot right in between. It’s a super challenging role because you are a lawyer. People forget that as a lawyer, I get to file documents on behalf of my clients. Sometimes anecdotes are helpful. I represented a little guy whose hair was down to here and it seems a little like, “Wanda needed his haircut.” That’s how granular some of these cases can get answers. A good child representative doesn’t take that lightly. You don’t run into court on everything, but it’s important for everyone to know that role can go to court and deal with some of those details that you might not think about.A child representative is a mediator with teeth. Click To Tweet
How often will I be able to communicate with my child’s attorney?
Katy: You’re always able to. There’s a difference between how often can I and how often should I. Us as attorneys, we need to school our clients on what’s appropriate contact with a child rep or guardian ad litem because as Beth alluded to, you don’t want to overwhelm a child rep or guardian ad litem and you also want to bring them in your corner. You’re wanting to build a relationship where you are providing the information where requested, providing relevant information but not changing the impression of you due to over providing information. What I like to do is I like to talk to my clients and say, “Before you’re going to reach out to the child rep, before you’re going to reach out to the guardian ad litem, let’s talk about it.”
A lot of times people immediately run to their guardian ad litem and child rep and then it starts to build on an image of the hysterical parents or somebody who needs a lot of handholding, something to prove. It’s in addition to the fact that it’s time-consuming and it’s another attorney that’s charging because remember, as we’ve talked about, it’s another individual in the litigation. They charge as well. You’ve got a third professional who’s charging to read your emails or to have phone conversations with you. From both a strategy standpoint, you want to keep people in your camp but also from a logistical standpoint, you may not be communicating everything to your child rep especially as I’ve mentioned, nothing is privileged. My recommendation is if my client has an issue, come to me first. We can talk about it. Maybe I’ll suggest that we reach out together to the child representative but because there’s another professional available doesn’t mean that professional is available at all hours of the day.
Beth: If you hear nothing, hear that you should not have contact with this person without your attorney helping you see it. Part of the preparation is what adds to credibility is how detailed is all the data. If you’re going to sit and for three hours, tell me everything that you think I need to know about your child and why that child needs to be with you more, I’m human and the judge is human. We can only take in so much data. Preparing your case, whether that’s in a binder form, whether you know you want to give me doctor’s reports, school reports, all the data that you want, it needs to be dialed down to a nice concise summary with proof. It should be very thoughtful in each word rather than calling a lot because that’s the first way to give a pause and think, “What do you have to prove?” The truth’s going to come out. You want to make sure that you’re not coming across that way.
We’ve covered how I will communicate with my child’s attorney, but how do the attorneys communicate with one another? How do they work together for the best interest of the child? Most people, they want the best interest of themselves for all the various reasons we spoke about.
Beth: As a child’s rep, I ask for telephone calls pretty frequently and say, “Attorneys, we have court in three days. Let’s hop on a call. What can we figure out? The judge, you’re working on his or her behalf. What issues have we narrowed it down to?” If I can at least get a consensus from the lawyers, it’s ambitious, but at least the judge is going to say that I’m doing my very best. Phone calls prior to court, some it is you go to court, you show up and you hear it there. What are your experiences?
Katy: I think the most effective is most child rep or guardian ad litem, they’ll prefer to have everybody on the same page. Having us as attorneys, it’s really not proper for us to be having side conversations with the guardian ad litem or child rep. It puts them in a very difficult position because their client is the child. If they’re feeling swayed by either side, they somewhat lose a little bit of neutrality between the parents. They’re not representing either of the parents so that they can be pulled in either direction. Having that conversation with both attorneys present, it’s a better practice and a guardian ad litem or child rep prefers that.
Beth: One last thing to note that this is all about Illinois. This is how it works in Illinois. This is super important in practice, we were talking to you from the standpoint of the Chicago land area and the collar counties. All throughout the state of Illinois, every jurisdiction does it differently. I really wanted to make sure we gave that perspective.
Katy, are there any last words you’d like to include?
Katy: It’s that everybody’s got an important role and domestic relations cases are extremely contentious. They can be and everybody can work together and it’s not just about the best interest of the children. It really is about the best interest of the family. By having the right people to assist with both parties and the children, litigation can be a lot smoother if it needs to go there.
About Beth F. McCormack
Beth F. McCormack focuses on highly complex family law matters with vast experience in complex litigation, as well as Mediation and Collaborative Law. Beth also represents children, when appointed by the Court, which makes her unparalleled in her ability to navigate complex parenting issues. Beth appreciates the sensitivity surrounding high net-worth, high-profile, and child-related matters, with each requiring a very different skill set.
Beth’s practice is founded on compassion and empathy. She sees it as her responsibility to be aware of each person’s needs, seeking the most appropriate solution for each client.
Beth’s vast family law experience enables her to handle and settle complex and sophisticated issues many families face. She is an unwavering advocate for the best interests of children, and easily navigates families through the highly emotional nature of any divorce.
As one of the most influential attorneys in Chicago, Beth has naturally become a mentor to many professionals in the legal community. Her peers consistently nominate her as a Best Lawyer, Super Lawyer, and Leading Lawyer. Most recently, Beth was named top 50 women Super Lawyers. Her work ethic and community involvement have earned her accolades within the legal community, and beyond.
Ms. McCormack has a monthly column in the Chicago Daily Law Bulletin where she educates other lawyers on best practices and writes for many other publications as well.
About Katy H. Mickelson
Katy Mickelson, J.D., is a partner in the Divorce and Family Law Group at Beermann. Having started her family law career at Beermann in 2005, Ms. Mickelson tailors each case to her client’s individual needs, whether it is a dissolution of marriage proceedings (pre- and post-decree), paternity matters, prenuptial agreements or actions involving domestic violence. Ms. Mickelson believes that each family is different and she treats every case as another opportunity to help individuals transition to a new chapter in their lives that promotes financial and emotional dignity. Her ability to listen and “hear” her clients is one of her biggest strengths.
Ms. Mickelson’s trial and courtroom experience are extensive, however, when costly litigation can be avoided, she will draw on her experience as a certified mediator to settle cases efficiently and expeditiously. Ms. Mickelson is known for her practical approach to problem-solving, understanding that the family and its individual members continue to exist and thrive long after family law matters are resolved. It is this understanding that has enabled Ms. Mickelson to help her clients maneuver through the family law system and feel like their lives are still intact.
Ms. Mickelson received her Juris Doctorate from the Illinois Institute of Technology’s Chicago-Kent College of Law in 2005, where she was named to the Dean’s List. While at Chicago-Kent, Ms. Mickelson became a certified mediator through the Center for Conflict Resolution and participated in Chicago-Kent’s Litigation & Alternative Dispute Resolution program. Ms. Mickelson’s love for international travel led her to participate in Tulane University/Siena Institute of European Legal Studies’ European Union, Comparative & International Law program in Siena, Italy and to live abroad in Beijing, China where she worked in the intellectual property department of a Chinese law firm. Ms. Mickelson was admitted to the Illinois State Bar in 2005 and to the United States District Court for the Northern District of Illinois in 2006.
Ms. Mickelson graduated from the University of Michigan in 1995 with a Bachelor of Arts in Sociology, with Honors. Before practicing law, Ms. Mickelson was a public relations executive for seven years, managing the complex communications needs of many nationally recognized consumer products and services companies.
Ms. Mickelson is an active member of the Women’s Bar Association of Illinois and serves as co-chair of the organization’s widely praised Domestic Relations Roundtable, an annual gathering of family law practitioners and more than 20 family law jurists from Cook, Lake and DuPage Counties. Ms. Mickelson was former President of the Associate Board of CARPLS Legal Aid, a Chicago-based legal assistance foundation, and she currently dedicates a significant amount of her time to Make-A-Wish Illinois as the Philanthropy Chair of the organization’s Women’s Network. Ms. Mickelson has participated as a panel speaker for the Illinois Institute of Continuing Legal Education and has authored articles for various legal and non-legal entities, including the American Bar Association.
In 2010, 2012, 2013, 2014 and 2015, Ms. Mickelson was named a Rising Star by Super Lawyers Magazine, a designation reserved for the top 2.5% of all Illinois attorneys under 40. In 2012, she was recognized as one of the Law Bulletin Publishing Company’s 40 Under 40 Illinois Attorneys to Watch, a peer-nominated award. In addition, Ms. Mickelson has been named as a Leading Lawyer in 2015, 2016, 2017 and 2018, Best Lawyer in 2019 and one of Crain’s Media’s Most Notable Women Attorneys in 2018.
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