A Case in Point

The court construed the statute to affirm its constitutionality and resolved it through a plain reading of the applicable section, 506. It reviewed the three possible situations in which the CR might act as an advocate for the child. If the CR makes recommendations based on evidence presented in court, he is advocating like an attorney and cannot be called as a witness. If the CR bases his recommendations on third-party information, the opposing party can condition any recommendation so based on revealing the underlying sources so that those sources can be questioned by the opposing party. If the CR directly witnesses relevant facts that are used to support the recommendation, he has become a witness who may be called and questioned at trial like any other witness. Accordingly, the court concluded that section 506 was not unconstitutional because it did not deny the due process right to request disclosure of underlying factual matters and to cross-examine the CR when he acts as a witness.

The appellate court held that the trial court should have allowed cross-examination to the extent that the CR's recommendations were based on his own observations. However, the error was harmless because the recommendation did not play a significant part in the outcome of the trial. It affirmed the trial court's order.

Comment

Most states have a mechanism in child custody cases by which a court can appoint a professional, usually a lawyer, to be his or her “eyes and ears.” This is normally done in one of two ways; either appointing an attorney for the child (AFC) or a guardian ad litem (GAL) (see article entitled “Neutralizing the So-Called Neutral” in this issue). In Illinois, Section 506 of the Dissolution Of Marriage Act originally allowed a court to make such appointments. Since the two roles sometimes were inconsistent, the legislature sought to create a new entity. Section 506 now also empowers the court to appoint a “child representative. (CR) ” On its face, the statute purports to allow the child representative to make the same investigation and recommendation as a guardian ad litem. However, the statute also provides that the child representative shall not be called as a witness (contrary to the role of a GAL). Courts in Illinois now routinely appoint a child representative rather than an AFC or GAL.

In the Bates case, this author represented the petitioner, the mother. The CR rendered a lengthy detailed pretrial report containing opinions, impressions and quite a bit of hearsay. When the CR sought to introduce the report into evidence, I claimed the new statute was unconstitutional. I argued that it violated my client's right to due process of law when the CR is allowed to make a recommendation without being cross-examined regarding the basis for his recommendations. For example, there was no way to attack the hearsay that was used to support his recommendation. In contrast, in Illinois a Section 604(b) expert (750 ILCS 5/604(b)) who is appointed by the court, can be cross-examined regarding his report. It is that step that provides the due process that is missing in Section 506. I also argued that by relying on this report the trial court made the hearing fundamentally unfair, both to my client and the minor child, and that the statute, as applied by the court, denied my client procedural due process guaranteed by the United States Constitution (U.S. Const., AMEND. XIV) and the Illinois Constitution of 1970 (Ill. Const. 1970, ART. I, SEC. 2) (Fourteenth amendment provides that no state shall deprive any person of property without due process of law).

Although the appellate court held that the statute was constitutional, I am gratified that the court at least seemed to acknowledge that when the child representative directly witnesses relevant facts (and the court conceded that those observations provided part of the underlying basis for the recommendations in the report), he has stepped out of his attorney role and has become a witness who may be called and questioned at trial under terms specified by the court. Moreover, the court also ruled that the trial court's failure to allow the child representative to be questioned, was error (although the error was not significant enough to warrant a new trial).

Nevertheless, allowing the CR to testify is expressly contrary to the statute, which states: “The child's representative shall not be called as a witness regarding the issues set forth in this subsection.” Thus, to construe the statute constitutionally, the court disregarded the express terms of the statute. The bottom line is, when advocating for a child, you are either a lawyer or a witness. This particular statute did not resolve that fundamental conflict.

(Bates v. Perez, Nos. 2-02-0488, 2-02-0526, 2-02-0597, Ill.App.Ct., July 9, 2003.)

Norma and Edward Bates divorced and established joint custody of their daughter. Less than a year later, Edward moved for a change of custody to award sole custody to him. The trial court considered the child representative's (CR) report, the exhibits, testimony of the experts, parents and nonparties, and arguments of counsel, and ordered custody changed to the father. The court found that the father had proved by clear and convincing evidence that the “the child's present environment seriously endangers her physical, medical, moral, or emotional health, and that a substantial change of circumstances has been proved by clear and convincing evidence, and that it is in the child's best interests that respondent have sole custody.” He ordered that visitation be abated pending a recommendation by the CR and an appointed doctor and that the father consume no alcohol under further order by the court. The mother appealed.

During the trial, Norma made a motion to have the court order the CR to testify or, alternatively, to have the statute under which the CR was appointed declared unconstitutional. The trial court denied the motion and on appeal, Norma argued that her due process rights were violated because the statute allows the CR to submit a recommendation without testifying. Consequently, she was denied her right to cross-examine him about the underlying factual basis for his recommendation.

The court construed the statute to affirm its constitutionality and resolved it through a plain reading of the applicable section, 506. It reviewed the three possible situations in which the CR might act as an advocate for the child. If the CR makes recommendations based on evidence presented in court, he is advocating like an attorney and cannot be called as a witness. If the CR bases his recommendations on third-party information, the opposing party can condition any recommendation so based on revealing the underlying sources so that those sources can be questioned by the opposing party. If the CR directly witnesses relevant facts that are used to support the recommendation, he has become a witness who may be called and questioned at trial like any other witness. Accordingly, the court concluded that section 506 was not unconstitutional because it did not deny the due process right to request disclosure of underlying factual matters and to cross-examine the CR when he acts as a witness.

The appellate court held that the trial court should have allowed cross-examination to the extent that the CR's recommendations were based on his own observations. However, the error was harmless because the recommendation did not play a significant part in the outcome of the trial. It affirmed the trial court's order.

Comment

Most states have a mechanism in child custody cases by which a court can appoint a professional, usually a lawyer, to be his or her “eyes and ears.” This is normally done in one of two ways; either appointing an attorney for the child (AFC) or a guardian ad litem (GAL) (see article entitled “Neutralizing the So-Called Neutral” in this issue). In Illinois, Section 506 of the Dissolution Of Marriage Act originally allowed a court to make such appointments. Since the two roles sometimes were inconsistent, the legislature sought to create a new entity. Section 506 now also empowers the court to appoint a “child representative. (CR) ” On its face, the statute purports to allow the child representative to make the same investigation and recommendation as a guardian ad litem. However, the statute also provides that the child representative shall not be called as a witness (contrary to the role of a GAL). Courts in Illinois now routinely appoint a child representative rather than an AFC or GAL.

In the Bates case, this author represented the petitioner, the mother. The CR rendered a lengthy detailed pretrial report containing opinions, impressions and quite a bit of hearsay. When the CR sought to introduce the report into evidence, I claimed the new statute was unconstitutional. I argued that it violated my client's right to due process of law when the CR is allowed to make a recommendation without being cross-examined regarding the basis for his recommendations. For example, there was no way to attack the hearsay that was used to support his recommendation. In contrast, in Illinois a Section 604(b) expert (750 ILCS 5/604(b)) who is appointed by the court, can be cross-examined regarding his report. It is that step that provides the due process that is missing in Section 506. I also argued that by relying on this report the trial court made the hearing fundamentally unfair, both to my client and the minor child, and that the statute, as applied by the court, denied my client procedural due process guaranteed by the United States Constitution (U.S. Const., AMEND. XIV) and the Illinois Constitution of 1970 (Ill. Const. 1970, ART. I, SEC. 2) (Fourteenth amendment provides that no state shall deprive any person of property without due process of law).

Although the appellate court held that the statute was constitutional, I am gratified that the court at least seemed to acknowledge that when the child representative directly witnesses relevant facts (and the court conceded that those observations provided part of the underlying basis for the recommendations in the report), he has stepped out of his attorney role and has become a witness who may be called and questioned at trial under terms specified by the court. Moreover, the court also ruled that the trial court's failure to allow the child representative to be questioned, was error (although the error was not significant enough to warrant a new trial).

Nevertheless, allowing the CR to testify is expressly contrary to the statute, which states: “The child's representative shall not be called as a witness regarding the issues set forth in this subsection.” Thus, to construe the statute constitutionally, the court disregarded the express terms of the statute. The bottom line is, when advocating for a child, you are either a lawyer or a witness. This particular statute did not resolve that fundamental conflict.