for cross examination was not denied to the parties.234 The mother petitioned the Illinois
Supreme Court, which held that the child representative statute was unconstitutional as applied
because it denied the mother the right to cross-examine the child representative about his
observations, but found that the error was harmless and upheld the custody determination.235
After Bates, practitioners were challenged in practice, concerned that they would be subject to
cross-examination if they made personal observations, thus limiting their attorney functions.236
In 2006, the Illinois legislature fine-tuned the statute noting that “the child representative shall be
an advocate for the child, but shall not give an opinion, recommendation, or report to the court,
and shall not be called as a witness. . . . The child representative shall offer evidence-based legal
arguments, and shall disclose what the representative intends to advocate in a pre-trial
memorandum.”237 The amendment made it clearer that the court could appoint a GAL whose
function was to report to the court or a child representative whose function was to serve as best-interests attorney to the child.238 Based on practice and need, the statute was then amended again
Without changes to the statute or Supreme Court rules, the role of the GAL has continued to be
defined and redefined by the courts in Kentucky. Illinois chose a path that was perhaps more
controlled -- a court decision followed by legislative amendments to bring the statute in
conformity with the ruling -- that allowed for greater clarity and uniformity of practice. The
234 Id. at 214.
235In re Marriage of Bates, 819 N.E.2d at 730.
236 See Ill. R. Prof. Conduct 1. 3 (Attorney diligence includes investigation).
237 705 ILL. COMP. STAT. 5/506(a)( 3) (West 2016).
238 See, e.g., In re Marriage of Debra N. and Michael S., 4 N.E.2d 78 (Ill. 2013) (The court was not required to
follow the recommendations of the attorney who did not testify but did have the authority to litigate and investigate
on behalf of the child.)