January 01, 2012

Illinois Child Representatives Entitled to Absolute Immunity

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Child representatives are absolutely immune from liability when working as advocates within the scope of their court-appointed duties. The child’s representative acts as an arm of the court in assisting in a neutral determination of the child’s best interests and absolute immunity is essential to allow the representative to fulfill his duties without threat of

Vlastelica v. Brend, 954 N.E.2d 874 (Ill. App. Ct. 2011).

In connection with a couple’s contentious divorce proceeding, a child’s representative was appointed for the couple’s son to advocate for the child’s custody, support, and visitation rights.

After the appointment, the child’s mother filed a motion accusing the child’s representative of improper and fraudulent conduct. The trial court denied the mother’s motion and imposed sanctions against the mother after finding no evidence to support her allegations. The appellate court affirmed the sanctions.

The mother filed two separate motions to discharge the child’s representative. Both motions, which alleged bias and improper influence of a court-appointed psychologist, were denied.

The child’s representative continued to represent the child until the dissolution of marriage was fully adjudicated and finalized in March 2008.

In February 2010, the mother and child filed a three-count complaint against the child’s representative and his law firm. The three counts alleged legal malpractice, intentional breach of fiduciary duty, and intentional interference with her custody rights.

To support these claims, plaintiffs argued the child’s representative refused to discuss some issues that were pending, insisted on discussing “nonissues”, attempted to “bully” her into an agreement, made false representations to the court, wrongfully influenced a court-appointed psychologist, and failed to file responses to some motions.

They also claimed the representative’s questions and objections at hearings wrongfully favored the father and resulted in lengthy litigation. They claimed the representative’s law firm was liable for the child representative’s malpractice since it had performed work in the case.
The trial court granted defendants’ motion to dismiss, finding they were absolutely immune from civil liability for the child representative’s work. Plaintiffs appealed.

The Appellate Court of Illinois affirmed. The court cited Cooney v. Rossiter, 583 F.3d 967 (7th Cir. 2009), which held that guardians ad litem (GALs) and child representatives are entitled to the same absolute immunity provided to judges since they are “arms of the court.” The court rejected plaintiffs’ contention that Cooney was unpersuasive in this case because it wrongly equated a child representative with a GAL.

Plaintiffs noted that a child’s representative advocates for a child’s best interests and participates in the litigation as an attorney for a party, whereas a GAL advocates for a child’s best interests through his written reports and recommendations. A plaintiff claimed the child’s representative, acting as an attorney for the child, has a fiduciary relationship with the child, must maintain confidentiality with the child client, and is no more an “arm of the court” than the parties’ own lawyers. They also disputed the Cooney court’s characterization of a child representative as a “neutral” court-appointed expert witness.

The appellate court responded that a child’s representative is a “‘hybrid’ of a child’s attorney and a child’s GAL who acts as an arm of the court in assisting in a neutral determination of the child’s best interests.” It stressed that absolute immunity is essential to allow the child’s representative to fulfill his duties without threat of harassment from unhappy parents.

Plaintiffs also argued that finding the child representatives absolutely immune from liability conflicts with the “functional” approach to immunity set by the U.S. Supreme Court. Under that approach, absolute immunity flows from the nature of a person’s responsibilities, not the person’s rank or position within the government.

Factors used to determine if a person is entitled to absolute immunity include:

  1. the need to assure the person can perform his functions without harassment or intimidation;
  2. the presence of safeguards that reduce the need for private damages actions to control unconstitutional conduct;
  3. insulation from political influence; 
  4. the importance of precedent; and
  5. the adversarial nature of the process.

The court found these factors weighed in favor of granting child representatives absolute immunity. The adversarial and emotionally charged nature of the proceedings called for absolute immunity to ensure the child’s representative could perform his duties free from harassment or intimidation.

Further, the court cited safeguards requiring that child representatives be attorneys with training in child advocacy or equivalent experience, and that they fulfill their professional obligations as attorneys. These safeguards, in addition to available remedies when unprofessional conduct occurs, such as disciplinary actions and the ability of the court to appoint an additional attorney for a child, help protect against unconstitutional conduct.

Contrary to plaintiffs’ arguments, the court found the functional approach to immunity supported the trial court’s finding that the child’s representative was entitled to absolute immunity. The court rejected plaintiffs’ argument that the child’s representative stepped outside his role when he pressured the mother to give custody of the child to the father and reduce visits. All of the representative’s conduct occurred after he was appointed to represent the child and as part of his duties as the child’s representative.