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Are Guardian ad litems neutral?

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The other day on one of the “ask lawyer” web sites, someone posted a note asking if court appointed guardian ad litems are neutral and unbiased? They felt the guardian ad litem was against them and were advocating their removal from the case. Most of the responses provided by other lawyers to the inquiry was that lawyers appointed as guardian ad litems are not neutral and do not need to be. They are advocates for the best interests of the child and bring their own life experiences, prejudices, biases and opinions about children to the case.

Over the years I have heard guardian ad litems make statements in a custody case, such as, “I think little children belong with their mommies;” “I start with the presumption that in every case, parents should have 50/50 placement of their children;” “I recommend no placement unless the parent pays child support.” Do any of those comments sound like it is from a position of neutrality or not being biased? If a guardian ad litem appointed by a court to advocate for a child takes the position in a custody battle that “little children belong with their mommies” and you are the father in the case, your case is pretty much sunk. The only thing you can do is hope and pray that the judge or if there is a case worker assigned, sees things differently. Same holds true for the guardian ad litem who takes the position that there is a presumption of 50/50 placement in the state of Wisconsin, and that is what they advocate in every case, unless you can produce evidence that would convince the GAL and the court otherwise. If you are a mother with babies at home or toddlers, that is probably not what you want to hear from the guardian ad litem, as that mother’s advocacy would be for primary placement. Not only is that the guardian ad litem’s personal view of how parents in a divorce should share placement, but it is not even a correct legal position to advocate, as the law is clear in Wisconsin, that there is no presumption to equal placement of children. There is no statutory right to equal placement nor is there a constitutional right to equal placement of minor children. Same holds true for the guardian ad litem who advocates that a particular parent could not get any placement, unless they started paying child support. The statute says the exact opposite. A parent is to be afforded placement time with their children and the fact that they are not or cannot pay child support cannot be used against them in denying them placement.

Guardian ad litems are treated in Wisconsin as quasi-judicial officials. They are immune from being sued for malpractice, but are not immune from ethical discipline if they violate any SCR ethical rules. They do not testify in court and you cannot compel them to take the witness stand. They are appointed by the trial court to advocate for what is “in the children’s best interest.” They are required to conduct an investigation and make a recommendation to the court regarding custody and placement or other issues essential to the best interest of minor children. They are required by statute, to convey the wishes of the child to the court, even if they feel that the wishes of the child run contrary to what the guardian ad litem believes may be in the minor child’s best interest. The guardian ad litem doesn’t decide the case, the trial court decides the case. The guardian ad litem makes recommendations to the court, which the trial court is free to accept, reject or amend to its own preference, based on the law, the facts and the evidence presented in the case.

The guardian ad litem, in my opinion, should be making a recommendation to the court based on their investigation, what they honestly believe may be in the child’s best interest, and apply the law to the case, just like the trial court is required to do so. While everyone has their own opinions and values about things, hearing a guardian ad litem’s personal opinion or views about children is not helpful to the case, the children or in serving their role as a court appointed advocate for the best interests of a minor child. Did someone say that a guardian ad litem is required to be neutral?

Contact Karp & Iancu for more information on this article.

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