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Challenging the Guardian ad litem

 

 

 

The other day I wrote about the nuts and bolts of how a guardian ad litem conducts their investigation. What happens when you finally receive the recommendation, but you don’t agree with it? Is there anything you can do to challenge the recommendation?

There is a procedural challenge to either the investigatory work or recommendation made by the guardian ad litem, under Wisconsin statute s. 767.407 (4m).  A status hearing can be requested.

(4m) STATUS HEARING. (a) “Subject to par. (b), at any time after 120 days after a guardian ad litem is appointed under this section, a party may request that the court schedule a status hearing related to the actions taken and work performed by the guardian ad litem in the matter.

(b) A party may, not sooner than 120 days after a status hearing under this section, a party may request that the court schedule a status hearing related to the actions taken and work performed by the guardian ad litem in the matter.”

A lot of litigants going through a custody battle seem to forget that the judge decides the case, not the guardian ad litem. All is not lost just because you get an adverse recommendation from the guardian ad litem. The judge has discretion to accept the recommendation of the guardian ad litem, reject it altogether, or amend it to the court’s liking. I  have even had guardian ad litems do a 360 on me, when the case may have been initially going badly for my client, but through zealous advocacy and discovery, we convinced the guardian ad litem that their initial thoughts and recommendations on the case and made recommendations in favor of our client. If you don’t agree with the recommendation of the guardian ad litem, a person has the perfect right to take the case to contested hearing or trial. Yes, it is true that  at the conclusion of the case, the trial court is going to turn to the guardian ad litem and most likely rely very heavily on the recommendation made, but the recommendation is not outcome decisive. The court can decide on it’s own what the orders for custody and placement should be. I have had courts completely reject the recommendation of the guardian ad litem, and have even see guardian ad litems get scolded by the court for sloppy lawyering and shoddy investigation made that underlies the recommendation.

All is not lost if you find out that the recommendation is adverse to your client’s wishes. The best advice is to continue to battle the case and present the best evidence and case at trial that you can and convince the trial court that while the guardian ad litem may be well intended, they are simply wrong. You can do that with  a strong case, strong witnesses, strong evidence, both in testimony and written evidence.

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