What Is The Purpose Of Guardian ad Litem In Wisconsin Family Court?

If there is a custody or placement dispute involving your children during the divorce process, the court may appoint a Guardian ad Litem to perform an investigation and make a recommendation to the court.

A Guardian ad Litem is an attorney who is appointed by the court to represent the children’s best interests—this is different from representing the child. A Guardian ad Litem is not the child’s lawyer.

A Guardian ad Litem or “GAL” (pronounced as an acronym: G.A.L. and not as the word “gal” or “gall”) is charged with performing an investigation into the parents’ wishes, the child’s wishes, and any other matters relevant to the child’s best interests during the divorce process. And while a GAL is supposed to ascertain the child’s wishes and make them known, the GAL is not bound by those wishes—and neither is the court.

It is an urban legend that in family court children can choose who to live with when they reach a certain age. In Wisconsin, children are under the court’s jurisdiction until they are 18—and until they reach 18, they are subject to a Guardian ad Litem’s recommendation as to what is in their best interests. Often children are too young to state a meaningful preference about where to live. Other times, children are manipulated or incentivized to choose one parent over the other. And yet at other times, children have their own reasons for choosing one parent—but those reasons are not good for the child. In all such situations, it is up to the Guardian ad Litem to determine the child’s motives for his or her stated preference and to investigate whether that preference is most beneficial to the child.

Questions answered in this article:

• How Does A Guardian ad Litem Become Involved In A Case?
• Who Can Be A Guardian ad Litem?
• Who Pays For The Guardian ad Litem?
• Can A Guardian ad Litem Be Appointed For An Adult?
• What Does A Guardian ad Litem Do?
• Are Guardian ad Litem Neutral?
• How To Get A Guardian ad Litem On Your Side
• What If A Parent Disagrees With The Guardian ad Litem’s Recommendation?
• How Often Does A Judge Agree With A Guardian ad Litem?
• Contact Us For Any Questions You Have About The Role Of Guardian ad Litem In Wisconsin Family Court

How Does A Guardian ad Litem Become Involved In A Case?

A GAL is appointed by the judge whenever a child’s custody or placement is in dispute and the parents have been unable to resolve the dispute through mediation or other reasonable means. The judge can also appoint a GAL when a child’s paternity is contested or in certain jurisdictional disputes (for example, when a parent wants a Wisconsin court to take jurisdiction over a custody case from another state or country). Any time the court believes a child’s best interests will be impacted by the litigation, a GAL can be appointed.

However, a GAL does NOT have to be appointed in post-judgment case (where the parties are already divorced or paternity has already been adjudicated but the parents still have unresolved disputes), or when the court believes a party has requested a GAL as a legal tactic intended to delay the proceedings, or if the court believes a GAL would not help the court resolve the issues in dispute.

Typically, a party to the litigation asks the court to appoint a GAL by filing a petition that sets forth the unresolved custody and placement issues in dispute. However, the judge can appoint a GAL “sua sponte” (on his or her own motion) if he or she believes the case warrants it.

Who Can Be A Guardian ad Litem?

Not just anyone can be a Guardian ad Litem. A GAL must be an attorney but he or she cannot be the attorney for either party to the action or to any other interested party. Most counties require that GALs either have extensive or specialized experience as a family lawyer in child custody and placement disputes or that they complete continuing legal education courses specific to becoming a Guardian ad Litem—which includes special training on how to screen for and manage cases involving domestic violence.

However, there are no requirements regarding the length of time a GAL must be a lawyer and there is no requirement that a GAL have parenting experience. This means sometimes the Guardian ad Litem is a new lawyer who may or may not have experience with children, parenting dynamics and what is or is not normal for a child’s developmental stage. Unfortunately, once a GAL is appointed by the court, it is very difficult to remove them. They can only be relieved by the judge—and typically only for a legal technicality such as having a conflict of interest. They cannot be removed simply because they seem to be biased against one parent or because they have conducted an inadequate investigation or because the parents disagree with the GAL’s recommendation.

Who Pays For The Guardian ad Litem?

Usually, the parties pay for the Guardian ad Litem. Once the court determines a GAL is needed, the judge will appoint a GAL and establish his or her fee—including how it is to be posted or paid. Typically, the judge will require each party to post a substantial deposit ($1,000 or more) and will also set the GALs hourly rate—which can be anywhere from $100 to $400 per hour or more depending on the GAL’s experience level and expertise.

Parties who require a GAL but who cannot afford to pay for one might be ordered to contribute to the GAL’s fees on a monthly basis. It is also possible that in certain cases, the county will pay for the GAL at a reduced hourly rate—however, this is not typical in contested divorce cases.

Courts cannot require an indigent party to pay GAL fees. And the county will only pay GAL fees if both parents are declared indigent by the court. If one parent is declared indigent and the other parent is not, the non-indigent parent must pay ALL of the GAL fees.

Can A Guardian ad Litem Be Appointed For An Adult?

On rare occasions, the answer is, “Yes.”

If a party to a divorce action is severely disabled or incapacitated such that he or she cannot make decisions in his or her own best interests, it is possible the court will appoint a GAL to represent that party’s best interests.

Again, this is different than serving as the attorney for a party. As advocate counsel, an attorney would try to achieve goals and objectives established by the client. A GAL is appointed when a party lacks the capacity to establish his or her own goals or objectives. A GAL often works in tandem with the incapacitated party’s lawyer or Power of Attorney to help the party make decisions that direct the party’s advocate counsel.

Whether the GAL is appointed for a child or for an adult, their role remains the same: They are to represent the party’s best interests. This means they must make decisions that they believe are best for the party even if those decisions are contradictory to the party’s own will or opinions.

What Does A Guardian ad Litem Do?

• A GAL functions independently in the same manner as an attorney for a party.
• A GAL must consider—but is not bound by—the wishes of the child.
• A GAL must also consider—but is not bound by—the positions of others (such as parents, grandparents, daycare providers, teachers, therapists, etc.) as to the best interests of the child.
• A GAL must consider the statutory factors impacting custody and placement—and must specifically investigate and consider whether there is domestic violence in the family.
• A GAL considers these things by performing an investigation that generally includes meeting with both parties and, if the child is old enough, with the child, as well. If the child is particularly young, the GAL may choose to observe each parent’s interactions with the child. The GAL may also gather information and evidence by talking to third-party witnesses or reviewing documentation and information provided by third-party sources. For example, a GAL may interview a child’s teachers and review his or her school records or may interview a child’s pediatrician or therapist and review the child’s medical or treatment records.
• After the GAL completes his or her investigation, he or she usually makes a recommendation to the court as to what kind of custody or placement arrangements are in the child’s best interests. The court then weighs this recommendation against the other evidence presented at trial and ultimately makes a determination as to what the custody and placement orders should be.
• While judges usually find a GAL’s recommendation to be persuasive, the judge does not have to follow it.

Are Guardian ad Litem Neutral?

Short answer: Yes, they’re supposed to be.

The Guardian ad Litem is expected to be an objective third party throughout any case. The GAL is to convey to the court the wishes of the children, even where the GAL may disagree with those wishes.

In Wisconsin, Guardian ad Litem are treated as quasi-judicial officials, which means:

• they are immune from being sued for malpractice, but are not immune from ethical discipline if they violate any Supreme Court ethical rules for professional conduct for attorneys.
• 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.
• they don’t decide the case, the trial court decides the case.
• they make 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.

What To Do If A Guardian ad Litem Is Biased

While any attorney is entitled (and will presumably have) their own opinions, preconceived notions, and values relating to their cases, the GAL’s role is not to project their own personal opinions or views onto the case they’re investigating—it’s 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. It’s important to remember that Wisconsin law clearly states:

• there is no presumption of equal placement of children—there is no statutory right to 50/50 custody of a minor child, nor is there a constitutional right to 50/50 custody of a minor child.
• a parent is to be afforded placement time with their children and the fact that they are not paying or cannot pay child support cannot be used against them in denying them placement.

When conducting their investigations, the GAL should be prepared during status or pre-trial conferences to fully explain to the court what their investigation has consisted of to date, and what more needs to be done so that they can make a recommendation to the court.

How To Get A Guardian ad Litem On Your Side

The best way to persuade a Guardian ad Litem is to take a reasonable position that is child-focused. Advocate for what is best for your child–not what is best or most convenient for you (or what is the worst and least convenient for your co-parent). Treat your child’s other parent with respect. Communicate with them freely and meaningfully. Most of all, encourage your child to have a happy relationship with the other parent and, of course, tell the truth, provide accurate and detailed information to support your position, and do not use the litigation as a way of “getting back” at the other parent.

• What Not to Say to a Guardian ad Litem: What not to say will be heavily dependent on the facts of each case. If you have questions about what you should or should not say to a GAL in your particular circumstances, call us for a 100% confidential consultation.
• Consequences of Lying to a Guardian ad Litem If a GAL discovers you have lied, he or she will most likely notify the judge–which will call your credibility into question as to the rest of the issues in dispute. It will taint your case in front of the judge and could negatively impact the GAL’s recommendation and your results at trial.

What If A Parent Disagrees With The Guardian ad Litem’s Recommendation?

Often, the GAL will defer to one parent’s position or the other—as the courts tend to believe that parents are best suited to make decisions for their children. When there is a dispute between parents or when their positions cannot be reconciled, sometimes the Guardian ad Litem will offer creative ideas or other solutions that are more appropriate for the child. And though a GAL will listen to the parents and may adopt certain aspects of a parent’s position, a GAL does not have to adhere to a parent’s wishes at all. It is only one factor they must consider.

Sometimes, a GAL offers the court a position or recommendation that is completely different from what either parent has requested. If neither parent likes the GAL’s recommendation, it might cause the parents to negotiate or reconsider their own positions in an effort to reach a resolution on their own. However, once a GAL is appointed, the GAL must approve any agreements reached between the parents. GALs are often happy when parents put aside their differences to resolve their issues together and will sign off on any agreement the parents reach. But sometimes a GAL might interfere with or prevent the parents from settling if they believe the agreement between the parents is not in the child’s best interests. In such an instance, the parents will not be able to settle and will have to either try the case with hope of getting a different result from the judge or they will have to refine their agreement to conform to whatever the GAL recommends and will approve.

How Often Does A Judge Agree With A Guardian ad Litem?

Generally, a GAL’s recommendation is only as good as his or her investigation. If the GAL has done a thorough job and has investigated both parents’ claims and concerns and has evidence to support his or her recommendation, the GAL’s recommendation can carry great weight with the trial judge. On the other hand, if the GAL has not gathered evidence and has not talked to the people with the information most relative to the children’s best interests, it is possible the judge will not find the GAL’s recommendation to be persuasive.

Do Judges Listen To Guardian ad Litem?

As stated in the section above–sometimes they do, and sometimes they don’t. However, because the GAL is appointed to be the judge’s eyes and ears with respect to the custody and placement issues, judges typically only appoint people to be GAL if they trust their opinions and know they will do a good investigation.

Contact Us For Any Questions You Have About The Role Of Guardian ad Litem In Wisconsin Family Court

If you have questions about whether a GAL may be needed in your case and what to expect from a GAL investigation, please call us at (414) 485-0191 to schedule a consultation.