Can I Have the Guardian ad Litem Removed From the Case?

May 4, 2016 Divorce

You are involved in a bitter custody battle as part of your divorce case. You are advocating for primary placement of the children with your spouse to have visitation rights; your spouse is advocating that there should be an equal placement arrangement. You went to mediation and it was a shouting match between you and your spouse which resulted in a total waste of time. The court has now appointed a guardian ad litem to represent your minor children, and you do not believe the guardian ad litem is properly doing their job; they never met or interviewed your children; they spent 30 minutes with you at their office and wouldn’t let you hand them boxes of materials that you brought with you that you wanted them to review; you had several of your close family members and friends call the guardian ad litem and they have not returned any of their phone calls; you requested a psychological evaluation of your spouse, but the guardian ad litem does not see the need for it. You have called the guardian ad litem repeatedly and sent e mails and the GAL does not return your call or respond to your e mails. Your lawyer has talked to the guardian ad litem and was informed that they are leaning towards recommending a shared placement arrangement with the minor children and is not in favor of a more “traditional placement” arrangement with your having the children placed in your home the greater amount of time. You are fed up and angry and don’t feel the guardian ad litem is properly advocating for your children’s best interest and you want the GAL thrown off the case and replaced with a new guardian ad litem. Is that possible and can it be done?

This is a frequent phenomenon of parties’ going through a bitter custody battle. When one party sees that the guardian ad litem is not seeing it their way, they start advocating that the guardian ad litem isn’t doing their job and they want the guardian ad litem removed from the case. Is there a mechanism in the law that would allow the court to remove the guardian ad litem?

Under sec.767.407 (4m) Guardian ad litem for minor children, (4m) “Status Hearing,” reads as follows;
“(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 subsection is held, request that the court schedule another status hearing on the actions taken and work performed by the guardian ad litem in the matter.”

This statutory provision, in essence, gives the party to litigation a right to have the court scrutinize the work and actions taken by the guardian ad litem. Whether the court would consider the removal of the guardian ad litem is another matter. Before I specifically address the chances of that, consider what some of the case law says about the role of the guardian ad litem in Wisconsin;

1. A guardian ad litem has quasi-judicial immunity under Wisconsin law, Paige K.B. v. Molepske, 219 Wis. 2d 418, 580 N.W. 2d 289 (1998).
2. A guardian ad litem may not be called as a witness in a custody proceeding. The G.A.L. is to communicate with the court as a lawyer for a party and to present information by presenting evidence. Hollister v. Hollister, 173 Wis. 2d 413, 496 N.W. 2d 642 (Ct. App. 1992).
3. The guardian ad litem is an advocate for the child’s best interest, not a fact-finder or a consultant for the court. Goberville v. Goberville, 2005 WI AP 58, 280 Wis. 2d 405, 694 N.W. 2d 405.

The Judicial Council Committee notes following sec. 767.407 reads as follows;
“Sub. (4) defines the role of the guardian ad litem. It clarifies that the responsibility is as an advocate for the best interests of the child. It clarifies that the responsibility is as an advocate for the best interests of the child. It emphasizes the need for the guardian ad litem to function independently, while giving broad consideration to the views of others, including the children, social workers and the like. It also specifies that the guardian ad litem shall function in the same manner as the lawyer for a party. Among other things, this means that the guardian ad litem communicates with the court and other lawyers in the same manner as a lawyer for a party, presents information on relevant issues through the presentation of evidence or in other appropriate ways and generally functions as the lawyer for a party. In this case, the “party” is the best interests of the children. Sub. (4) also enumerates specific duties to emphasize their importance.”

When I am asked this question, can I request a new guardian ad litem and have the current one thrown off the case, I remind my client, or whomever is asking me the question generally, that the trial court hand picks the guardian ad litem from an active list that the court keeps of those attorneys who have the necessary experience and have fulfilled their GAL training requirements, to act as a guardian ad litem.

The guardian ad litem in most cases, is not a stranger to the trial judge, and in many cases, the trial judge may have known this particular attorney for a number of years, and perhaps has handled numerous guardian ad litem appointments for this particular judge. Your going after the guardian ad litem could have a serious adverse impact on the trial judge, who ultimately will be deciding your case, whomever the guardian ad litem might be, if you and your spouse do not settle the case. Do you really want the trial judge to be upset with you? Secondly, you aren’t going to be making any friends with the guardian ad litem, by accusing them of not doing their job, or being biased against you and attempting to have them thrown off the case. If you file such a petition or motion and lose, guess what; you are stuck with that same guardian ad litem and more likely than not, they are going to be very upset with you that you made an attempt to have them removed from the case, or accused of them of not doing their job properly. No one likes to be accused of not doing their job appropriately, including lawyers.

If you have a lawyer representing you, my advice would be for you to voice your concerns to your own lawyer, and let the lawyer talk privately to the guardian ad litem on what your concerns may be, in a diplomatic way. If you do not have an attorney representing you and you are pro se, I would suggest you reduce your concerns to writing and mail them to the guardian ad litem to review. You need to be factual, respectful and non-accusatory in voicing your concerns as it affects your children; if you cannot compose such a letter or e mail without becoming emotional and accusatory, don’t write the letter in that case. If you honestly feel strongly that the guardian ad litem should be removed, you have the right to file a motion or petition with the court to do so, even though not expressly stated within the confines of sec. 767.407 (4m) as pointed out above. However, if you do so, there could be serious consequences on the impact it may have on the trial judge and the guardian ad litem, if your request for removal is denied and falls on deaf ears.

Being a guardian ad litem is not a popularity contest. Much like the trial court having to decide final placement of your children in the absence of an agreement between you and your spouse, one of you are not going to like the outcome of the case, once the court makes a decision, and it is quite common during the pendency of the case, when you get a feeling that the guardian ad litem is not seeing it your way, to feel that the guardian ad litem is not doing their job or is biased against you. In the absence of you and your spouse agreeing, the guardian ad litem is faced with the monumental task of making a recommendation to the court that inevitably, one of the parties is going to disagree with. The trial court is going to be acutely aware of this and unless the guardian ad litem has done no investigation at all in the case, or has done something unethical, your chances of having the guardian ad litem are probably astronomical. In 34 years of practicing law, I have never seen it done once. There is an old saying, said usually in a sarcastic way, “good luck, with that!”

When involved in a custody battle, and if you have questions on the role of the guardian ad litem, contact the family law firm of Karp & Iancu, S.C. today for an initial consultation. They are conveniently located in Wauwatosa, WI.

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