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.
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.
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.
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.
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.
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.
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.
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 free consultation.
933 N. Mayfair Rd., Suite 300
Milwaukee, WI 53226
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