Guardian ad litem recommendations

February 23, 2018 Parenting & Kids, Post-Divorce

The other day I wrote about what a guardian ad litem’s investigation typically consists of, when parents are in engaged in custody litigation over their minor children. Today’s blog, focuses on what form the recommendation of the guardian ad litem takes and when one might expect to receive that recommendation.

Assume that the parties are in the middle of a divorce and cannot agree on the custody or placement of their minor children. They were court ordered to go to mediation, which they did, and were unable to reach an agreement. Following that, the court appointed a guardian ad litem to ultimately make recommendations to the court on the custody and placement of the minor children. The guardian ad litem has conducted an investigation and gone through many of the points detailed in my blog posted on 2/22/18. Several months have past, and now the parties are getting anxious as to (a) what the recommendation is and (b) when they might expect to hear something.

  1. When to expect to receive the recommendation. While there is no rule or law that applies, absent the court entering an order when the recommendation might be due, one can expect to receive a preliminary recommendation from the guardian ad litem at the time of  the final pre-trial on the case. This means that generally, you would know where the guardian ad litem is coming from prior to a contested hearing or trial on the divorce. Even if the guardian ad litem doesn’t make the recommendation at the time of the final pre-trial  or if one isn’t scheduled, most guardian ad litems will alert the attorneys, and if the parties are pro se, the parties themselves, what the recommendation is going to be, prior to the contested trial or hearing date. Most of the guardian ad litems will preface their recommendation, that it is subject to change or revision, based on the evidence or testimony presented during the contested hearing.
  2. In what form can you expect to receive the recommendation. This is of considerable debate among attorneys who serve as guardian ad litems and their are various opinions on what form the recommendation should take. Some take the position that the recommendation should never be placed in writing. For those who subscribe to that theory, you can expect to be verbally told what the recommendation is going to be. For those who believe the recommendation should be in writing, I have seen such recommendations be placed in informal letter form on the lawyer’s stationery, and in some cases, can be quite detailed. In cases where the recommendation may be ordered by the court to be placed in written form, I have seen some guardian ad litems make their recommendation pursuant to court order by putting the same into a pre-trial submission. This takes the form of a formal legal pleading, much like a trial brief.

While there is no necessarily right or wrong way as to when the guardian ad litem should make their recommendation or in what form it should take, clearly, the litigants and their attorneys are anxious to know where the guardian ad litem is coming from, and the sooner the guardian ad litem can share their recommendations with the parties, the more time the parties will have to reflect on the recommendation and make a decision on whether they wish to continue with litigating the case, or discuss possible solutions to settle the case, based on the guardian ad litem’s recommendation.

If you have questions on custody litigation in the state of Wisconsin, or how guardian ad litems operate, including their duties and responsibilities, contact the experienced family lawyers at Karp & Iancu, S.C. today.

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