If there is a custody or placement dispute involving your children, the court may appoint a Guardian ad Litem to perform an investigation and make a recommendation to the court.
Guardian ad litem is a legal term, where “ad litem” refers to the appointment by a court of an attorney to act in a lawsuit on behalf of a party who is incapable of representing his or herself—this is usually child (or in some cases an incapacitated adult). In a divorce case, a guardian ad litem is an attorney who is appointed by the court to represent a child’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. 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.
For example, 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. This is what’s known as a guardian ad litem investigation (see next section).
A guardian ad litem can be appointed in a number of family law contexts:
In order to make an official recommendation to the court on how to establish or modify a child custody or child placement arrangement, a GAL must conduct a comprehensive and detailed investigation. Neither of the parents get to dictate what the GAL’s investigation should consist of.
Short answer: depends on the facts of the case, the issues being addressed or concerns raised by both parents.
An investigation typically requires some basic protocol for a GAL to follow (the below list is not intended to be exhaustive), including:
For any child custody or placement case that involves domestic violence or abuse, a GAL is expected to fully investigate those issues and report back to the court on how those issues affect custody and placement of the children.
Similarly, for any child custody or placement case that calls into question safety concerns or an unsuitable living environment for the child, a guardian ad litem will more than likely make a home visit with a social worker. This is because a GAL is an attorney and is not permitted to testify in court, but a social worker is.
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, guardians ad litem are treated as quasi-judicial officials, which means:
Jump to Can I have a guardian ad litem removed from my case? below to take action.
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:
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.
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 state will pay for the GAL at a reduced hourly rate—however, this is not typical in contested divorce cases.
Can a GAL 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 to help the party make decisions that direct the party’s advocate counsel.
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.
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.
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 lawyers in custody and placement disputes or that they complete continuing legal education courses specific to becoming a Guardian ad Litem.
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.
Before trial, a guardian ad litem will prepare to explain in full detail what their investigation has consisted of to date during a status conference or pre-trial conference. This time is also used for the GAL to clearly outline what other action steps need to be taken and whether they’re experiencing any roadblocks to achieving those milestones in order to make an informed recommendation to the court.
In addition to this, GALs will take other pre-trial measures by reviewing all legal papers, otherwise known as pleadings, associated with the case. They can also use this time to draft and file their own legal papers, motions, pre-trial briefs etc. Any court ordered scheduling orders equally applies to the guardian ad litem.
At trial or other final contested court hearing, the GAL will make their official recommendation to the court. If required by the court to do so in writing, as opposed to a verbal recommendation, the guardian ad litem will do so in the form of a trial brief or proposed court orders. The GAL is also a party to the action and, as such, has the right to introduce his or her own evidence and to call his or her own witnesses and to cross-examine the witnesses called by other parties.
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.
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.
Short answer: Under Wisconsin law, no.
The court is responsible for appointing the guardian ad litem. This selection is made from a list of individual attorneys who maintain the proper legal education credits to serve as a GAL.
Under more rare circumstances, an attorney will submit their recommendation for an attorney they’d like appointed as GAL to the trial judge. Even under these circumstances, the judge is able to reject the attorney’s suggestion and consult their list of GALs instead. A judge can even appoint an attorney who has not maintained the proper legal education requirements and who is not on the “list” of GALs if the person is exceptionally qualified or has specialized knowledge the judge finds would be helpful to the investigation.
Yes. Either parent can request that the court appoint a Guardian ad Litem. Sometimes, if both parents agree that a GAL needs to be appointed they can agree to appoint a specific Guardian ad Litem, however, their suggestion is subject to court approval.
Short answer: Not likely. And if you want to try to remove a GAL, navigate with caution.
Unfortunately in divorce, it’s fairly common for two parties to enter a ruthless custody battle. When this happens, one spouse might start to discover their appointed GAL isn’t advocating for their wishes for the child, which might result in that spouse requesting for the GAL to be removed from the case entirely. It is nearly impossible to have a GAL removed from a family court case merely on the request of one of the party’s. Here are the potential risk factors you face if your request for removal is denied:
If you feel strongly that your GAL should be removed, consider these options:
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 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.
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.
If you have questions about whether a GAL may be needed in your case and what to expect from a GAL investigation, please contact us to schedule a 100% confidential consultation.
933 N. Mayfair Rd., Suite 300
Milwaukee, WI 53226
M – F: 6:30am – 8pm
Sa – Su: 7:30am – 6pm