There is probably not a day that goes by that I am not responding to a question on AVVO or Lawyers.com about a party going through a divorce and a bitter custody battle, complaining that the Guardian ad litem is not doing their job, is biased, and wants them removed from the case.
I thought it might be interesting today to explore the rules and laws as it applies to a Guardian ad litem and how one even gets to be appointed.
Supreme Court Rule 20:4.5 Guardians ad litem, reads as follows:
“A lawyer appointed to act as guardian ad litem or as an attorney for the best interests of an individual represents, and shall act in, the individual’s best interests, even if doing so is contrary to the individual’s wishes. A lawyer so appointed shall comply with the Rules of Professional Conduct that are consistent with the lawyer’s role in representing the best interests of the individual rather than the individual personally.”
The footnote to the rule reads as follows: “This rule expressly recognizes that a lawyer who represents the best interests of an individual does not have a client in the traditional sense but must comply with the Rules of Professional Conduct to the extent the rules apply.”
How does one become eligible to be a Guardian ad litem?” Supreme Court rule 35.01 deals with that issue as well:
SCR 35.01 ELIGIBILITY TO ACCEPT AN APPOINTMENT. “Commencing on July 1, 1999, a lawyer may not accept an appointment by a court as a guardian ad litem for a minor in an action or proceeding under chapter 48 or 938 of the statutes unless one of the following conditions has been met:
(1) The lawyer has attended 30 hours of guardian ad litem education approved under SCR 35.03.
(2) The lawyer has attended 6 hours of guardian ad litem education approved under SCR 35.05 during the combined current reporting period specified in SCR 31.01 (7) a the time he or she accepts an appointment and the immediately preceding reporting period.
(3) The appointing court has made a finding in writing or on the record that the action or proceeding presents exceptional or unusual circumstances for which the lawyer is otherwise qualified by experience or expertise to represent the best interests of the minor.”
There is also a specific legal education requirement for Guardian ad litems serving in family law cases when a couple are getting a divorce, under Chapter 767 of the Wisconsin Statutes.
SCR 35.015 ELIGIBILITY TO ACCEPT AN APPOINTMENT. “Commencing on July 1, 2003, a lawyer may not accept an appointment by a court as a guardian ad litem for a minor in an action or proceeding under Chapter 767 of the statutes, unless one of the following conditions has been met.
(1) The lawyer has attended 6 hours of guardian ad litem education approved under SCR 35.03 during the combined current reporting period specified in SCR 31.01 (7) at the time he or she accepts an appointment and the immediately preceding reporting period. At least 3 of the 6 hours shall be family court guardian ad litem education approved under SCR 35.03 (1m).
(2) The appointing court has made a finding in writing or on the record that the action or proceeding presents exceptional or unusual circumstances for which the lawyer is otherwise qualified by experience or expertise to represent the best interests of the minor.”
What does this all mean? Lawyers must take continuing legal education credits to maintain their law license. Every two years, lawyers are required to take a minimum of 30 CLE credits to maintain their license. Failure to do so can result in the lawyer’s license being suspended. If you want to serve as guardian ad litem, you need to take 6 credits out of the 30 required every two years that specifically requires guardian ad litem training. 3 out of those 6 credits must be in courses approved under the ethical rules. You also must do this every two years. It is not a one time shot. The only exception would be under SCR 35.015 (2) with a lawyer who may be serving as a guardian ad litem who has many years of experience and has handled thousands of cases. Without actually meeting the CLE requirement, the attorney may be considered “grandfathered” in but the court has to make a specific finding on the record why this particular attorney is being appointed and not required to take continuing legal education courses. This would obviously rule out any new lawyer or lawyer with limited legal experience.
Sec. 767.045 (4) defines the role of the guardian ad litem in Wisconsin. “The guardian ad litem must be an advocate for the best interest of a minor child as to paternity, legal custody, physical placement and support. The guardian ad litem must function independently, in the same manner as an attorney for a party to the action, and must consider, but is not bound by, the wishes of the minor child or the positions of others as to the best interests of the minor child. The guardian ad litem must consider the factors under the custody statute, and any custody studies.
The guardian ad litem shall review and comment to the court on any mediation agreement and stipulation made. Unless the child otherwise requests, the guardian ad litem must communicate to the court the wishes of the child as to the child’s legal custody or physical placement. The guardian ad litem has none of the rights or duties of a general guardian.
A guardian ad litem appointed under s. 767.407, may not be called as a witness in a custody proceeding and therefore may not be cross examined. A guardian ad litem functions as an attorney. The guardian ad litem is required to communicate with the court in the same manner as a lawyer for a party would and present information through the presentation of evidence. A guardian ad litem appointed by a circuit court under s. 767.407 is absolutely immune from negligence liability for acts within the scope of that guardian ad litems’ exercise of statutory responsibilities.
A guaridan ad litem must be an attorney admitted to practice law in Wisconsin. No person who is an interested party in a proceeding, appears as counsel in a proceeding on behalf of any party or is a relative or representative of an interested party may be appointed guardian ad litem in that proceeding.
Where does the court find the guardian ad litem? Assuming all of the above rules and laws have been complied with, each county will have a list of eligible attorneys who have completed the required CLE training on a semi-annual basis, and the court will appoint an attorney from a working list that all of the judges in that county have access to. It may be an attorney that the court knows and has worked with many times in the past, or it may be someone the court has never met before and knows nothing about.
The guardian ad litem serves an extremely important role in being an advocate for the best interests of a minor child where custody or placement are disputed. If you have questions about the role of the guardian ad litem in Wisconsin, feel free to contact the experienced family lawyers at Karp & Iancu, S.C. today.
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