The role of the Guardian ad litem in Wisconsin
I am in Door County at the annual family law work shop for the State Bar of Wisconsin; there was a presentation the other day on the role of guardian ad litems in Wisconsin and how to improve the process.
A guardian ad litem is appointed by the court where there is a contested issue as to custody or placement of a minor child or where there is otherwise special concern or issues involving a minor child.
A guardian ad litem is appointed by the court to advocate for the best interests of a minor child. They act in a quasi-judicial capacity. They cannot be sued for malpractice on making their recommendations to the court or in their capacity as a court appointed guardian ad litem for the children.
Their authority is vested in the statute. They act as an attorney and do not testify during the court proceedings. They have the right to question witnesses, use exhibits, present witnesses , make arguments, evidentiary objections and participate in all court hearings.
They are expected to make a full and detailed investigation and be prepared to make a recommendation to the court on custody and placement. This ordinarily requires the guardian ad litem to meet both parents separately, and perhaps several times during the course of their investigation, meet the children and talk to them, where age appropriate, and perhaps several times during the representation; they are to check the Wisconsin circuit court access site to view each party’s criminal and civil court history. They are to talk to collateral sources, where necessary, such as other family members, teachers, friends or anyone who may be able to assist the guardian ad litem in making a recommendation to the court.
If there has been domestic violence, pursuant to the statute, they are to fully investigate those issues and report back to the court on how that affects custody and placement of the children. The guardian ad litem is expected to be neutral and objective throughout the case. The guardian ad litem is to convey to the court the wishes of the children, even where the guardian ad litem may disagree on what those wishes are.
The guardian ad litem 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.
The guardian ad litem should review all pleadings (legal papers) in the case and also can 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 guardian ad litem should be fully prepared to make their recommendation to the court. If required by the court to do so in writing, as opposed to a verbal recommendation, the guardian ad litem should preferably do it in the form of a trial brief or proposed court orders.
The guardian ad litem should make their recommendation individually to the facts and evidence in the case, recognizing the polestar of any recommendation, is the best interests of the minor children. The recommendation should also be based on the law with a full understanding of the impact of domestic violence issues in the case and the knowledge that under Wisconsin law, the court is obligated to allocate significant and meaningful periods of placement to both children.
When you have a guardian ad litem who does all of these things, they will have fulfilled their role and obligation in advocating for the best interests of the minor children.
In my next blog, I will be discussing what a guardian ad litem shouldn’t be doing, including the question of whether a guardian ad litem should be serving as a mediator on the case.
If you have questions about custody of children or the role of the guardian ad litem, contact one of our experienced family lawyers at Karp & Iancu, S.C. for a free and confidential consultation.