Kaplan Law Firm S.C.

10200 North Port Washington Road, Suite 100

Mequon, WI 53092

 

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Guardianship

Introduction

Deciding how your family will be restructured to best

meet the needs of your children during and after divorce

or upon a court determination of paternity is perhaps the

most important decision you, as a parent, will make. Legal

custody, physical placement, and child support issues must

be decided to ensure that your children’s needs continue

to be met. “Legal custody” means making major decisions

affecting your children, such as medical care, education,

and religion. “Physical placement” means the amount of

time your children will spend with each parent. “Child

support” means providing for your children’s financial

needs.

If parents have disagreements, they must participate in

mediation to help them resolve issues. If parents still don’t

agree, the court will appoint a guardian ad litem (GAL) to

assist the court in making custody, placement, and support

decisions.

This brochure answers commonly asked questions

about the guardian ad litem’s role in the divorce or paternity

process.

What is a guardian ad litem (GAL)?

A GAL is an attorney, licensed to practice law in

Wisconsin. The GAL’s role is to represent the best interests

of the children as determined by the GAL through an

investigation.

The GAL will investigate the facts, participate in negotiations,

and take a position in court on legal custody and

placement. The GAL is also involved in the financial issues

of a case when those issues affect the children, such as

child support and child expenses. The GAL does not have

any of the rights or duties of a parent or general guardian.

Although the GAL may be incorrectly referred to as the

children’s attorney, the GAL’s role is to advocate for the

best interests of the children. This may not be the same as

advocating for what the children want.

What determines whether a GAL

becomes involved in a case?

When parents cannot agree on custody or placement, the

court must appoint a GAL. The parents must first try mediation

to reach an agreement. The court may waive that

requirement in specific legal circumstances. If no agreement

is reached, the court will appoint a GAL to assist the

court in deciding custody or placement. The court also

will appoint a GAL if the court has special concern for

the welfare of a minor child. The court can appoint a GAL

any time in the proceeding when the best interests of the

children are at issue. The exception is in a modification

proceeding if the proposed modification would not substantially

alter the placement times. In that situation, the

court may find that a GAL would not assist it in making its

orders.

How is a GAL appointed?

A GAL is appointed by a family court commissioner or

judge, usually upon request of one of the parents. The procedure

varies – some counties have lists of attorneys who

take GAL appointments, other counties have contracts

with specific attorneys for GAL appointments.

What is the GAL’s role?

In representing the best interests of the children, the GAL

may negotiate settlements, conduct formal and informal

discovery, hire experts, interview witnesses, investigate

whether there has been violence or abuse between parents,

comment on proposed parenting plans or any stipulation

or mediation agreement reached by the parties and

participate in all court proceedings. Either party may

request a status hearing before the court on the actions

taken and work performed by the GAL any time after 120

days from the GAL’s appointment.

Will the GAL meet with my child and me?

The GAL will meet with both parents, usually separately

and in the GAL’s office. The GAL will generally meet with

your child. The GAL will decide when and where to meet

with your child, which could be in the GAL’s office, each

parent’s home, or another location. The child's input will

be only one factor for the GAL to consider. It gives the

child a voice, not a choice, in the outcome.

How does the GAL investigate

issues that affect my child?

Because the GAL is an attorney, the GAL investigates

facts that are relevant to the issues in your case. Much of

the investigation is called “informal discovery,” which is

conducted through interviews with each parent, the child,

or other people with significant information. You may also

be asked to sign a release authorizing the GAL to review

relevant records, such as school, medical, or mental health

records.

The GAL may ask other experts, such as a social

worker or a psychologist, to provide input and possible

future testimony regarding the case. If there are problems

with alcohol or drugs, the GAL may ask a parent to participate

in screening tests or ask the judge to order such tests.

The GAL also may use “formal discovery” to assist in

the investigation, including interrogatories, requests for

document production, or conducting depositions.

 

 

What factors does the GAL

consider in the investigation?

In investigating and developing input for the court’s

consideration, the GAL must consider the following legal

factors:

• the wishes of your child and both parents;

• whether a parent has engaged in a pattern or serious

incident of violence between parents;

• the safety and well-being of the child and the safety

of the parent who was the victim of the battery or abuse;

• your child’s interaction and relationship with you

and other family members;

• the amount and quality of time you have spent with

your child in the past;

• any necessary and reasonable custodial and lifestyle

changes you propose to make to spend time with your

child in the future;

• your child’s adjustment to home, school, religion,

and community;

• your child’s age and developmental and educational

needs at various ages;

• the mental or physical health of a parent, the

child, or other person living in the proposed custodial

household;

• the need for regularly occurring and meaningful

placement to provide predictability and stability for your

child;

• the availability of child care services;

• the cooperation and communication between

parents and whether either one unreasonably refuses to

cooperate or communicate with the other;

• each parent’s ability to support the other parent’s

relationship with the child and the likelihood a parent will

interfere in the other parent’s continuing relationship with

the child;

• any physical abuse or problems with alcohol or

drugs;

• the reports of appropriate professionals; and

• other significant factors that would affect your

child’s well-being.

What happens when the GAL

completes the investigation?

The GAL generally will give the parents and/or attorneys

a preliminary summary of what the GAL will present to

the judge. The input could change depending on additional

evidence or facts that are uncovered. Generally, the

parents’ attorneys will discuss the GAL’s preliminary recommendations

with their clients. Most often, settlement

proposals are exchanged, and the case is resolved by agreement.

If the parents cannot agree, the case is prepared

for trial before the judge, who will consider the evidence

presented and make the final decision.

Who pays for the GAL?

The judge decides who pays for the GAL’s services. The

requirements vary from county to county. Generally, each

parent is responsible for one-half of the GAL’s total costs,

including the GAL’s legal fees and investigation costs, such bas tests and experts. The court also may require the parents to pay an initial deposit and periodic payments to the GAL during the case. If the judge decides that both parents are unable to pay for the GAL’s services immediately, the judge may have the county pay the GAL bill. However, the parents still are responsible for the GAL fees and the county may require the parents to reimburse the county.

Can I change GALs?

There are very limited circumstances in which a new GAL

would be assigned to your case. Disagreement with the

GAL’s recommendations is not a valid reason to request

removal. Only the judge can remove a GAL.

How long will the GAL be involved in my case?

By statute, the GAL serves in a case until either the parents  reach a written agreement resolving the issues and the judge approves it, or there is a hearing and the judge

decides the case. The judge can discharge the GAL if one

is no longer necessary. If your case is appealed, the GAL is

involved in the appeal process unless the court orders otherwise. If a new motion is filed in your case in the future, the judge may reappoint the same or a different GAL.

 

This is one in a series of consumer information pamphlets

published by the State Bar of Wisconsin.

Answering your legal questions about

guardians ad litem

What is a guardian ad litem? What is the GAL's role?

Who pays for the GAL?