If you find yourself in the midst of a divorce or legal custody and placement battle in Wisconsin, you may have heard the term Guardian Ad Litem, without knowing the role they play. The Guardian Ad Litem is legally defined as a guardian appointed by the court and designed to protect the interests of a minor or incompetent person in a particular matter. Here is Wisconsin, the Guardian Ad Litem is always a licensed attorney. According to Wisc. Stat. 767.407 the Guardian Ad Litem is appointed when the following occur:
- The court has reason for special concern as to the welfare of a minor child.
- The legal custody or physical placement of the child is contested.
More specifically, and pursuant to 767.407(4), the Guardian Ad Litem shall:
- Advocate for the best interests of a minor child as to paternity, placement, and support.
- Consider, but not be bound by, the wishes of the minor child or the positions of others as to the best interests of the minor child.
- Consider the best interests of the child factors under Wisc. Stat 767.41(5).
- Investigate whether there is evidence that either parents have engaged in interspousal battery or domestic abuse, and report the results to the court.
- Review and report any mediation agreement and/or stipulation, or any parenting plan.
- Unless the child otherwise requests, communicate to the court the wishes of the child.
Once the Guardian Ad Litem is appointed, how do they proceed?
The first thing that takes place is a ‘conflict’ check. It is important for the Guardian Ad Litem to have no connections to either of the parties in order to ensure that he/she remains unbiased. Next, they begin their investigation by gathering the basic facts, along with other useful information. This will ultimately result in a recommendation that provides the court with insight into custody and placement.
This recommendation usually comes from the Guardian Ad Litem’s research into prior court pleadings, interviews with the parents, conversing with collaterals (outside agencies, etc.) when necessary, and interviewing the child if appropriate. Since there is no blueprint for how the Guardian Ad Litem should proceed, each case will generate a distinct set of facts and circumstances. Thus, what may be appropriate for once case may not be appropriate for another.
Once the Guardian Ad Litem is appointed, what do I do?
The Guardian Ad Litem’s recommendation typically aligns more with one parent’s interests over the other. This alignment is not because of favoritism. Rather, it is the product of a Guardian Ad Litem’s investigation, which includes: 1) review of the case history 2) analysis of the evidence and documentation provided, and 3) incorporating the best interest factors into their recommendation.
Therefore, your responsibility as a parent is to make sure you provide concise, pertinent documentation and evidence to the Guardian Ad Litem. Doing nothing can be risky, as you are placing your confidence in the Guardian Ad Litem to align with your position with no documentation. But there is no guarantee the Guardian Ad Litem would ever learn of, or find evidence to support, your position without you providing documentation of that evidence. Therefore, be proactive.
Also, do not be discouraged in the event that a Guardian Ad Litem is appointed to your case. Instead, have a plan, stay focused, and participate in the process. When I describe what a Guardian Ad Litem is to a new client, I use the analogy that they are a judge’s eyes outside the courtroom. Judges does not have the ability to do their own investigation in every case. That is why the Guardian Ad Litem is appointed. As such, Guardian Ad Litem recommendations are welcomed by judges.
Here at J.G. Law, we value our ability to advocate for our clients. If you are in a contested divorce or have a legal custody and placement dispute where a Guardian Ad Litem has been appointed, give us a call to discuss how we can help you navigate through this sometimes-daunting process.