What Does a Guardian Ad Litem Do?

When parents are at odds over legal custody or physical placement, a lawyer might be appointed to represent the best interest of the child. That lawyer, called a Guardian ad litem, has special training to investigate and present evidence and information to the parties in the court.

When you’re going through a divorce, paternity case, post-judgment matter, or action affecting the family involving custody and placement, the last thing you want is contentious legal battle over your children. However, when the parties are unable to reach an agreement or resolution on these matters, the court will appoint a Guardian ad litem or GAL. The phrase “ad litem” is a Latin phrase that means “for the suit.” So, the GAL is the one who will represent your child’s best interests only as it relates to the current proceedings.

Issues Addressed by a GAL

In cases involving the children, the court must determine legal custody. In Wisconsin, this means “the right and responsibility to make major decisions concerning the child.” See Wis. Stat. § 767.001(2)(a). Major decisions include “decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for nonemergency health care and choice of school and religion.” See Wis. Stat. § 767.001(2m).

Second, the court must determine physical placement, meaning where the child will be physically placed each day and which parent has the right and responsibility to make, during that placement, routine daily decisions regarding the child’s care, consistent with major decisions made by a person having legal custody.” See Wis. Stat. § 767.001(5).

A GAL helps the court resolve both legal custody and physical placement. When negotiations between the parents break down, a court will intervene and appoint a lawyer to represent the child in these matters.

How a Guardian Ad Litem Works

Generally, a GAL is not appointed at the time the parties commence a case involving custody and placement issues. Instead, the court has discretion as to the timing of the GAL’s appointment. See Wis. Stat. § 767.407(2). The court needs to first determine whether a GAL is necessary or required by state statute to be appointed in the matter. For example, Wisconsin statute provides that the court shall appoint a GAL if “[t]he court has reason for special concern as to the welfare of a minor child.” See Wis. Stat. § 767.407(1)(a)1.

The court may wait to appoint a GAL until after the parents have attended mediation and attempted to resolve issues related to the minor children on their own. See Wis. Stat. § 767.405(12)(b). However, if the court sends the parties to mediation, it is not prohibited from making a temporary order [LINK TO AN ARTICLE ON TEMPORARY ORDERS HERE?] addressing custody and placement before the court appoints a GAL if a temporary order would be in the child’s best interest. See Wis. Stat. § 767.407(1)(e).

Importantly, a GAL represents the best interest of the child and not just the child’s wishes. See Wis. Stat. § 767.407(4). This is an important distinction because what the child wants might not always be what is best for that child. It’s well possible the GAL may come to a different conclusion than the child might about their (the child’s) best interests. For example, a child who equally loves both parents and wants to spend time with them, but one parent has a substance abuse problem, such that the child might not always be safe under that parent’s care.

A GAL is an independent attorney and not a witness, just like the attorneys representing the parents. Therefore, while the GAL may make recommendations to the parties and take a position as to legal custody and physical placement with the court, the GAL is not a witness and should not be testifying in court regarding their investigation. As they are not a witness, they are not subject to cross examination, like the parties are.

.The GAL begins a process of informal discovery. They spend time talking to the child. They talk with both parents and observing the child’s interactions with each parent. They may ask the parents to sign releases to speak with anyone else who might have significant information. This can include teachers, coaches, neighbors, therapists (for the child and the parents), and anyone one else close to the family. The GAL may review any medical records, including mental health, to get the fullest possible view of the child’s life and their best interests.

If necessary, the GAL can undergo formal discovery. This can include depositions with relevant parties–testimony that is given under penalty of perjury – written requests (interrogatories and requests for production of documents), and issuance of subpoenas to obtain relevant information.

If necessary, the GAL may seek to hire their own experts to help in their determination – such as a psychologist to perform psychological evaluations of the parties.

After discovery ends, if the parties agree to mediate the issues, the GAL will attend mediation as well, presenting his or her position to the mediator and the parties. If the parties are unable to reach a resolution, the matter will be set for a trial and the GAL will call witnesses to help them present their findings and position to the court. The court will then make a determination based on the evidence presented to it by the GAL and the parties. While the GAL’s opinion will carry weight with the court, the court makes its own, independent determination, which may differ from what the GAL requests.

Who Pays for the Guardian Ad Litem?

The court determines who pays for the GAL’s time. How this payment is made and the GAL’s fees varies. Quite often, the fees are split between the parties, but if one party does not have an income and is unable to pay, the other may be ordered to pay the entire GAL bill. Spouses not in a position to absorb these costs can receive assistance from the county–although please note that the county will usually expect to be repaid.

Balisle Family Law Legal Counsel, S.C knows how hard it can be to go through an action involving your children.. We have extensive experience representing parents in these matters. We can put that experience and compassion at your disposal. Call us today at (608) 765-1001 or contact us online to set up an initial consultation.