How Does a Wisconsin GAL Investigate a Custody Case?
When legal custody or physical placement is contested, Wisconsin courts often appoint a guardian ad litem, or GAL, to advocate for the child's best interests. The GAL is a Wisconsin attorney. The GAL does not represent either parent and does not simply advocate for whatever the child says he or she wants. The GAL functions independently and considers the child's wishes as one part of the best-interest analysis.
What does Wisconsin law require the GAL to consider?
Wis. Stat. section 767.407 requires the GAL to advocate for the child's best interests regarding paternity, legal custody, physical placement, and support. The GAL must consider the statutory best-interest factors in Wis. Stat. section 767.41(5)(am), subject to the domestic-abuse provisions that may alter how those factors are applied.
What does the investigation usually include?
The statute does not prescribe one identical investigation for every family. The scope should fit the issues in the case. Depending on the dispute, a GAL may interview the parents and child, review court filings and prior orders, examine school or medical information, speak with counselors, teachers, relatives, child-care providers, or other collateral sources, and consider the history of caregiving and the practical effect of competing placement proposals. The GAL may also examine communication between the parents and whether each parent supports the child's relationship with the other parent.
Domestic abuse must be investigated
Wisconsin law specifically requires the GAL to investigate whether there is evidence that either parent has engaged in domestic abuse or certain forms of interspousal battery and to report the results to the court. This is not a side issue. Findings involving domestic abuse can materially affect legal-custody presumptions, placement conditions, exchanges, and safety planning.
What about the child's wishes?
A child does not simply choose where to live. The child's wishes are one statutory factor. Unless the child otherwise requests, the GAL must communicate the child's wishes regarding custody or placement to the court. The weight given to those wishes depends on the child's age, development, reasons, circumstances, and the rest of the evidence.
Does the GAL review parenting plans and agreements?
Yes. Section 767.407 directs the GAL to review and comment to the court on mediation agreements and stipulations and on parenting plans filed under section 767.41(1m). A proposed agreement between parents does not eliminate the GAL's responsibility to consider the child's best interests when the GAL remains appointed.
Is the GAL a witness?
The GAL functions as an attorney advocating for the child's best interests, not as a traditional fact witness. Wisconsin appellate authority has emphasized that the GAL is an advocate rather than a court consultant or neutral fact-finder. The GAL may present evidence, question witnesses, make legal arguments, and give a recommendation or position to the court in the manner permitted by law and local practice.
Does the judge have to follow the GAL?
No. The circuit court makes the final legal decision. The GAL's position may be influential, but the court must exercise its own judgment and apply the statutory best-interest factors. A GAL recommendation is not a substitute for the court's findings.
Official Wisconsin resources
Wis. Stat. section 767.407 - Guardian ad litem for minor children: https://law.justia.com/codes/wisconsin/chapter-767/section-767-407/
Wis. Stat. section 767.41 - Custody, placement, and best-interest factors: https://law.justia.com/codes/wisconsin/chapter-767/section-767-41/
General information only. This page is not legal advice, and the application of Wisconsin law depends on the facts of each case.