A guardian ad litem, commonly called a GAL, is a Wisconsin attorney appointed by the court to advocate for the child's best interests. The GAL does not represent either parent and is not required to adopt the child's preferred outcome.
The GAL independently considers the statutory best-interest factors, the parties' parenting plans, any custody study, and other information relevant to legal custody and physical placement. The GAL must investigate whether either parent has engaged in domestic abuse or specified forms of interspousal violence and report the results to the court. The GAL also reviews and comments on custody and placement agreements reached through mediation.
A GAL may communicate with the child, the parents, attorneys, teachers, healthcare professionals, counselors, relatives, and other people who have relevant information. The precise scope of the investigation depends on the issues presented and any directions contained in the appointment order.
The GAL must consider the child's wishes but is not bound by them. Unless the child requests otherwise, the GAL communicates the child's custody or placement wishes to the court. The GAL then advocates for the result the GAL believes serves the child's best interests, even when that position differs from what the child or either parent wants.
The GAL does not decide the case. The court makes the final custody and placement decision after considering the evidence, applicable law, and the GAL's position. A GAL must be appointed in many contested custody and placement cases, although Wisconsin law contains exceptions in some postjudgment modification proceedings.
How does a guardian ad litem investigate a custody case?
A guardian ad litem’s investigation is designed to gather enough reliable information to advocate for the child’s best interests on the issues before the court. The precise scope varies with the case, the appointment order, and the disputed issues.
A GAL may interview the parents and child, review court records and relevant documents, speak with teachers, counselors, health-care providers, relatives, or other collateral sources, and examine information concerning the child’s needs, each parent’s caregiving role, family relationships, safety concerns, and the statutory best-interest factors.
The GAL is not required to accept either parent’s version of events and does not serve as an investigator for one side. The GAL evaluates competing information, considers credibility and relevance, and develops a position based on the child’s best interests.
The GAL must also consider the child’s wishes as required by law, but the GAL’s recommendation is not necessarily the same as the child’s preference. The court makes the final custody and placement decision.
Primary Wisconsin authorities: Wis. Stat. §§ 767.407 and 767.41.
The guardian ad litem represents the child’s best interests, not the child in the same way an attorney ordinarily represents an adult client. That distinction is important.
An ordinary attorney-client relationship is generally directed by the client’s lawful objectives. A GAL independently determines what position the GAL believes serves the child’s best interests after considering the evidence, statutory factors, and the child’s wishes. The GAL may therefore advocate for an outcome different from what the child says the child wants.
Wisconsin law nevertheless requires the GAL to consider and, in appropriate circumstances, communicate the child’s wishes to the court. The child’s age, maturity, circumstances, and the legal issues all affect how those wishes are considered.
The GAL also does not represent either parent. Communications with the GAL should therefore be approached with the understanding that the GAL is an independent participant in the case.
Does the court have to follow the GAL’s recommendation?
No. A guardian ad litem does not decide custody or physical placement. The GAL advocates for the position the GAL believes serves the child’s best interests, but the circuit court makes the final decision.
The judge may give the GAL’s position significant consideration because the GAL is appointed to investigate and advocate for the child’s best interests. However, the court must independently consider the evidence and apply the statutory best-interest factors. The court may accept the GAL’s recommendation, reject it, or reach a different arrangement.
Parents and their attorneys may challenge the factual basis or reasoning underlying a GAL’s recommendation through appropriate evidence, testimony, and legal argument. A disagreement with the GAL does not itself determine the outcome.
For that reason, a GAL recommendation is important but should not be confused with a court order.
Primary Wisconsin authorities: Wis. Stat. §§ 767.407 and 767.41.
Can I contact the guardian ad litem
Generally, yes. Parents and their attorneys commonly communicate with the GAL because the GAL needs information to investigate the child’s best interests. The manner of communication may depend on the GAL’s instructions, local practice, and whether a party is represented by counsel.
A parent should use communications with the GAL to provide relevant information rather than to engage in repeated advocacy, personal attacks, or attempts to pressure the GAL. Organized information, relevant records, and identification of useful collateral contacts are generally more helpful than high-volume communication.
A represented parent should ordinarily coordinate substantive communications with counsel. Parents should also remember that the GAL is not their attorney, and communications with the GAL are not the same as confidential attorney-client communications with their own lawyer.
The GAL may establish procedures for interviews, document submission, scheduling, and contact with the child.
In Wisconsin family cases, the court generally allocates responsibility for guardian ad litem fees between the parties, subject to statute, local procedures, the parties’ financial circumstances, and the nature of the appointment.
The court may require advance deposits and later allocate the final fees between the parties. The division is not necessarily permanent merely because each party was initially ordered to deposit an equal amount. Courts can address fee responsibility as the case develops.
When a party cannot afford a private-pay GAL deposit, county procedures and statutory provisions may become relevant. The availability and administration of county-paid or reduced-fee arrangements vary, and a party should raise inability to pay promptly rather than simply ignoring a deposit order.
GAL fees are separate from a party’s own attorney fees.
Primary Wisconsin authorities: Wis. Stat. § 767.407 and applicable county fee procedures.
