There is great confusion as to what role the GAL serves. In Wisconsin, the guardian ad litem is not supposed to be a fact finder. That role is reserved for the Judge. Plain and simple, the guardian ad litem is an attorney that represents the “best interests” of a child. The GAL does not represent either parent. The GAL doesn’t even represent the child or the children.
The GAL’s role is that of an attorney, that is — to elicit testimony and offer exhibits, make objections, and make arguments supporting your client. Your client is a concept, the “best interests” of a child. The child is not your client. Moreover, guardian ad litems should not be allowed to testify and therefore, should not put himself or herself in that position. For example, a GAL should not make visits to the home to check out “home conditions” because doing so turns the attorney/GAL into a witness to testify about the home conditions. Let pictures, other witnesses, or social service workers talk about the home conditions.
The GAL speaks directly with the child and informs the Court of the “child’s wishes”. This is the one special additional role that the GAL has that a regular attorney (representing one parent) does not. However, since the GAL is not representing the child, but representing the “best interests” of the child, the child’s wishes may not match the GAL’s recommendation. For instance, if a child wants to live with his Dad because his Dad doesn’t make him do homework or doesn’t impose a curfew on the child, well, the child’s “best interests” may not be served by granting placement to Dad. Similarly, if a child wants to live with Mom because Mom promised the kid a car when the kid turned 16, the child’s “best interests” may not be served by granting placement to Mom.
To read a discussion on proper role of a guardian ad litem, please see Hollister, 173 Wis. 2d 413, 496 N.W.2d 642 (Ct. App. 1992)
** Entries posted on this Blog shall not be deemed legal advice. For individual attention to your particular legal situation, consult an attorney.** Attorneys Dan Murray and Barb Miller. Lawyers helping individuals with divorce, custody, placement, and family-law matters throughout Western Wisconsin and the Twin Cities eastern metro. www.millerandmurray.com