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Representing the Child's Best Interest, Not the Child

By Atty. Gregg Herman

As it appeared in the July 23, 2007 edition
of the Wisconsin Law Journal

Last week, I discussed a meeting which occurred in April, 2007, during the spring meeting of the ABA Family Law Section in Monterey, California, when groups of lawyers from the ABA Family Law Section and the ABA Litigation Section met with representatives of The National Conference of Commissioners on Uniform State Laws (NCCUSL) to discuss the role of lawyers representing children in family law cases.

The dispute centers around the issue of whether lawyers should serve in roles different from that of traditional client representation.

This is the second in a series of articles discussing the role of the Guardian ad Litem, with this article concentrating on the role of the GAL in Wisconsin.

The ‘Best Interests’ Concept

As discussed last week, part of the dispute regarding the role of the GAL focuses on whether a lawyer should perform in a non-lawyer role.

Usually, a lawyer represents a client. In Wisconsin, on the other hand, a GAL represents the “concept” of the best interests of the child. If the GAL’s opinion as to the best interests of the child differs from the child’s wishes, it is the GAL’s role to advocate his or her opinion of the child’s best interests. Weiderholt v. Fischer, 169 Wis. 2d 524, 485 N.W.2d 442 (Ct. App. 1992). Even if the child is 17 years old and has mature reasons for his or her wishes, the child is not entitled to an advocate for those wishes. Joshua K. v. Nancy K, 201 Wis. 2d 655, 549 N.W.2d 494 (Ct. App. 1996).

In some counties, like Waukesha and Racine, usually a family court counseling social worker will perform a study, resulting in an opinion as to custody and physical placement. While the GAL is under no obligation to make the same recommendation as the social worker, typically the GAL does so. The GAL can call the social worker as a witness who is subject to cross-examination. The effect is that the GAL is essentially representing the position of the FCCS worker, a role for which the lawyer is well-suited.

If the GAL does not agree with the recommendation of the social worker (or, as in Milwaukee County, there is no family court counselor with whom to agree or disagree), the GAL does the entire investigation by him- or herself. In addition to the GAL performing, for the most part, non-legal services, the GAL is not a witness at trial and is not subject to cross-examination. Hollister v. Hollister, 173 Wis. 2d 413, 496 N.W.2d 642 (Ct. App. 1992). Since in the vast majority of cases, the trial court follows the recommendation of the GAL, the result may be highly frustrating for parents as the proceedings take on almost a “star chamber-like feeling,” where the future of their children is decided behind closed doors by someone not professionally trained to make that decision.

To make matters worse, there are few available remedies for parents who feel the GAL did not adequately perform his or her services. GALs have absolute quasi-judicial immunity from negligence liability for acts within the scope of their statutory responsibilities. Paige K.B. v. Molepske, 219 Wis. 2d 418, 580 N.W.2d 289 (1998). Since the role of the GAL and the concept of “best interests” are so amorphous, almost all acts are within that scope. To my knowledge, there are no counties which have any peer review of GAL performance, or even a survey of participants. The court might have no idea whether the GAL is performing in a satisfactory manner. Therefore, there is usually no recourse if a GAL has performed an inadequate investigation or, as rarely but sometimes occurs, no investigation at all.

The GAL In Litigation

If the matter is contested, in court the GAL functions in the same manner as the lawyers for the parties. The GAL’s statements are not evidence and cannot form the basis of a trial court’s order. In re Paternity of Stephanie R.N., 174 Wis. 2d 745, 498 N.W.2d 235(1993); Goberville v. Goberville, 2005 WI App 58, 280 Wis. 2d 405, 694 N.W.2d 503.

Therefore, in a contested proceeding, the GAL role is consistent with the GAL’s education and training. Practically speaking, however, this rarely happens. Since both parents know that the trial court is highly likely to follow the recommendation of the GAL, in most cases a contested trial is little more than a contested guilty plea. Therefore, the vast majority of case are resolved short of litigation.

As advocate for best interests, the GAL does not have to advocate for the child’s wishes. For children of tender age, this is not a problem, as no one expects a 5-year to control his or her destiny. For teenagers, however, this role may be problematic.

Where a child does wish to have input, the GAL does not have to make a recommendation consistent with those wishes. The effect may have the child and the GAL on different pages. For headstrong children with access to cars, this can cause massive problems - try telling a 16-year old with a car to be somewhere he or she does not want to be. In addition, it may leave the child feeling unrepresented - an accurate feeling under Wisconsin law.

This is not to argue that Wisconsin’s role for the GAL is necessarily bad. In most cases, GALs takes their roles very seriously and perform outstanding service to the courts and the children.

Still, the system is not perfect and in the next article in this series, we will look at other roles for lawyers for children.

Next: What's the Proper Role of the Attorney Serving as GAL?

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