Guardians ad Litem Essential in Family Court

By Attorney Gregg Herman
April 29, 1999

The importance of the GAL’s role in family court cannot be overstated. The court, knowing that the GAL is entrusted to do an appropriate investigation, relies heavily on the GAL’s recommendation. A good GAL will settle most, if not all, custody and placement disputes. By settling these disputes, the harm to the child is, at worst, minimized and sometimes avoided altogether.

Perhaps as a result of the critical importance of the role, the GAL takes a lot of fire. While at the beginning of the case both sides try hard to make the GAL believe in the righteousness of his/her cause, by the end both sides typically end up disappointed that the GAL did not see the issues their way.

Of course, the disenchantment with the GAL arises from more than frustration with the legal system. Not all GALs perform appropriate investigations. Not all GALs truly understand child-related issues. As with any other role, not all GALs are diligent, insightful or motivated.

As a result, there are constant efforts to eliminate GALs in family court. On April 20, 1999, a public hearing was conducted on SB 107, the latest effort to eliminate GALs. The legislature heard numerous anecdotes of allegedly neglectful GAL performance. They did not hear, of course, of the far more instances where the GAL role was central to protecting the interests of the children. Parties whose children benefited from the GAL do not complain. And, of course, the children themselves have no advocacy group to speak on their behalf.

Further, if the GAL is eliminated, who speaks up for the child? The parents? They each have their own interests. The court? The court does not have the resources to conduct an investigation. Social workers? Get real – we don’t have any in Milwaukee County. Truth is, without the GAL, the children are left naked and abandoned, at the end of a long branch with no safety net.

This is not to say that much can be done to improve GAL performance. The State Bar Family Law Section has adopted recommended standards of practice for GALs. Effective July 1, 1999, the supreme court, which regulates GALs through its rule making procedures, will require that GALs in family court have taken approved training courses prior to accepting appointments. The Wisconsin Chapter of the American Academy of Matrimonial Lawyers and the State Bar of Wisconsin are cosponsoring a GAL training course on May 20 and 21 at the Country Inn in Pewaukee, with video replay throughout the state on June 16 and June 17 , 1999.

There is more than can still be done to improve GAL performance. Counties need to understand that they are not truly “saving” the taxpayers money by paying GALs starvation wages. By doing so, many experienced attorneys refuse to take such appointments. Many custody and placement cases involve issues of such complexity that there is no substitute for experience to effectively and efficiently perform the role of GAL.

This is not to say that our custody and placement laws are perfect. But, neither is life. And, little in life is more imperfect than parenting. Parenting, a role for which there is no law requiring training or licensing, is incredibly complex and difficult. Custody cases are no less complex and difficult. To treat them by application of a ritualistic formula does children no good.

Legislators like simplistic solutions. They allow politicians to claim they are “solving problems.” Not in this case. Custody problems cannot be “solved.” They have been with us forever and will be with us forever.

The best “solution” any state has come up with is to empower the court with wide discretion to consider the complex, individual facts in each case and provide the court with the resources to do so. SB 107 promotes exactly the opposite.

This article originally apppeared in Wisconsin Opinions.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.