Legislative Watch

Tweaking Wisconsin's Guardian ad Litem System
Pending Legislation

by Mark Gundrum & Kim Plache

BEGINNING LAST FALL, REP. Mark Gundrum and Sen. Kim Plache led a 19-member committee in a review of Wisconsin's Guardian ad Litem (GAL) system. This Special Committee on GALs was directed to study the appointment, role, supervision, training, and compensation of Gals; make legislative recommendations; and petition the Wisconsin Supreme Court regarding proposed changes. The review was not intended as a major overhaul of Wisconsin's GAL system, but rather as a tweaking to improve the current system where possible.

After hearing testimony from invited guests with a wide array of experience with Wisconsin's GAL system, the committee concluded that Wisconsin's present system works well, but could be improved in several ways.

Proposed Legislation

Rep. Mark Gundrum, U.W. 1994, chairs the Assembly Judiciary Committee, is vice chair of the Assembly Criminal Justice Committee, and a member of the Civil Trial Council of Wisconsin. Gundrum (R-New Berlin) represents the 84th Assembly District.

Sen. Kim Plache (D-Racine) is a member of the Joint Finance Committee. She represents the 21st Senate District.

GAL Compensation. Legislation is being advanced to clarify the current statutory provision governing GAL compensation to provide that when parties are ordered to pay GAL compensation, they may be ordered to pay the GAL directly, pay into an escrow account from which the GAL will be paid, or reimburse the county if the county has paid the GAL's compensation. The legislation also permits a court to order an income withholding pursuant to Wis. Stat. 767.265 or a separate judgment, for the amount of the reimbursement in favor of the county or the GAL and against the responsible party.

Parenting Plans and Mediation. The proposed legislation directs clerks of court to provide instructions for completing and filing a parenting plan under Wis. Stat. 767.24(1m), without charge, to any person filing a petition or receiving a summons in an action affecting the family. Unless the court orders otherwise, parties would be required to file a parenting plan with the court within 60 days after the court waives the requirement to attend mediation or 60 days after the mediator notifies the court that the parties have not reached an agreement. The legislation also requires the mediator to review the nonfinancial provisions of the parenting plan with the parties at the initial mediation session.

Fee Collection. The legislation permits a court (or family court commissioner) to order an income withholding to collect fees for mediation services and custody and placement studies.

Educational Programs. The legislation requires the court, during the pendency of an action involving a minor child, to order the parties to attend an educational program that includes at least four hours of instruction or training in any of the following areas that the court deems appropriate: effects of divorce on a child; working together in the child's best interest; parenting or coparenting skills; consequences of stipulating to a custody and placement arrangement and of resolution of disputes by the court; available mediation; the provisions of section 767.24, Stats. (parenting plans, custody, and physical placement); the appointment, duties, and responsibilities of Gals in representing the child's best interest; the financial expenses of representation by an attorney, mediation, custody and placement studies, fees and expenses of a GAL, including expert witnesses; costs of mental or physical examinations; and any other costs, fees, or expenses that may be incurred during litigation.

Under the proposal, however, parties may not be required to attend the program, or may instead be required to attend separate sessions of the program, if the court finds that attending would cause undue hardship or endanger the health or safety of one or both of the parties. Absent such a finding, the court may require attendance at the educational program as a condition of granting the final judgment or order. The court also may refuse to hear a custody or physical placement motion of a party who refuses to attend a program that he or she has been ordered to attend.

Other Committee Recommendations

The committee sent a letter to the Joint Legislative Audit Committee, requesting an audit of: 1) state compensation to counties for the cost of GAL services for indigent persons; 2) recoupment by counties of payments for GAL services from persons responsible for those costs; 3) implementation and funding of family court counseling services; 4) the cost savings, if any, associated with timely and effective mediation; 5) whether low-income families receive mediation at a later stage of the process because they are unable to pay an up-front charge for the services; and 6) whether flat fees for mediation and custody services should be replaced by sliding scale fees.

The committee wrote to the Wisconsin Supreme Court's Judicial Education Committee, recommending that the committee include in its judicial education programs information on the importance of judges: 1) clearly communicating their expectations to the GAL; 2) ensuring that the parties understand that the GAL is appointed by the court to represent and advocate for the child's best interests; and 3) asking the GAL about actions taken and work performed in the matter and providing feedback to the GAL on his or her performance, while respecting supreme court rules regarding ex parte communications.

In addition, the committee requested that the State Bar of Wisconsin consider providing continuing legal education for Gals on: 1) maintaining impartiality and avoiding assessing facts or taking a position based on personal biases such as gender, socio-economics, religion, or race; 2) mental health and other similar issues for children and families experiencing divorce; and 3) skills in interviewing children. The committee also requested that the State Bar prepare a videotape to inform parties of the steps involved in a contested custody or visitation dispute and what they can expect financially. The videotape should clearly explain the role of the GAL to the parties, while emphasizing how conflict in the process can impact the parties and their children. The committee further requested that the State Bar coordinate or facilitate mentoring for new attorneys practicing as Gals

The committee also petitioned the Wisconsin Supreme Court, requesting that the court amend the Supreme Court Rules relating to Gals by creating new eligibility requirements for attorneys who accept GAL appointments, and requiring the Board of Bar Examiners to approve continuing legal education (CLE) courses for family law Gals that cover specified subjects. As amended, the rules would require that family law Gals attend six hours of GAL CLE during the combined CLE reporting period and the immediately preceding reporting period, three of which would be in family court GAL education. As under current rules, a court also could determine that an attorney is otherwise qualified for a GAL appointment.

Family court GAL courses would have to address: proceedings under chapter 767; child development and the effects of conflict and parental alienation on children; children's mental health issues in divorcing families; the dynamics and impact of family violence; and sensitivity to various religious backgrounds, racial and ethnic heritages, and issues of cultural and socio-economic diversity.

Wisconsin Lawyer