Commentary: Representing the child's best interest, not the child.

• Author: Herman, Gregg

Byline: Gregg Herman

Last week, I discussed a meeting which occurred in April 2007, during the spring meeting of the ABA Family Law Section in Monterey, Calif., 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 centered 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, or GAL, 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...