WI Court of Appeals rules guardian ad litem must be appointed.

• Author: Ziemer, David

Byline: David Ziemer

When placement of a child is contested, appointment of a guardian ad litem is mandatory. The Wisconsin Court of Appeals further held on Dec. 7 that the failure to appoint one is an error that cannot be waived by the parties. C.L.F. was born in August 2000 to Myhia N. Fosshage and Chad L. Frey-miller. Fosshage and Freymiller separated the following year, after which they shared placement of C.L.F. equally. When C.L.F. reached school age, the shared placement plan became impractical, and each sought primary placement. Grant County Circuit Court Judge Robert P. VanDeHey appointed a GAL to represent the child's best interests. However, a week before the scheduled hearing on placement, the GAL withdrew due to a medical emergency. The parties agreed on the record to proceed with the hearing without a GAL. Freymiller suggested a follow-up report from a GAL, and the court stated it "would probably" enter an order for the first school semester and then get input from the guardian ad litem "whether he thinks that we need another hearing or whether we should allow the arrangement to continue." The court awarded primary placement to Fosshage, but did not indicate that future input from a GAL was contemplated. Freymiller appealed, and the court of appeals reversed in a decision by Judge David G. Deininger. The Statute Section 767.045(1) provides, in relevant part: "(a) The court shall appoint a guardian ad litem for a minor child in any action affecting the family if any of the following conditions exists: 1. The court has reason for special concern as to the welfare of a minor child. 2. Except as provided in par. (am), the legal custody or physical placement of the child is contested." Noting that it had already implicitly held that the statute mandates the appointment of a GAL when placement is contested, in Lofthus v. Lofthus, 2004 WI App 65, par. 30, 270 Wis. 2d 515, 678 N.W.2d 393, the court addressed the issue directly, and agreed that its assumption in Lofthus was correct. The court noted that the Legislature's use of the word "shall" indicates that appointment of a GAL is mandatory, rather than directory, and found nothing in the legislative history to suggest the contrary was intended. Instead, the court concluded that the inclusion of an explicit exception -- where the circumstances in paragraph (1)(m) are present (which neither...