GAL Case Analysis

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The decision makes some issues clear, but opens up some new questions.

The decision makes clear that, where physical placement or custody is disputed, appointment of a guardian ad litem is mandatory, and that a judgment is invalid if none was appointed, even if neither parent objected.

The decision also sets forth guidance when this happens: the parties need not start over from scratch. Instead, the circuit court’s order shall convert to a temporary order, pending final disposition.

In a footnote, the court wrote, "We do not intend that the parties be able to re-litigate the placement dispute. They should, of course, have the opportunity to respond to the guardian ad litem’s report and recommendation. Whether written responses will suffice, or whether further in-court proceedings will be necessary or appropriate, and the scope of such proceedings, if any, are matters within the circuit court’s discretion."

Other issues are unclear. In this case, the party denied primary placement filed a timely appeal. But what if he had not?

Suppose, after the deadline for filing an appeal had passed, a parent comes into your office, and you notice that a GAL should have been appointed, but wasn’t. The court of appeals would have no jurisdiction to reverse the judgment, so any action would have to occur in circuit court.

But should you seek modification of the judgment, pursuant to sec. 767.325, or move to reopen the judgment, pursuant to sec. 806.07?

If the initial order is null and void, because no GAL was appointed, then proceedings can be reopened as a matter of right, pursuant to sec. 806.07(1)(d), but only if the motion is brought within one year.

If the failure to appoint a GAL when it was mandatory only makes the judgment voidable, then you would have to meet the vaguer standard of subsec. (1)(h): "other reasons justifying relief from the operation of the judgment." Again, however, this would have to be done within one year, pursuant to subsec. (2).

If more than a year has passed, the error would seem to be incapable of correction. A party can always seek to modify the judgment, pursuant to sec. 767.325. However, the standards are stringent: within two years of the judgment, the movant must show the child’s current conditions are harmful; after two years, the movant must show the change is in the child’s best interests, and that there has been a substantial change of circumstances.

A procedural error in the original proceeding, even one as important as appointment of a GAL, clearly does not qualify.

Another interesting question is what the result would be if a GAL was appointed, but his performance was wholly deficient. Subsection (4) of the statute lists the duties of a GAL, and the statute provides that the GAL "shall" perform them.

The language is mandatory, just like the language in subsec. (1), that a court "shall" appoint the GAL when physical placement or custody is in dispute.

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Of course, a non-prevailing party can argue on appeal that a judgment must be reversed because, even though the court appointed a GAL, the GAL failed to perform as required. But suppose the party failed to object at the trial level.

Is the objection waived, or is the failure of a GAL to perform his mandatory duties an objection that cannot be waived by a parent, because the GAL’s job is to protect the child, rather than the parent. The reasoning of the court in the case at bar, taken to its logical conclusion, would suggest that the objection cannot be waived.

So, even though the opinion is very straightforward on the surface, there are thorny questions remaining underneath.

Finally, it should be noted that the statute at issue will be amended at the end of this month. Section 767.045 will be renumbered sec. 767.407, effective Jan. 1, 2007.

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David Ziemer can be reached by email.