GAL must be appointed

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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. How-ever, 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 re-port 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 in-clusion of an explicit exception — where the circumstances in paragraph (1)(m) are present (which neither party contended in this case) — confirms that the Legislature intended that appointment be mandatory.

In addition, a Judicial Council Note following the text explains that “Sub. (1)(a) specifies the situations in which the court is required to appoint a guardian ad litem (emphasis added by court).”

Both parties had assumed that the decision to appoint a GAL is discretionary, pursuant to Bahr v. Galonski, 80 Wis.2d 72, 257 N.W.2d 869 (1977), but the court concluded Bahr was inapplicable.

The court noted that Bahr applied a predecessor statute that only concerned when the court has reason for special concern of the children’s welfare, and held it inapplicable to cases involving placement disputes.
Waiver

The court next held that an objection to the failure to appoint a GAL cannot be waived, nor lost pursuant to the invited error doctrine.

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The court reasoned, “The statutorily mandated presence and participation of a guardian ad litem in a contested custody or placement proceeding is intended to benefit the interests of the child or children whose future circumstances the parties are contesting, not the interests of the parties to the proceeding.”

Because the statute does not exist for the benefit of the parents, but for the benefit of the children, the court held that a parent cannot waive a GAL’s appointment.

The court observed, “We do not fault either of the parties for believing that, given the importance of determining their son’s weekday placement prior to the start of the school year, the lesser of two evils would be to proceed with the hearing on the scheduled date despite the guardian ad litem’s last-minute withdrawal. We also find the circuit court’s acquiescence to the parties’ joint request understandable.”

Nevertheless, the court held that no permanent order can be entered without satisfaction of the statutory mandate, and reversed the placement order.

The court instructed that, on remand, a GAL be appointed, with further proceedings as are appropriate.

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