Attorney primer on how to succeed as a GAL

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You’re a new lawyer with an interest in family law. Why not “get you feet wet” by accepting guardian ad litem appointments?

Marlene A. Porter, of Auerbach & Porter S.C. in Madison, has been representing the best interests of children for 23 years now, while Gretchen G. Viney, of Viney & Viney in Baraboo, is a 28-year veteran GAL. So it’s fair to say that their feet became drenched years ago. Yet they continue to concentrate as GALs.

“You do it this long because you love it,” say Porter. “You love helping kids. And you do it, knowing it’s not the way to make a lot of money.”

About that latter note: The Wisconsin Supreme Court hourly rate for GALs is $70 per hour.

After your overhead, it’s practically pro bono, says Porter. But it is pay that you can rely upon receiving.

Viney is compensated as a contract GAL for Sauk County. She receives a predetermined monthly sum for her appointments. Some months that money is OK; other months, it’s a loss. She also teaches three-quarter time at the University of Wisconsin Law School, and says, “I could’ve gone full-time at the law school a long time ago, but I won’t give up my GAL work.

“Getting rich has never been one of my life’s goals.”

Getting Started

Buy the State Bar of Wisconsin’s “The Guardian ad Litem Handbook,” at the $165 member price. You will use it constantly.

Viney is one of its long-time volunteer authors. She says you must also know the “underlying” law. There are many ways to serve as a GAL, and the book covers them all.

But, if you’re a divorce/paternity GAL, you must know Ch. 767 as well. Knowledge of child development is also critical, adds Porter.

Of course, you’ll also need the required training, offered by the State Bar of Wisconsin, as well as malpractice insurance.

Understanding Your Role

Under SCR 20.4.5, which took effect last July, you’re serving as an advocate for the “best interests” of an individual, even if it’s contrary to what he or she wishes. This is nothing more than formalizing what has been GAL law and practice for many years, say Porter and Viney.

Sometimes a child, usually a teenager, might tell Porter she wants equal placement “because it’s fair.” But that might not be, ultimately, what will serve the child (usually a teenager) best, in light of her school schedule, health needs etc. Maybe she just doesn’t want to hurt one parent’s feelings.

The Investigation

Porter says you need to go into every case with an open mind. Don’t just read the pleadings and expect that they will convey the real issues. And, you need not contact all 100 character witnesses on a parent’s list; be selective.

The two agree that, although you represent a child’s best interest and he should be interviewed, the most important task in most cases is to listen to the parents with a discerning ear.

“It’s important to be respectful [to parents], and realize that these are probably the most emotional issues they’ll ever deal with, and they are probably not at their best. People do silly things during divorces that they have not done before and would probably never do again,” says Porter.

For example, if there’s pushing and shoving, it’s not necessarily physical abuse. Or, wiping a toddler’s dirty butt is not sexual abuse. And, a parent who never went to a pediatrician’s office before, may have had a sound reason for that absence. A good GAL looks for trends rather than minor, isolated incidents, and is fair to both sides.

Home Visits

Viney says that in her children’s court cases, she typically relies upon the county’s social services department to conduct these. She is also not inclined to conduct them in family law cases. Remember, she emphasizes, that attorneys cannot serve as witnesses in these cases. Even if she did see something that should be brought to the court’s attention, she would have to do it via someone who can serve as a witness, such as a social worker or public health nurse.

Some attorneys do like to conduct home visits for background purposes rather than evidence-gathering. Porter is among them. She tends to bring the family court counseling service staffer with her if she can. She reminds that you must get permission to speak to the parent on substantive matters if the parent is represented.

Expect Anger

Viney says anger is not often blatantly directed her way by the parties during the investigation. The more open hostility tends to come from neighbors or extended family.

And she can understand their resentment. After all, GALs need to ask some fairly personal questions, and behavior that might never be questioned in an intact family suddenly becomes problematic just because someone had the “audacity” to file for divorce. Or, some people are just angry at the system. If the parties are represented, Viney says she is able to deflect some of the anger by telling them to talk to their attorneys.

The Preliminary Written Recommendation

In bygone years, some judges wanted written “reports” addressed to them. These are now called “recommendations,” says Viney. Some judges still want them. And it’s a clear violation of the prohibition against an attorney giving evidence.

Don’t write, says Viney. Or, if possible, Porter says to let the social worker do the writing, and convey your agreement with it, if that’s the case.

On the other hand, there are cases where a GAL’s “preliminary recommendation” can foster settlement. In these instances, you are writing a trial brief, says Viney, and your phrasing should be “the evidence at trial will show that….” Send them only to parties and counsel.

The Christmas Eve Phone Calls

There’s a disagreement about the time/place/duration of stay for holiday placement, and there’s no court order spelling out these terms.

Porter says that some judges will give a GAL the authority to make a decision that’s binding until further review, which is a controversial practice. If that hasn’t happened, you may attempt to negotiate a compromise.

Viney has a different approach: She avoids the temptation to get involved. “I used to do that, and I found that trying to parent other people’s children is a great way to burn out as a GAL. So now, I tell people to work it out, and then I watch and see how they do it — who cooperates and who doesn’t. That way, I don’t get as many ‘micro-managing’ phone calls.

Along these lines, Viney says that “paternalistic super-parent” GALs are taking their role too far. While the child probably could benefit from more broccoli and fewer videogames, it’s really not your business.

Above All, Be a Lawyer

As a new lawyer “getting your feet
wet,” you don’t have well-honed litigation skills. Get a mentor, and get those skills. Quickly.

Viney opines, “You have to be willing to try a case. You’re going to need to know how to examine witnesses and make motions. You’re not a CASA volunteer. It’s real, law work. I think the way new GALs often times can be chewed up and spit out is, the other attorneys know they don’t know how to practice law. Then their recommendations become meaningless because they cannot say, ‘OK, let’s just try this case.’”