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Proposed GAL rule a solution in want of a problem

Gregg Herman is a family-law attorney with Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. He welcomes comments at gherman@loebherman.com.

Gregg Herman is a family-law attorney with Loeb & Herman in Milwaukee.  He welcomes comments at gherman@loebherman.com.

On Oct. 22, the Wisconsin Supreme Court will hold a public hearing on a petition to amend the Supreme Court rule regarding mandatory GAL training.

The current rule, SCR 35.015, requires lawyers to attend 6 hours of GAL training every four years in order to represent the interests of minor children. The proposed amendment would mandate that at least three of the six hours be devoted to the “dynamics of family violence” for a first appointment and one of the six hours for subsequent appointments.

I’m happy the mandatory-training rule is being taken so seriously. I was chair of the State Bar committee which sought the rule and had difficulty in convincing the court of its necessity. Although certainly not resolving all questions regarding the quality of GAL services, the rule has seemed to help in this regard while certainly creating no harm.

However, the proposed amendment, though certainly well intended, seems to be a solution in want of a problem. Although domestic violence is certainly an important concern for children and should be part of GAL training, the petition raises two questions: First, how much of GAL practice involves domestic violence? Second, in any event, should the Supreme Court be micromanaging training courses?

In my experience as a GAL (having taken on about 50 cases), I would estimate that fewer than 10% of these cases concern domestic violence. In a totally unscientific survey, conducted in the event my experience was unusual, I surveyed three other lawyers. Their responses were as follows, first to the question of how many GAL cases they had handled and, second, their estimate of how many involved domestic violence:

  •  About 100 cases, about 20%.
  • About 500 cases, about 7%
  • About 500 cases, about 10%

Rather than domestic violence, everyone who was surveyed agreed that virtually every case involved issues of child development, ranging from infant care to angry adolescents. So, if anything, it would seem a GAL should be given special training in interviewing children.

Certainly, in the small minority of cases which do involve violence, training can be essential. But it is already part of such training. The Door County workshop held last summer, for example, devoted a half day to the effect of violence on children. A State Bar training program this fall devotes an hour and a half (a quarter of the program) to child abuse.

If the Supreme Court wants to police GAL training, it could start with requiring GALs to take a position on appeals affecting their wards, or at a very minimum, file with the court a statement of reasons for not participating, as required by Wis. Stats. 809.19 (8m). A recent case, Michels v. Kelsey, 2019 WI 57, 387 Wis. 2d. 1, 927 N.W.2d 486 involved the rights of a grandparent to have court-ordered visitation, an issue which very much affects children. The GAL did not file a brief or even a statement as required by appellate rules.

Apparently, the court did not care.

The training requirement under SCR 35.015 is important. Children have no choice in appointing their GAL and are not allowed to hire advocacy counsel. They cannot fire a GAL who is not performing the job adequately (and sometimes, not at all). There are a number of areas where GALs need training to do a better job. Family violence is one of these areas, but only one and not the most common. So, I would suggest that the Supreme Court encourage training in this area, but leave the specifics to the lawyers who plan the programs.

Invariably, they are lawyers who have served in the role and are best aware of the optimal allocation of the training options available.

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