When representing clients in divorce or paternity matters, I often find that parents misunderstand the role of the Guardian ad Litem. The GAL is a lawyer with some special training in child-related issues who is appointed to represent the best interests of the child. The GAL does not represent the child directly. This is a subtle, but important distinction. The parent’s lawyer is generally required to follow the client’s wishes. The GAL, because he does not directly represent the child, is not required to take the position that the child wants. There are some obvious reasons for this. First, infants and very young children cannot communicate their wishes. As children get older, their ability to do so increases, and the GAL will take those wishes into account more seriously. Second, children can be easily suggestible by parents, friends, etc., and may not always appreciate what might be in their best interests. For example, a teenager might simply wish to stay with the parent who provides the least supervision, or the most video games. The GAL, because he represents the concept of the child’s interests, not the child, is thus free to take the position that is best for the child.
This concept strikes some people as paternalistic. Why shouldn’t a child’s wishes be honored? Aren’t they affected just as much as the parents by a breakup? As a lawyer who often acts as a Guardian ad Litem, I believe that Wisconsin’s system focusing on the child’s best interest is the best option. A good GAL will inquire into the child’s situation, speaking to parents and relatives, doctors, counselors, and school officials. He will also talk to the child to understand his/her point of view and feelings. The GAL’s special training in children’s issues and development will help him to process all the information and hopefully determine what type of custody and visitation is best for the child. The child’s wishes are a significant part of that process, but do not overcome other considerations. In my opinion, then, the child has an appropriate opportunity to make his/her feelings known. At the same time, the GAL ensures that those wishes are appropriate for the child’s care, health, and development. One of the other benefits of this system is that the child is not required to take a public position as to which parent he/she wishes to stay with. The “blame” for a position that favors one parent falls on the GAL, not the child.
The GAL is not a mouthpiece for either parent. Nor is the GAL required to be completely impartial. The GAL is a lawyer like any other in the case, and takes a position that my favor one parent over the other. The GAL is, however, often viewed as more impartial than either parent because he represents the innocent child. He does not come to the case with a personal bias, as the parents (naturally) do. Serving as a GAL involves making some very hard decisions. It is often not easy to gain a deep understanding of the family situation and the child’s needs, often in a short time. But GAL’s serve an important purpose by providing the judge with a view of the child’s wishes and a recommendation as to that child’s interests. I find it to be an extremely rewarding experience.
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