Judicial Council Note, 1990: This section clarifies and expands s. 767.045, as it was amended by 1987 Wisconsin Act 355
. It also incorporates the substance of s. 809.85 into it. Sub. (1) (a) specifies the situations in which the court is required to appoint a guardian ad litem. Sub. (1) (a) 1. reflects the desirability of broad discretion for the court to appoint a guardian ad litem. Of special note is sub. (1) (b). While the court has always had the discretion to appoint a guardian ad litem in such situations, the committee concluded that it is desirable to specifically identify these situations as requiring special attention.
Sub. (2) is the present law which takes into account the need for mediation.
Sub. (4) defines the role of the guardian ad litem. It clarifies that the responsibility is as an advocate for the best interests of the child. It emphasizes the need for the guardian ad litem to function independently, while giving broad consideration to the views of others, including the children, social workers and the like. It also specifies that the guardian ad litem shall function in the same manner as the lawyer for a party. Among other things, this means that the guardian ad litem communicates with the court and other lawyers in the same manner as a lawyer for a party, presents information on relevant issues through the presentation of evidence or in other appropriate ways and generally functions as the lawyer for a party. In this case the "party" is the best interests of the children. Sub. (4) also enumerates specific duties to emphasize their particular importance.
The discretion for the guardian ad litem to communicate the wishes of the child in sub. (4) was added in 1987 Wisconsin Act 355
, as was much of sub. (6). These are unchanged.
Sub. (5) specifies that the appointment terminates at the final order or the conclusion of the appeal unless the court otherwise directs. The court may reappoint or continue the appointment of the guardian ad litem after this but is required to state the scope of the responsibilities for such period. [Re Order effective Jan. 1, 1990]
Trial court direction that the husband pay the entire fee of the guardian ad litem is held to be an abuse of discretion, requiring modification, so as to charge the wife with 50%. Tesch v. Tesch, 63 W (2d) 320, 217 NW (2d) 647.
Where guardian ad litem's report was timely disclosed to both parties, trial court did not err in failing to introduce report during custody hearing. Allen v. Allen, 78 W (2d) 263, 254 NW (2d) 244.
Increase of visitation rights from 24 days to 75 days per year had sufficient impact upon welfare of children so as to require appointment of guardian ad litem. Bahr v. Galonski, 80 W (2d) 72, 257 NW (2d) 869.
Discussion of requirement of appointment of guardian ad litem pursuant to (1) and 891.39 (1) (a). In re Marriage of Johnson v. Johnson, 157 W (2d) 490, 460 NW (2d) 166 (Ct. App. 1990).
A guardian ad litem may not be called as a witness in a custody proceeding. The G.A.L. is to communicate with the court as a lawyer for a party and to present information by presenting evidence. Marriage of Hollister v. Hollister, 173 W (2d) 413, 496 NW (2d) 642 (Ct. App. 1992).
A guardian ad litem may act in a separate action involving the child outside the court of original appointment even though another guardian ad litem has been appointed by the court where the separate action was brought. Interest of Brandon S.S. 179 W (2d) 114, 507 NW (2d) 94 (1993).
The courts' power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified and effective counsel at that rate, but should order compensation at the rate under SCR 81.01
or 81.02 or a higher rate when necessary to secure effective counsel. Friedrich v. Dane County Circuit Ct. 192 W (2d) 1, 531 NW (2d) 32 (1995).
The denial of a child's request to intervene in a divorce action was correct. The guardian-ad-litem fulfills the requirement that a child is entitled to representation. Marriage of Joshua K. v. Nancy K. 201 W (2d) 655, 549 NW (2d) 494 (Ct. App. 1996).
Quasi-judicial immunity extends to a guardian ad litem's negligent performance in a divorce proceeding. Paige K. B. v. Molepske, 219 W (2d) 418, 580 NW (2d) 289 (1998).
The "why" behind appointing guardians ad litem for children in divorce proceedings. Podell, 57 MLR 103.
A court of this state having jurisdiction to hear actions affecting the family may exercise jurisdiction as provided under ch. 769
No action under s. 767.02 (1) (a)
may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action, or unless the marriage has been contracted within this state within one year prior to the commencement of the action. No action under s. 767.02 (1) (c)
may be brought unless at least one of the parties has been a bona fide resident of the county in which the action is brought for not less than 30 days next preceding the commencement of the action. No action under s. 767.02 (1) (c)
may be brought unless at least one of the parties has been a bona fide resident of this state for not less than 6 months next preceding the commencement of the action.
(2) Actions for custody of children.
Subject to ch. 822
, the question of a child's custody may be determined as an incident of any action affecting the family or in an independent action for custody. The effect of any determination of a child's custody shall not be binding personally against any parent or guardian unless the parent or guardian has been made personally subject to the jurisdiction of the court in the action as provided under ch. 801
or has been notified under s. 822.05
as provided in s. 822.12
. Nothing in this section may be construed to foreclose a person other than a parent who has physical custody of a child from proceeding under ch. 822
The party initiating an action affecting the family shall be denominated the petitioner. The party responding to the action shall be denominated the respondent. All references to "plaintiff" in chs. 801
shall apply to the petitioner, and all references to "defendant" in chs. 801
shall apply to the respondent. Both parties together may initiate the petition by signing and filing a joint petition. The parties to a joint petition shall be called joint petitioners. The parties to a joint petition shall state within the joint petition that both parties consent to personal jurisdiction and waive service of summons.
All references to a "complaint" in chs. 801
shall apply to petitions under s. 767.085
(5) Title of actions.
An action affecting the family under s. 767.02 (1) (a)
shall be entitled "In re the marriage of A.B. and C.D.", except that an independent action for visitation under s.767.245 (3) shall be entitled "In re visitation with A. B.". An action affecting the family under s. 767.02 (1) (f)
shall be entitled "In re the support of A.B.". A child custody action shall be entitled "In re the custody of A.B.". In all other respects, the general provisions of chs. 801
respecting the content and form of the summons and pleadings shall apply.
An action affecting the family may not be dismissed under s. 805.04 (1)
unless all the parties who have appeared in the action have been served with a copy of the notice of dismissal and have had an opportunity to file a responsive pleading or motion.
(7) Actions for certain interspousal remedies.
If a spouse has begun an action against the other spouse under s. 766.70
and either or both spouses subsequently bring an action under this chapter for divorce, annulment or legal separation, the actions may be consolidated by the court exercising jurisdiction under this chapter. If the actions are consolidated, to the extent the procedural and substantive requirements of this chapter conflict with the requirements under s. 766.70
, this chapter controls. No action under s. 766.70
may be brought by a spouse against the other spouse while an action for divorce, annulment or legal separation is pending under this chapter.
In a child custody dispute between the children's father, who was divorced by his wife, and the wife's parents, subsequent to her death, the trial court erred in concluding that it had no choice but to award custody to the surviving natural parent unless it found him unfit or unable to care for the children. LaChapell v. Mawhinney, 66 W (2d) 679, 225 NW (2d) 501.
Where divorce action was brought before meeting residency requirement, action was never commenced and petition could not be amended after requirement was met. Siemering v. Siemering, 95 W (2d) 111, 288 NW (2d) 881 (Ct. App. 1980).
Sub. (7) prohibition on commencement of action under 766.70 while divorce, annulment or legal separation action is pending does not violate equal protection and is constitutional. In re Marriage of Haack v. Haack, 149 W (2d) 243, 440 NW (2d) 794 (Ct. App. 1989).
See note to 801.05, citing In re Marriage of McAleavy v. McAleavy, 150 W (2d) 26, 440 NW (2d) 566 (1989).
Judgment of divorce or legal separation.
A court of competent jurisdiction shall grant a judgment of divorce or legal separation if:
The requirements of this chapter as to residence and marriage assessment counseling have been complied with;
In connection with a judgment of divorce or legal separation, the court finds that the marriage is irretrievably broken under s. 767.12 (2)
, unless par. (b)
In connection with a judgment of legal separation, the court finds that the marital relationship is broken under s. 767.12 (3)
To the extent it has jurisdiction to do so, the court has considered, approved or made provision for legal custody, the support of any child of the marriage entitled to support, the maintenance of either spouse, the support of the family under s. 767.261
and the disposition of property.
History: 1971 c. 220
; 1977 c. 105
; 1979 c. 32
, 92 (4)
; Stats. 1979 s. 767.07; 1987 a. 355
; 1989 a. 132
Divorce judgment didn't bar wife's action against husband for torts allegedly committed during marriage. Stuart v. Stuart, 143 W (2d) 347, 421 NW (2d) 505 (1988).
State is real party in interest. 767.075(1)
The state is a real party in interest within the meaning of s. 803.01
for purposes of establishing paternity, securing reimbursement of aid paid, future support and costs as appropriate in an action affecting the family in any of the following circumstances:
An action to establish paternity whenever there is a completed application for legal services filed with the child support program under s. 49.22
or whenever s. 767.45 (6m)
An action to establish or enforce a child support or maintenance obligation whenever there is a completed application for legal services filed with the child support program under s. 49.22
Whenever aid under s. 46.261
, 48.57 (3m)
has, in the past, been provided on behalf of a dependent child, or benefits have, in the past, been provided to the child's custodial parent under ss. 49.141
, and the child's family is eligible for continuing child support services under 45 CFR 302.33
Except as provided in par. (b)
, in any action affecting the family under a child support enforcement program, an attorney acting under s. 49.22
or 59.53 (5)
, including any district attorney or corporation counsel, represents only the state. Child support services provided by an attorney as specified in sub. (1)
do not create an attorney-client relationship with any other party.
(b) Paragraph (a)
does not apply to an attorney who is employed by the department under s. 49.22
or a county under s. 59.53 (5)
or (6) (a)
to act as the guardian ad litem of the minor child for the purpose of establishing paternity.
See note to 767.25, citing State ex rel. v. Reible, 91 W (2d) 394, 283 NW (2d) 427 (Ct. App. 1979).
A mother is a necessary party in a paternity action brought by the state. In re Paternity of Joshua E. 171 W (2d) 327, 491 NW (2d) 136 (Ct. App. 1992).
A mother's and child's interests in a paternity action are not sufficiently identical to place them in privity for the purpose of res judicata. Chad M.G. v. Kenneth J.Z. 194 W (2d) 690, 535 NW (2d) 97 (Ct. App. 1995).
Sub. (2) (b) allows a county corporation counsel to act as guardian ad litem for a child in a paternity action so long as he or she only represents the child and does not represent the state in the action. Chad M.G. v. Kenneth J.Z. 194 W (2d) 690, 535 NW (2d) 97 (Ct. App. 1995).
Because a child has a right to bring an independent action for paternity under s. 767.45, where the child was not a party to an earlier state instituted paternity action, it would be a violation of the child's due process rights to preclude the child from litigating the paternity issue. Mayonia M.M. v. Kieth N. 202 W (2d) 461, 551 NW (2d) 34 (Ct. App. 1996).
The child has been deprived of parental support by reason of the continued absence of a parent from the home.
A court has not issued an order under s. 767.25
requiring the parent who is absent from the home to support the child.
Order in case involving dependent child. 767.078(1)(a)(a)
In this subsection, "case involving a dependent child" means an action which meets all of the following criteria:
The child has been deprived of parental support by reason of the continued absence of a parent from the home.
Except as provided in par. (c)
, in a case involving a dependent child, if the child's parent who is absent from the home is not employed, the court shall order that parent to do one or more of the following:
An order is not required under par. (b)
if the court makes written findings that there is good cause for not issuing the order.
Except as provided in par. (c)
, in a case involving a dependent child whose custodial parent is subject, under s. 49.25 (1)
, to the program under s. 49.25
, if the child's parent who is absent from the home lives in a pilot county under s. 49.25
, the court may order the parent who is absent from the home to report to the agency providing services under s. 49.193
in that pilot county and to participate in employment training and education activities under s. 49.25 (7)
, if all of the following conditions are satisfied:
The parent who is absent from the home is able to work full time.
The parent who is absent from the home works, on average, less than 32 hours per week and is not participating in an employment training program that meets criteria established by the department.
The actual weekly gross income of the parent who is absent from the home averages less than 40 times the federal minimum hourly wage under 29 USC 206
(a) (1) or the parent is earning less than the parent has the ability to earn, as determined by the court.
The agency to which a parent is required to report under subd. 1.
shall report to the court on the services plan that is developed for the parent under s. 49.25 (7) (b)
and on the parent's progress in following the plan. The agency may recommend to the court modifications in the order under subd. 1.
based on the parent's employment or progress in following the plan or on the agency's evaluation of the parent's needs.
(2) Subsection (1)
does not limit the authority of a court to issue an order, other than an order under sub. (1)
, regarding employment of a parent in an action for modification of a child support order under s. 767.32
or an action in which an order for child support is required under s. 767.25 (1)
, 767.51 (3)
or 767.62 (4) (a)
A divorce action terminates on the death of a spouse. After the death an order prohibiting an act in regard to marital property entered in the divorce may not be enforced under ch. 767. As the parties are legally married at the time of death, the sole remedy for resolving for resolving disputes over marital property lies under s. 766.70. Socha v. Socha, 204 W (2d) 474, 555 NW (2d) 152 (Ct. App. 1996).
Actions to compel support. 767.08(1)(a)
"Nonlegally responsible relative" means a relative who assumes responsibility for the care of a child without legal custody, but is not in violation of a court order. "Nonlegally responsible relative" does not include a relative who has physical custody of a child during a court-ordered visitation period.
"Relative" means any person connected with a child by consanguinity or direct affinity.
If a person fails or refuses to provide for the support and maintenance of his or her spouse or minor child, any of the following may commence an action in any court having jurisdiction in actions affecting the family to compel the person to provide any legally required support and maintenance:
The court in the action shall, as provided under s. 767.25
, determine and adjudge the amount, if any, the person should reasonably contribute to the support and maintenance of the spouse or child and how the sum should be paid. This amount may be expressed as a percentage of the person's income or as a fixed sum, or as a combination of both in the alternative by requiring payment of the greater or lesser of either a percentage of the person's income or a fixed sum. The amount so ordered to be paid may be changed or modified by the court upon notice of motion or order to show cause by either party upon sufficient evidence.