Whenever a court refers a party to the director of family court services for possible mediation, the director shall assign a mediator to the case. The mediator shall provide mediation if he or she determines that it is appropriate. If the mediator determines that mediation is not appropriate, he or she shall so notify the court. Whenever a court refers a party to the director of family court services for any other family court service, the director shall take appropriate action to provide the service.
Any intake form that the family court services requires the parties to complete before commencement of mediation shall ask each party whether either of the parties has engaged in interspousal battery, as described in s. 940.19
or 940.20 (1m)
, or domestic abuse, as defined in s. 813.12 (1) (am)
The parties to any action affecting the family may, at their own expense, receive mediation services from a mediator other than one who provides services under sub. (3)
. Parties who receive services from a mediator under this subsection shall sign and file with the director of family court services and with the court a written notice stating the mediator's name and the date of the first meeting with the mediator.
Initial session of mediation required. 767.405(8)(a)
Except as provided in par. (b)
, in any action affecting the family, including an action for revision of judgment or order under s. 767.451
, in which it appears that legal custody or physical placement is contested, the parties shall attend at least one session with a mediator assigned under sub. (6) (a)
or contracted with under sub. (7)
and, if the parties and the mediator determine that continued mediation is appropriate, no court may hold a trial of or a final hearing on legal custody or physical placement until after mediation is completed or terminated.
A court may, in its discretion, hold a trial or hearing without requiring attendance at the session under par. (a)
if the court finds that attending the session will cause undue hardship or would endanger the health or safety of one of the parties. In making its determination of whether attendance at the session would endanger the health or safety of one of the parties, the court shall consider evidence of the following:
That either party has a significant problem with alcohol or drug abuse.
Any other evidence indicating that a party's health or safety will be endangered by attending the session.
The initial session under par. (a)
shall be a screening and evaluation mediation session to determine whether mediation is appropriate and whether both parties wish to continue in mediation. At the initial session, the mediator shall discuss with each of the parties information included in proposed parenting plans under s. 767.41 (1m)
At least 10 days before the initial mediation session, each party shall submit a proposed parenting plan containing all the information required under s. 767.41 (1m)
to the director of family court services for the county in which the action is pending or the assigned mediator. The parties may exchange proposed parenting plans before the initial mediation session. For purposes of the exchange and submission under this paragraph, a party may provide a copy of the party's proposed parenting plan electronically.
Prohibited issues in mediation.
If mediation is provided by a mediator assigned under sub. (6) (a)
, no issue relating to property division, maintenance, or child support may be considered during the mediation unless all of the following apply:
The property division, maintenance or child support issue is directly related to the legal custody or physical placement issue.
The parties agree in writing to consider the property division, maintenance or child support issue.
Powers and duties of mediator.
A mediator assigned under sub. (6) (a)
shall be guided by the best interest of the child and may do any of the following, at his or her discretion:
Include the counsel of any party or any appointed guardian ad litem in the mediation.
Interview any child of the parties, with or without a party present.
Require a party to provide written disclosure of facts relating to any legal custody or physical placement issue addressed in mediation, including any financial issue permitted to be considered.
Suspend mediation when necessary to enable a party to obtain an appropriate court order or appropriate therapy.
Terminate mediation if a party does not cooperate or if mediation is not appropriate or if any of the following facts exist:
Either party has a significant problem with alcohol or drug abuse.
Other evidence which indicates one of the parties' health or safety will be endangered if mediation is not terminated.
Any agreement that resolves issues of legal custody or periods of physical placement between the parties and that is reached as a result of mediation under this section shall be prepared in writing, reviewed by the attorney, if any, for each party and by any appointed guardian ad litem, and submitted to the court to be included in the court order as a stipulation. Any reviewing attorney or guardian ad litem shall certify on the mediation agreement that he or she reviewed it, and the guardian ad litem, if any, shall comment on the agreement based on the best interest of the child. The mediator shall certify that the written mediation agreement accurately reflects the agreement made between the parties. The court may approve or reject the agreement, based on the best interest of the child. The court shall state in writing its reasons for rejecting an agreement.
If after mediation under this section the parties do not reach agreement on legal custody or periods of physical placement, the parties or the mediator shall so notify the court. Except as provided in s. 767.407 (1) (am)
, the court shall promptly appoint a guardian ad litem under s. 767.407
. Regardless of whether the court appoints a guardian ad litem, the court shall, if appropriate, refer the matter for a legal custody or physical placement study under sub. (14)
. If the parties come to agreement on legal custody or physical placement after the matter has been referred for a study, the study shall be terminated. The parties may return to mediation at any time before any trial of or final hearing on legal custody or periods of physical placement. If the parties return to mediation, the county shall collect any applicable fee under s. 814.615
Powers of court.
Except as provided in sub. (8)
, referring parties to mediation under this section does not affect the power of the court to make any necessary order relating to the parties during the course of the mediation.
Legal custody and physical placement study. 767.405(14)(a)
A county or 2 or more contiguous counties shall provide legal custody and physical placement study services. The county or counties may elect to provide these services by any of the means set forth in sub. (3)
with respect to mediation. Regardless of whether a county so elects, whenever legal custody or physical placement of a minor child is contested and mediation under this section is not used or does not result in agreement between the parties, or at any other time the court considers it appropriate, the court may order a person or entity designated by the county to investigate the following matters relating to the parties:
Each party's performance of parental duties and responsibilities relating to the child.
Any other matter relevant to the best interest of the child.
The person or entity investigating the parties under par. (a)
shall complete the investigation, prepare a report of the results, and, at least 10 days before the report is introduced into evidence under subd. 2.
, submit the report to the court and to both parties. The court may review the report, but may not rely upon it as evidence before it is properly introduced under subd. 2.
The report under subd. 1.
shall be offered in accordance with the rules of evidence and shall be a part of the record in the action if it is so offered and admitted into evidence.
No person who provided mediation to the parties under this section may investigate the parties under this subsection unless each party personally so consents by written stipulation after mediation has ended and after receiving notice from the person who provided mediation that consent waives the inadmissibility of communications in mediation under s. 904.085
Judicial Council Note, 1993. Subsections (5) (a) and (14) (c) are amended because the rule of inadmissibility under s. 904.085 is not a privilege; it is waivable only if the parties stipulate that the mediator may conduct the custody investigation.
The director is an agent of the circuit court judges, and the director's statutory authority and responsibilities are to be carried out under the supervision of the circuit court judges. A collective bargaining agreement cannot trump such statutory, judicial branch authority because doing so would violate separation of powers principles. A collective bargaining agreement may not abrogate a statutory function of the judicial branch. Any such provisions in a collective bargaining agreement are invalid and unenforceable. Racine County v. International Association of Machinists and Aerospace Workers, 2008 WI 70
, 310 Wis. 2d 508
, 751 N.W.2d 312
Guardian ad litem for minor children. 767.407(1)(a)(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:
The court has reason for special concern as to the welfare of a minor child.
Except as provided in par. (am)
, the legal custody or physical placement of the child is contested.
The court is not required to appoint a guardian ad litem under par. (a) 2.
if all of the following apply:
Legal custody or physical placement is contested in an action to modify legal custody or physical placement under s. 767.451
The modification sought would not substantially alter the amount of time that a parent may spend with his or her child.
That the appointment of a guardian ad litem will not assist the court in the determination regarding legal custody or physical placement because the facts or circumstances of the case make the likely determination clear.
That a party seeks the appointment of a guardian ad litem solely for a tactical purpose, or for the sole purpose of delay, and not for a purpose that is in the best interest of the child.
The court may appoint a guardian ad litem for a minor child in any action affecting the family if the child's legal custody or physical placement is stipulated to be with any person or agency other than a parent of the child or, if at the time of the action, the child is in the legal custody of, or physically placed with, any person or agency other than the child's parent by prior order or by stipulation in this or any other action.
The attorney responsible for support enforcement under s. 59.53 (6) (a)
may request that the court appoint a guardian ad litem to bring an action or motion on behalf of a minor who is a nonmarital child whose paternity has not been conclusively determined from genetic test results under s. 767.804
, acknowledged under s. 767.805 (1)
or a substantially similar law of another state, or adjudicated for the purpose of determining the paternity of the child, and the court shall appoint a guardian ad litem, if any of the following applies:
An application for legal services has been filed with the child support program under s. 49.22
on behalf of the child, but the state and its delegate under s. 49.22 (7)
are barred by a statute of limitations from commencing an action under s. 767.80
on behalf of the child.
A guardian ad litem appointed under par. (c)
shall bring an action or motion for the determination of the child's paternity if the guardian ad litem determines that the determination of the child's paternity is in the child's best interest.
Nothing in this subsection prohibits the court from making a temporary order under s. 767.225
that concerns the child before a guardian ad litem is appointed or before the guardian ad litem has made a recommendation to the court, if the court determines that the temporary order is in the best interest of the child.
Time for appointment.
The court shall appoint a guardian ad litem under sub. (1) (a) 1.
whenever the court deems it appropriate. The court shall appoint a guardian ad litem under sub. (1) (a) 2.
at the time specified in s. 767.405 (12) (b)
, unless upon motion by a party or its own motion the court determines that earlier appointment is necessary.
The guardian ad litem shall be an attorney admitted to practice in this state. No person who is an interested party in a proceeding, appears as counsel in a proceeding on behalf of any party or is a relative or representative of an interested party may be appointed guardian ad litem in that proceeding.
The guardian ad litem shall be an advocate for the best interests of a minor child as to paternity, legal custody, physical placement, and support. The guardian ad litem shall function independently, in the same manner as an attorney for a party to the action, and shall consider, but shall not be bound by, the wishes of the minor child or the positions of others as to the best interests of the minor child. The guardian ad litem shall consider the factors under s. 767.41 (5) (am)
, subject to s. 767.41 (5) (bm)
, and custody studies under s. 767.405 (14)
. The guardian ad litem shall investigate whether there is evidence that either parent has engaged in interspousal battery, as described in s. 940.19
or 940.20 (1m)
, or domestic abuse, as defined in s. 813.12 (1) (am)
, and shall report to the court on the results of the investigation. The guardian ad litem shall review and comment to the court on any mediation agreement and stipulation made under s. 767.405 (12)
and on any parenting plan filed under s. 767.41 (1m)
. Unless the child otherwise requests, the guardian ad litem shall communicate to the court the wishes of the child as to the child's legal custody or physical placement under s. 767.41 (5) (am) 2.
The guardian ad litem has none of the rights or duties of a general guardian.
Subject to par. (b)
, at any time after 120 days after a guardian ad litem is appointed under this section, a party may request that the court schedule a status hearing related to the actions taken and work performed by the guardian ad litem in the matter.
A party may, not sooner than 120 days after a status hearing under this subsection is held, request that the court schedule another status hearing on the actions taken and work performed by the guardian ad litem in the matter.
Termination and extension of appointment.
The appointment of a guardian ad litem under sub. (1)
terminates upon the entry of the court's final order or upon the termination of any appeal in which the guardian ad litem participates. The guardian ad litem may appeal, may participate in an appeal or may do neither. If an appeal is taken by any party and the guardian ad litem chooses not to participate in that appeal, he or she shall file with the appellate court a statement of reasons for not participating. Irrespective of the guardian ad litem's decision not to participate in an appeal, the appellate court may order the guardian ad litem to participate in the appeal. At any time, the guardian ad litem, any party or the person for whom the appointment is made may request in writing that the court extend or terminate the appointment or reappointment. The court may extend that appointment, or reappoint a guardian ad litem appointed under this section, after the final order or after the termination of the appeal, but the court shall specifically state the scope of the responsibilities of the guardian ad litem during the period of that extension or reappointment.
The guardian ad litem shall be compensated at a rate that the court determines is reasonable. The court shall order either or both parties to pay all or any part of the compensation of the guardian ad litem. In addition, upon motion by the guardian ad litem, the court shall order either or both parties to pay the fee for an expert witness used by the guardian ad litem, if the guardian ad litem shows that the use of the expert is necessary to assist the guardian ad litem in performing his or her functions or duties under this chapter. If both parties are indigent, the court may direct that the county of venue pay the compensation and fees. If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under s. 977.08 (4m) (b)
. The court may order a separate judgment for the amount of the reimbursement in favor of the county and against the party or parties responsible for the reimbursement. The court may enforce its orders under this subsection by means of its contempt power.
Sup. Ct. Order, 50Wis. 2d vii (1971); 1977 c. 105
; 1979 c. 32
, 92 (4)
; 1979 c. 196
; 1979 c. 352
; Stats. 1979 s. 767.045; 1987 a. 355
; Sup. Ct. Order, 151 Wis. 2d xxv (1989); 1993 a. 16
; 1995 a. 27
; 1997 a. 105
; 1999 a. 9
; 2001 a. 61
; 2003 a. 130
; 2005 a. 443
; Stats. 2005 s. 767.407; 2007 a. 20
; 2019 a. 95
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]
If both spouses have ability to pay, each should be required to contribute to the payment of the guardian ad litem's fee, with the percentage to be paid by each to be determined in the court's discretion. Tesch v. Tesch, 63 Wis. 2d 320
, 217 N.W.2d 647
When the guardian ad litem's report was timely disclosed to both parties, the trial court did not err in failing to introduce the report during a custody hearing. Allen v. Allen, 78 Wis. 2d 263
, 254 N.W.2d 244
An increase of visitation rights from 24 days to 75 days per year had sufficient impact upon the welfare of the children to require the appointment of a guardian ad litem. Bahr v. Galonski, 80 Wis. 2d 72
, 257 N.W.2d 869
The appointment of a guardian ad litem pursuant to sub. (1) and s. 891.39 (1) (a) is mandated when paternity is questioned and also when there are special concerns. Special concerns arise when a child's welfare is directly at issue, as is the case when an existing family is disrupted. Johnson v. Johnson, 157 Wis. 2d 490
, 460 N.W.2d 166
(Ct. App. 1990).
A guardian ad litem may not be called as a witness in a custody proceeding. The guardian ad litem is to communicate with the court as a lawyer for a party and to present information by presenting evidence. Hollister v. Hollister, 173 Wis. 2d 413
, 496 N.W.2d 642
(Ct. App. 1992).
A guardian ad litem could act in a separate action involving the child outside of the court of original appointment even though another guardian ad litem had been appointed by the court when the separate action was brought. Interest of Brandon S.S., 179 Wis. 2d 114
, 507 N.W.2d 94
The court's 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, 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 Court, 192 Wis. 2d 1
, 531 N.W.2d 32
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. Joshua K. v. Nancy K., 201 Wis. 2d 655
, 549 N.W.2d 494
(Ct. App. 1996), 94-3420
Quasi-judicial immunity extends to a guardian ad litem's negligent performance in a divorce proceeding. Paige K.B. v. Molepske, 219 Wis. 2d 418
, 580 N.W.2d 289
Under sub. (6), if only one of the parties is indigent, the court may not order the county or the indigent party to pay guardian ad litem fees. The court's only option is to order the non-indigent party to pay. Olmsted v. Circuit Court for Dane County, 2000 WI App 261
, 240 Wis. 2d 197
, 622 N.W.2d 29
The quasi-judicial immunity of a guardian ad litem described in
applies only to liability for the negligent performance of his or her duties, not as a shield against court-imposed sanctions for failure to obey a court order. Reed v. Luebke, 2003 WI App 207
, 267 Wis. 2d 596
, 671 N.W.2d 304
The guardian ad litem is an advocate for the child's best interest, not a fact-finder or a consultant for the court. A trial court may decide, in individual cases, to weigh the guardian's recommendation more heavily than the other statutory factors, but the court cannot rewrite the statute to create a fixed hierarchy of factors. Goberville v. Goberville, 2005 WI App 58
, 280 Wis. 2d 405
, 694 N.W.2d 405
A circuit court may not, when the issue is contested, determine the primary placement of a child without appointing a guardian ad litem for the child. Because the interests affected by the absence of a guardian ad litem are the child's and not the parties', neither parent is empowered to waive a child's right to have its best interests represented and advocated for in a placement proceeding, and the court will decline to address the issue on the basis of either waiver or the doctrine of invited error. State v. Freymiller, 2007 WI App 6
, 298 Wis. 2d 333
, 727 N.W.2d 334
The “why" behind appointing guardians ad litem for children in divorce proceedings. Podell. 57 MLR 103.
Custody and physical placement.