Chapter 767

767.407(1)(a)1. 1. The court has reason for special concern as to the welfare of a minor child.

767.407(1)(a)2. 2. Except as provided in par. (am), the legal custody or physical placement of the child is contested.

767.407(1)(am) (am) The court is not required to appoint a guardian ad litem under par. (a) 2. if all of the following apply:

767.407(1)(am)1. 1. Legal custody or physical placement is contested in an action to modify legal custody or physical placement under s. 767.451 or 767.481.

767.407(1)(am)2. 2. The modification sought would not substantially alter the amount of time that a parent may spend with his or her child.

767.407(1)(am)3. 3. The court determines any of the following:

767.407(1)(am)3.a. a. 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.

767.407(1)(am)3.b. b. 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.

767.407(1)(b) (b) 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.

767.407(1)(c) (c) 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:

767.407(1)(c)1. 1. Aid is provided under s. 48.57 (3m) or (3n), 48.645, 49.19, or 49.45 on behalf of the child, or benefits are provided to the child’s custodial parent under ss. 49.141 to 49.161, 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.

767.407(1)(c)2. 2. 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.

767.407(1)(d) (d) 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.

767.407(1)(e) (e) 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.

767.407(2) (2) Time for appointment. The court shall appoint a guardian ad litem under sub. (1) (a) 1. or (b) 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.

767.407(3) (3) Qualifications. 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.

767.407(4) (4) Responsibilities. 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.

767.407(4m) (4m) Status hearing.

767.407(4m)(a) (a) 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.

767.407(4m)(b) (b) 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.

767.407(5) (5) 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.

767.407(6) (6) Compensation. 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.

767.407 History History: Sup. Ct. Order, 50Wis. 2d vii (1971); 1977 c. 105, 299; 1979 c. 32 ss. 50, 92 (4); 1979 c. 196; 1979 c. 352 s. 39; Stats. 1979 s. 767.045; 1987 a. 355; Sup. Ct. Order, 151 Wis. 2d xxv (1989); 1993 a. 16, 481; 1995 a. 27, 201, 289, 404; 1997 a. 105, 191; 1999 a. 9; 2001 a. 61; 2003 a. 130; 2005 a. 443 s. 25; Stats. 2005 s. 767.407; 2007 a. 20; 2019 a. 95.

767.407 Note 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.

767.407 Note Sub. (2) is the present law which takes into account the need for mediation.

767.407 Note 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.

767.407 Note 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.

767.407 Note 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]

767.407 Annotation 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 (1974).

767.407 Annotation 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 (1977).

767.407 Annotation 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 (1977).

767.407 Annotation 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).

767.407 Annotation 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).

767.407 Annotation 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. David S. v. Laura S., 179 Wis. 2d 114, 507 N.W.2d 94 (1993).

767.407 Annotation 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. State ex rel. Friedrich v. Circuit Court, 192 Wis. 2d 1, 531 N.W.2d 32 (1995).

767.407 Annotation 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.

767.407 Annotation 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 (1998), 96-2620.

767.407 Annotation 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, 2000 WI App 261, 240 Wis. 2d 197, 622 N.W.2d 29, 00-0620.

767.407 Annotation The quasi-judicial immunity of a guardian ad litem described in Paige K.B., 219 Wis. 2d 418 (1998), applies only to liability for the negligent performance of the guardian ad litem’s duties, not as a shield against court-imposed sanctions for failure to obey a court order. Evans v. Luebke, 2003 WI App 207, 267 Wis. 2d 596, 671 N.W.2d 304, 02-2210.

767.407 Annotation 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 503, 04-2440.

767.407 Annotation 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 the child’s 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, 05-2460.

767.407 Annotation The “Why” Behind Appointing Guardians Ad Litem for Children in Divorce Proceedings. Podell. 57 MLR 103 (1973).

767.41 767.41 Custody and physical placement.

767.41(1) (1) General provisions.

767.41(1)(a) (a) 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 is not 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. 822.08, as provided in s. 822.06. Nothing in this chapter may be construed to foreclose a person other than a parent who has physical custody of a child from proceeding under ch. 822.

767.41(1)(b) (b) In rendering a judgment of annulment, divorce, legal separation, or paternity, or in rendering a judgment in an action under s. 767.001 (1) (e), 767.501, 767.804 (2), or 767.805 (3), the court shall make such provisions as it deems just and reasonable concerning the legal custody and physical placement of any minor child of the parties, as provided in this section.

767.41(1m) (1m) Parenting plan. Unless the court orders otherwise, in an action for annulment, divorce, or legal separation, an action to determine paternity, or an action under s. 767.001 (1) (e), 767.501, 767.804 (2), or 767.805 (3), in which legal custody or physical placement is contested, a party seeking sole or joint legal custody or periods of physical placement shall file a proposed parenting plan with the court if the court waives the requirement to attend mediation under s. 767.405 (8) (b) or if the parties have attended mediation and the mediator notifies the court under s. 767.405 (12) (b) that the parties have not reached an agreement. Unless the court orders otherwise, the proposed parenting plan shall be filed within 60 days after the court waives the mediation requirement or the mediator notifies the court that no agreement has been reached. Except for cause shown, a party required to file a proposed parenting plan under this subsection who does not timely file a proposed parenting plan waives the right to object to the other party’s parenting plan. A proposed parenting plan shall provide information about the following questions:

767.41(1m)(a) (a) What legal custody or physical placement the parent is seeking.

767.41(1m)(b) (b) Where the parent lives currently and where the parent intends to live during the next 2 years. If there is evidence that the other parent engaged in interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), with respect to the parent providing the parenting plan, the parent providing the parenting plan is not required to disclose the specific address but only a general description of where he or she currently lives and intends to live during the next 2 years.

767.41(1m)(c) (c) Where the parent works and the hours of employment. If there is evidence that the other parent engaged in interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), with respect to the parent providing the parenting plan, the parent providing the parenting plan is not required to disclose the specific address but only a general description of where he or she works.

767.41(1m)(cm) (cm) With specific detail, what proposed variable costs are expected to be incurred by or on behalf of the child.

767.41(1m)(d) (d) Who will provide any necessary child care when the parent cannot and who will pay for the child care.

767.41(1m)(e) (e) Where the child will go to school.

767.41(1m)(f) (f) What doctor or health care facility will provide medical care for the child.

767.41(1m)(h) (h) What the child’s religious commitment will be, if any.

767.41(1m)(i) (i) Who will make decisions about the child’s education, medical care, choice of child care providers and extracurricular activities.

767.41(1m)(j) (j) How the holidays will be divided.

767.41(1m)(k) (k) What the child’s summer schedule will be.

767.41(1m)(L) (L) Whether and how the child will be able to contact the other parent when the child has physical placement with the parent providing the parenting plan, and what electronic communication, if any, the parent is seeking.

767.41(1m)(Lm) (Lm) Whether equipment for providing electronic communication is reasonably available to both parents.

767.41(1m)(m) (m) How the parent proposes to resolve disagreements related to matters over which the court orders joint decision making.

767.41(1m)(o) (o) If there is evidence that either party engaged in interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), with respect to the other party, how the child will be transferred between the parties for the exercise of physical placement to ensure the safety of the child and the parties.

767.41(2) (2) Custody to party; joint or sole.

767.41(2)(a) (a) Subject to pars. (am) to (e), based on the best interest of the child and after considering the factors under sub. (5) (am), subject to sub. (5) (bm), the court may give joint legal custody or sole legal custody of a minor child.

767.41(2)(am) (am) Except as provided in par. (d), the court shall presume that joint legal custody is in the best interest of the child.

767.41(2)(b) (b) Except as provided in par. (d) and subject to par. (e), the court may give sole legal custody only if it finds that doing so is in the child’s best interest and that either of the following applies:

767.41(2)(b)1. 1. Both parties agree to sole legal custody with the same party.

767.41(2)(b)2. 2. The parties do not agree to sole legal custody with the same party, but at least one party requests sole legal custody and the court specifically finds any of the following:

767.41(2)(b)2.a. a. One party is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child.

767.41(2)(b)2.b. b. One or more conditions exist at that time that would substantially interfere with the exercise of joint legal custody.

767.41(2)(b)2.c. c. The parties will not be able to cooperate in the future decision making required under an award of joint legal custody. In making this finding the court shall consider, along with any other pertinent items, any reasons offered by a party objecting to joint legal custody. Evidence that either party engaged in abuse, as defined in s. 813.122 (1) (a), of the child, as defined in s. 813.122 (1) (b), or evidence of interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), creates a rebuttable presumption that the parties will not be able to cooperate in the future decision making required.

767.41(2)(c) (c) Except as provided in par. (d), the court may not give sole legal custody to a parent who refuses to cooperate with the other parent if the court finds that the refusal to cooperate is unreasonable.

767.41(2)(d) (d)

767.41(2)(d)1. 1. Except as provided in subd. 4., if the court finds by a preponderance of the evidence that a party has engaged in a pattern or serious incident of interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), pars. (am), (b), and (c) do not apply and there is a rebuttable presumption that it is detrimental to the child and contrary to the best interest of the child to award joint or sole legal custody to that party. The presumption under this subdivision may be rebutted only by a preponderance of evidence of all of the following:

767.41(2)(d)1.a. a. The party who committed the battery or abuse has successfully completed treatment for batterers provided through a certified treatment program or by a certified treatment provider and is not abusing alcohol or any other drug.

767.41(2)(d)1.b. b. It is in the best interest of the child for the party who committed the battery or abuse to be awarded joint or sole legal custody based on a consideration of the factors under sub. (5) (am).

767.41(2)(d)2. 2. If the court finds under subd. 1. that both parties engaged in a pattern or serious incident of interspousal battery, as described under s. 940.19 or 940.20 (1m), or domestic abuse, as defined in s. 813.12 (1) (am), the party who engaged in the battery or abuse for purposes of the presumption under subd. 1. is the party that the court determines was the primary physical aggressor. Except as provided in subd. 3., in determining which party was the primary physical aggressor, the court shall consider all of the following:

767.41(2)(d)2.a. a. Prior acts of domestic violence between the parties.

767.41(2)(d)2.b. b. The relative severity of the injuries, if any, inflicted upon a party by the other party in any of the prior acts of domestic violence under subd. 2. a.

767.41(2)(d)2.c. c. The likelihood of future injury to either of the parties resulting from acts of domestic violence.

767.41(2)(d)2.d. d. Whether either of the parties acted in self-defense in any of the prior acts of domestic violence under subd. 2. a.

767.41(2)(d)2.e. e. Whether there is or has been a pattern of coercive and abusive behavior between the parties.

767.41(2)(d)2.f. f. Any other factor that the court considers relevant to the determination under this subdivision.

767.41(2)(d)3. 3. If the court must determine under subd. 2. which party was the primary physical aggressor and one, but not both, of the parties has been convicted of a crime that was an act of domestic abuse, as defined in s. 813.12 (1) (am), with respect to the other party, the court shall find the party who was convicted of the crime to be the primary physical aggressor.

767.41(2)(d)4. 4. The presumption under subd. 1. does not apply if the court finds that both parties engaged in a pattern or serious incident of interspousal battery or domestic abuse but the court determines that neither party was the primary physical aggressor.

767.41(2)(e) (e)

767.41(2)(e)1. 1. In this paragraph, “service member” has the meaning given in s. 324.02 (16).

767.41(2)(e)2. 2. Except as provided under ch. 324, if a party is a service member, the court may not consider as a factor in determining the legal custody of a child whether the service member has been or may be called to active duty in the U.S. armed forces and consequently is, or in the future will be or may be, absent from the service member’s home.

767.41(3) (3) Custody to agency or relative.