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Each county in the state may have a different procedure and resources, but most often the parents will participate in a variation of the following three steps when there is a dispute regarding custody and placement.
1. Parent Education Program
The parents will be required to attend a seminar on how divorce can impact the children and how to alleviate the harmful effects it may have on the children. The seminar is intended to also encourage good communication skills with the other parent and to start viewing the other parent as a co-parent rather than an ex-spouse. In some counties, this seminar is required even if there is no dispute regarding custody and placement between the parents.
The parents will either be required or encouraged to attend mediation. Mediation is a process in which a third party neutral facilitates settlement negotiations towards an agreement regarding the children’s custody and placement schedule. In Dane County, the mediator is a child development specialist who works with the Family Court Services agency and the mediation generally occurs immediately after the Parent Education Program.
If the parents reach an agreement in mediation, the mediator will then send a summary of that agreement to the judge for the judge to approve and adopt as the court’s order. If the parents cannot reach an agreement in the first mediation session, they can either elect to participate in future mediation sessions or proceed to step 3.
3. Appointment of a Guardian Ad litem and Commencement of Custody Study
A guardian ad litem (GAL) is an attorney appointed by the court to represent the child’s best interests in the custody and placement dispute. Note that the GAL does not represent the child, but rather, advocates for the best interests of the child. The GAL’s determination of what is best for the child as to custody and placement might not be aligned with the child’s wishes or either parent’s wishes.
The GAL is not an expert witness. The GAL’s role is that of an attorney who advocates in court on behalf of the child’s best interests. His or her role is no different than a parent’s attorney advocating for his or her client’s position. The GAL can call witnesses at trial, cross-examine other witnesses, and offer the court both an opening and closing statement at trial.
The GAL will determine what he or she believes is in the best interests of the child by conducting an investigation. He or she will meet with each parent and the child, interview the child’s teachers, counselors and sometimes doctors, interview extended family members, a parent’s counselor or therapist, review medical records, school reports, and criminal backgrounds of the parents and any significant others. On occasion, the GAL may also conduct a home visit of each parent’s home.
In some counties, a custody study will also be commenced at the same time the GAL is appointed. A custody study is conducted by a caseworker who is an expert in child development. Unlike the GAL, the caseworker will actually testify to his or her opinion of what placement and custodial arrangement is in the best interests of the child. The caseworker will often work in conjunction with the guardian ad litem and follow the same process outlined above.
At the end of custody study, the caseworker will issue recommendations for the child’s custody and placement schedule. The GAL will either join in that recommendation and advocate that position at trial, or issue a different recommendation. Each parent has the opportunity to either agree with these recommendations or challenge them by seeking a contested trial. The court will most often give substantial weight to the recommendations of the GAL and caseworker since they are impartial and conducted investigations. Nevertheless, the court is not required to accept these recommendations; it can adopt them entirely, adopt them partially, or simply find that the recommendations do not represent the child’s best interests.