ROBERT W. HANSEN, J.
There is no legal area in which the trial court has more responsibility than in deciding custody matters.
On the limitations inherent in the review of custody placement orders by trial courts, this court has conceded
Unfit or unable.
Great stress is placed in appellant's brief on the fact that the trial court did not find the plaintiff "unfit" but only found that she was unable to "adequately care" for the child.
It cannot be doubted or denied that the plaintiff has suffered from serious mental and emotional disorders
Extent of recovery.
Appellant takes the position that she has recovered sufficiently from mental and emotional disorders to entitle her to the custody of the child of the marriage. As stated by the trial court, this claim asks, ". . . whether the plaintiff since the divorce has mentally, physically and emotionally improved to where she could reasonably be expected to assume adequate parental responsibility toward her son."
The trial court concluded that the plaintiff's condition had not sufficiently improved to the extent that custody could or should be awarded to her. There is ample evidence in the record to sustain this finding.
While the psychologist treating her testified to her considerable improvement in the areas of anxiety, self-confidence and dependency upon her mother, he also
". . . I'm sure that she will try. I could not say based on what I know that she is not a fit mother. She has her areas of weakness, to be sure, things she'll have to work on, things she'll have to watch out for."
The progress and prognosis appear promising, but full and complete recovery is not clearly established by this testimony and the entire record.
Welfare of child.
The issues before the trial court are, however, not to be narrowed and limited to an inquiry as to the degree of recovery from mental and emotional disorders of the custody-seeking parent. This court has said that children are not to be taken from a parent custodian as a penalty for improper conduct.
In post-trial hearings as to custody, as well as at the time of trial, the trial court has the responsibility to determine what disposition and what conditions will best serve the interests of the children involved. As this court has stated:
"It is his task to determine what provisions and terms would best guarantee an opportunity for the children involved to grow to mature and responsible citizens, regardless of the desires of the respective parties. This power, vested in the family court, reflects a recognition that children involved in a divorce are always disadvantaged
In this case, at the time of oral argument, it was stated that the defendant-father had remarried, purchased a home and intended to seek a transfer of custody to him. If he were so to do, it would be incumbent upon him not merely to establish his fitness, but also to prove that the best interests of the boy would be served by the transfer or change of custody. If the plaintiff-mother were to establish full and complete recovery from the disorders that have plagued her, that fact alone would not require nor justify, ipso facto, the transfer of custody to her. It would still be her responsibility to also establish that the future well-being of the child would be furthered by the change of custody. This court has said "the polestar remains the welfare of the child."
Rights of child.
One of the affirmative steps that can be taken by trial courts in custody matters is the appointment of a guardian ad litem to represent the interests of the child or children who are subjects, not objects, of the court inquiry. In the Wendland Case
More recently, in Koslowsky v. Koslowsky
By any or all of these tests this is clearly a case in which the trial court should have appointed an attorney to serve as guardian ad litem for the child, Scott. The appointment of the guardian would have in this situation aided the trial court in fully considering whether the welfare of the child might not be best served by his remaining in the foster home with the minister and his wife where he has spent two formative years. A growing child is not a ping-pong ball to be lightly batted back and forth from one home to another. The foster parents are not parties to this action, but the child is, and all available alternatives must be evaluated in reaching the determination as to what order will best serve the child's present and future well-being. If the appointment of such legal representative for the interests of the child were to help make clear to the plaintiff and defendant that the controlling consideration is the welfare of their child, not their wishes or desires, that would be an added plus. Since this case must be reversed and remanded for a new hearing, it will be returned with direction that a guardian ad litem be appointed to represent and speak for the best interests of the child, Scott, in the new hearing, the costs involved to be charged to the parents on an equitable division.
Social Service Report.
The order of the trial court will be reversed and the matter returned for a new hearing on the objection raised
Wisconsin was among the first of the states in the union to permit reports of social agencies to be considered by family courts and made part of the record in divorce and custody hearings. In part, this was a recognition that a qualified family conciliator or child guidance worker was to be considered an expert in the field of family relations, much as is the psychiatrist in mental health hearings or the appraiser in real estate cases. In part, this was an implementing of the spirit and purpose of the Wisconsin Family Code and a recognition that, in this state, "The trial court may, on his own initiative, gather information on the question of whether a proposed change enhances the welfare of the children. This information may be in addition to the evidence produced by either party as to whether the proposed modification will serve the best interests of the children."
However, such report from a social service or court agency cannot be a clandestine document, kept from the parties and made available only to the judge. In the Wendland Case,
"The use of reports by qualified child welfare personnel is commended. . . .
"If the reports are considered by the trial court, it should appear in the record that each party had an opportunity to examine the report and challenge its content and the scope and nature of the investigation leading to the report. Preferably the investigating welfare agent should be subject to examination and cross-examination. Further, the report should be made a part of the record, sealed if deemed advisable in the discretion of the court, so that in the event of an appeal the facts upon which the trial judge exercised his discretion in determining custody will be available for review."
The parties or their counsel are entitled to know of the existence of the report and what it contains. Either of the parties may desire to subpoena the worker who conducted the investigation for interrogation as to the nature and extent of the investigation. Either party may desire to call as witnesses other persons who will testify as to matters contained in the report. At the very least, the parties or counsel are entitled to know about all reports and memoranda that will be considered by the judge in reaching his determination. Even in this most delicate and sensitive area, secrecy is abhorrent and secret or undisclosed reports are not to be considered or relied upon by the trial court.
Complaint is made that the trial court did not order the defendant to pay, or at least contribute to payment of the ex-wife's attorney fees. On the issue of whether an ex-husband is to pay for the lawyer for the ex-wife, this court has said that this ". . . is a matter within the discretion of the trial court."
Here the record appears to establish no showing of need on the part of the wife nor ability to pay on the part of the husband. So the foundation for exercise of the court's discretion has not been laid. Where the interlocutory period has expired and the status of husband and wife has legally and literally ended, it would appear that a strong showing indeed must be made to justify requiring
By the Court.—Order reversed with directions that a new hearing be held and that a guardian ad litem for the child, Scott, be appointed, the fees of said guardian ad litem to be paid by the parties to this action in such percentage and on such terms as the court may prescribe.