15850 W. Bluemound Rd. Suite 304 • Brookfield, WI 53005

15850 W. Bluemound Rd. Suite 304 • Brookfield, WI 53005 • 262-788-5335

What is A Special Master/Referee with Impasse Authority and Why Does it Matter with Wisconsin Child Custody?

Under Wisconsin law, a court may appoint a third party to make specific decisions when parents can’t agree regarding child custody matters. The decision-maker, known as a special master or referee, can streamline the process and help when parents are at a standoff about certain critical choices. When the special master/referee also has impasse authority, it can matter when it comes to Wisconsin child custody issues.

A Special Master/Referee with Impasse Authority is hearing a divorced couple in their dialogue

What is a Special Master/Referee?

Wisconsin law provides that a court may appoint anyone with qualifications it deems appropriate to be a referee. This person, who may also be called a special master, will be paid a fee, and their powers will be defined and limited by court order.

The special master/referee can do things such as hear evidence from both parties and rule upon its admissibility. This individual can also put witnesses under oath, ask questions, and make a record of the evidence offered.

In the context of child custody, parents may share decision-making or child custody but agree to go through a special master/referee when they are unable to resolve specific issues. Although a person in this role is performing some of the same tasks that a judge would, the Wisconsin Supreme Court has recently made clear, that “[a] referee may share judicial labor, but the Order of Reference may not allow a referee to assume the place of the Judge.”

What is Impasse Authority?

When a special master/referee has impasse authority, he or she is granted the power to break the tie between parents. If the disagreement is about where the child should attend school, for instance, the special master/referee can hear evidence and make the choice. The same would be true for any other custodial decision indicated in the order appointing them to the decision-making role.

In 2017, in Universal Processing Services (Newtek) v. Circuit Court of Milwaukee County, the Wisconsin Supreme Court held that a circuit court judge impermissibly delegated authority to a referee. In the family context, an unpublished (but citable) appellate case was affirmed shortly after Universal.

In Rose v. Rose, 2015 AP 2646 and 2016 AP 692, the court of appeals affirmed an order by the trial judge who refused to remove a special master who was appointed to hear issues regarding placement. In that case, the parties had stipulated to use the referee, but after the divorce was over one of the parties wanted the referee removed.

The trial judge denied that motion in reliance on the parties’ stipulation, further noting that the referee’s decision was still reviewable by the court on a “de novo” basis (meaning the court could hear it from scratch without regard to the referee’s decision). All told it’s fair to say the use of referee/special masters will continue to be used in high-conflict or complex family law cases, albeit with detailed parameters.

When you can’t agree on a pediatrician or which school your child should attend, time is usually of the essence. Using a third-party arbitrator or special master/referee to resolve custody disputes can be an efficient and effective means for parents to reach a resolution.

When the third-party decision-maker has impasse authority, he or she will be able to make an informed decision and manage the issue much more quickly than going through the court system.

However, before agreeing to resolve custody/placement issues in this manner, you should consult with an experienced Wisconsin family law attorney. It is important to know what parameters to set before agreeing to appoint a referee or stipulating to a specific person.