The Impact of Domestic Violence on Legal Custody Orders in Wisconsin: Follow-Up

The Impact of Domestic Violence on Legal Custody Orders in Wisconsin: Follow-Up

This blog entry will provide a more in-depth discussion about the ways domestic violence can impact legal custody determinations, in Wisconsin. When domestic violence is part of a relationship, making decisions together as parents can be impossible, and it stands to reason that a parent who has abused the other should not make major decisions for a child. The law in Wisconsin supports parent survivors and children by tipping the scales against an abuser, in the context of legal custody determinations.

Whether a parent has engaged in acts of domestic violence can impact the outcome of a legal custody determination, in Wisconsin. As mentioned in a previous blog entry, “Legal custody” relates to a parent’s ability to make major decisions for his or her children. Some examples of what would be considered a “major decision” are provided in Wis. Stat. 767.002(2m). These include, but are not limited to educational decisions, medical decisions, whether a minor may marry, whether a minor may enter military service and whether a minor may obtain a driver’s license. In addition to the decisions specified in the statute, parties may agree that other decisions fall under the category of legal custody. For example, parties frequently agree that whether a child may participate in extra curricular activities should be a custody decision.

Note: Legal custody is not connected to where or with which parent a child will spend time (this is “physical placement”). Legal custody refers only to decision-making.

Wisconsin presumes that joint legal custody is in the best interests of children. Joint legal custody means that both parents have the ability to make these major decisions, and neither parent’s custody rights are superior. However, before a custody decision is made, the parents must talk with one another and try to agree. Neither party may make a custody decision without the input and agreement of the other. Ideally, the parties would reach an agreement on custody decisions. If they do not agree, one party much file a motion to address the issue, and the Court would need to step in, to make the decision.

Because joint legal custody is a presumption, the Court will assume, at the outset of every case, that both parents will have legal custody of their children. However, this presumption may be rebutted, if there is evidence of domestic violence in the relationship. Rebutting a legal presumption means that it no longer applies; if the presumption of joint legal custody is rebutted, the Court would not assume that joint legal custody is best. In these circumstances, the Court may say that only one parent would be entitled to make custody decisions for a child. This is referred to as “sole legal custody.” The parent without legal custody would have no say in decisions for the child, and all decision-making power would rest with the parent who has sole legal custody.

The Court may order sole legal custody to one parent (rather than joint legal custody to both) if it is in the child’s best interest and if the Court makes a finding that the parties would not be able to cooperate to make decisions together, for their child. Along these lines, Wis. Stat. 767.41(2)(b)(2)(c) provides that, if there is evidence of interspousal battery or domestic abuse, there is a presumption that the parties will not be able to work together to make decisions for the children, and sole legal custody may be awarded. Interspousal battery and domestic abuse are both defined by criminal statutes.  “Evidence” could be anything from an abuser’s criminal conviction to the testimony of one of the parties, at a hearing. If the Court finds that such evidence has been presented and is credible, there is a rebuttable presumption that the parties cannot work together to make future decisions for the child. Under these circumstances, the Court may order sole legal custody to one parent.

The Court may also order sole legal custody under Wis. Stat. 767.41(2)(d) to one parent if it finds, by a preponderance of the evidence, that one party has engaged in a pattern or serious incident of domestic abuse or interspousal battery, as defined by statute.  A “preponderance of the evidence” means that the Court must find that it is more likely than not that this abuse occurred. If the Court makes a finding that the abuse did occur, there is a rebuttable presumption that it would not be in the child’s best interest, and it would be detrimental to the child, for the abusive parent to have legal custody. To rebut the presumption and regain legal custody, the abuser would need to show that they are free from drugs and alcohol, that they have completed a certified batterer’s treatment program, and that it is in the child’s best interest for the abusive parent to have legal custody. In this way, if an abuse survivor can show that it is more likely than not that abuse occurred, the default for the Court will be to order sole custody to the survivor, unless the abuser can prove certain things.

If the Court finds that both parents were violent with one another, the Court will make a finding as to which party was the “primary aggressor,” which is determined after weighing certain factors in the statute, such as whether a party acted in self-defense and how severe the injuries were.

Domestic violence in the home can substantially impact a child’s mental and physical health. We work with domestic violence issues regularly, and our firm’s focus is solely on family law matters. Feel free to call for a free half hour telephone consultation, to discuss the unique facts and circumstances of your case.


Published by David Kowalski

Attorney David Kowalski is the founding owner of Kowalski, Wilson & Vang, LLC, handling all family law cases from divorce, paternity, child custody, termination of parental rights, restraining orders, and guardianships.

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