July 13, 2015 – A state appeals court has ruled that a spouse waived her right to invoke a presumption restricting child custody based on domestic abuse when she stipulated to joint custody of minor children in the original divorce proceedings with her husband.
Under Wis. Stat. section 767.41(2)(d), there’s a presumption that joint or sole legal custody is not in the best interest of the child if the court finds that a one party has engaged in a pattern or serious incident of interspousal battery or domestic abuse.
After Jill Glidewell agreed to a joint custody arrangement with her spouse, Herbert Glidewell, she sought to reopen the divorce judgment and to modify custody based on the presumption, alleging Herbert engaged in violence against her while married.
The circuit court denied Jill’s request, concluding she waived the presumption. However, the court allowed a custody modification; Herbert would have the right to make schooling decisions and Jill would have the right to make health care decisions.
Jill appealed, arguing that she did not waive the presumption when stipulating to a joint custody order. But in Glidewell v. Glidewell, 2014AP1957 (July 7, 2015), a three-judge panel for the Wisconsin Court of Appeals agreed that Jill waived the presumption.
“Jill waived her right to raise the domestic violence presumption set forth in Wis. Stat. § 767.41(2)(d) in this post-judgment motion because the domestic violence she relies on occurred prior to her original divorce judgment,” wrote Judge Kitty Brennan.
The panel also affirmed the circuit court’s ruling on continued joint custody with divided authority on medical and education decisions. “As the circuit court noted in a thorough and well-reasoned decision, both Jill and Herbert have been unable to put their anger for each other aside in order to do what is best for their children,” Brennan wrote.
While their divorce was pending and before the birth of their second child, Jill filed for and received a domestic abuse injunction against Herbert.
The domestic abuse injunction was still in force two years later, in 2011, when the parties stipulated to placement and custody of the children. Jill received placement 64 percent of the time and Herbert received placement 36 percent of the time.
During a divorce hearing, Jill testified that the placement arrangement would be in the children’s best interest. The court’s final judgment acknowledged the domestic abuse injunction, but incorporated the parties’ child custody agreement.
After the divorce judgment was entered, Jill began filing motions for modification of custody and placement. She argued the court did not properly consider evidence of domestic violence to award joint custody, and should have applied the presumption.
But the circuit court ruled that section 767.41(2)(d) does not prohibit a party from waiving the right to assert the presumption, and Jill waived it. The appeals court agreed, noting the statute permits but does not mandate courts to consider domestic abuse.
“Here, the legislature chose to require the parties and guardian ad litem to ask the court to consider whether there was a pattern or serious incident of domestic abuse, and Jill chose not to do so at the time of the original divorce,” Judge Brennan wrote.
The panel also raised estoppel, noting “fairness and principles of judicial administration support the court’s conclusion that she waived application of the presumption.”
However, the appeals court noted that Jill would be free to assert the presumption in the future, if new facts support an application of the presumption in the best interest of the children. “However, she has not set forth new evidence here,” Judge Brennan wrote.
Finally, the panel noted the circuit court’s conclusion that the Glidewells’ anger towards each other “clouds their judgment and prevents them from making important collective decisions on behalf of their children,” while both have significant bonds with them.
Thus, the panel agreed with the circuit’s decision to modify the custody order and divide decision-making authority on health care and education.
“Jill and Herbert have collectively made decisions to hurt each other at the expense of their children, and now they must live with the consequences of those actions.”
