In re The Marriage of Valadez, an ongoing divorce case in Waukesha County, has been the subject of consternation on both the part of legal journalists and members of the Wisconsin family law b​ar (notably for entirely different reasons).

The battle in the courtroom is ongoing, with the Wisconsin District 2 Court of Appeals ruling in February 2022 on threeseparatecontempt findings issued by the trial judge, who thereafter recused himself from the case.

The Case

Underlying the legal drama rests allegations of domestic violence made by Ms. Valadez against Mr. Valadez. The trial judge found that Mr. Valadez had engaged in domestic violence against Ms. Valadez, but that he had completed sufficient treatment through his counselor to overcome the presumption against batterers having joint or sole custody.

Based partly on this, Mr. Valadez was awarded sole custody of the minor children in the case. Ms. Valadez appealed the decision.

Wis. Stat. section 767.41(2)(d)1.a. states that that

[I]f the court finds by a preponderance of the evidence that a party has engaged in a pattern or serious incident of interspousal battery, ... or domestic abuse, ... there is a rebuttable presumption that it is detrimental to the child and contrary to the best interest of the child to award joint or sole legal custody to that party.

In December 2021, the appeals court reversed and then remanded the Waukesha Circuit Court’s opinion in Valadez, publishing a decision finding that Mr. Valadez’s treatment through his counselor (who was a Licensed Professional Counselor but not certified to provide batterers treatment) was insufficient.

Rather, the court read the statute strictly, holding that to rebut the presumption a batterer must show that, by preponderance of the evidence, they have “successfully completed treatment for batterers provided through a certified treatment program or by a certified treatment provider.”

Impact on Children of Living with Domestic Violence

It seems intuitive that witnessing domestic violence can cause psychological trauma in children.

Indeed, ample evidence links exposure to domestic violence with mental, behavioral, cognitive, and developmental problems which can last well into adulthood, and there is an obvious concern for the immediate physical safety of the children. All of these issues have only been exacerbated by the COVID-19 pandemic.

However, the impacts go beyond solely mental or immediate physical health concerns. Children exposed to domestic violence are more likely to become either victims or perpetrators of domestic violence as adults. Exposure to domestic violence as a child even raises the likelihood of experiencing serious health issues as an adult, including asthma, heart disease, and stroke. Protecting children from exposure domestic violence is therefore imperative not only for their immediate health and safety, but for their lifelong well-being.

The Lesson: The Importance of Certified Treatment

While section 767.41(2)(d)1.a. and the holding in Valadez have direct relevance to family court cases in Wisconsin, the lesson is also that it is important for batterers to receive proper treatment in order to protect children from the above-described effects.​

There are multiple schools of thought when it comes to how to facilitate batterers treatment, some of which have proven more effective than others when examined using recidivism rates as a measuring success of treatment. In Wisconsin, “certified” for the purposes of section 767.41(2)(d)1.a. means certification through the Wisconsin Batterers Treatment Provider Association (WBTPA), an organization which publishes standards for treatment programs seeking certification status under this statute.

Notably, one of the program requirements for certification is that it must address the impact of partner violence on children.

The ruling in Valadez makes it clear that only certifications through the WBTPA are sufficient to meet the standard set forth in section 767.41(2)(d)1.a. These are demanding programs, with some taking up to six months and 50 sessions to complete.

This level of rigor, while daunting, is deemed necessary simply because of the complexity of the problem. The Power and Control Wheel is a widely known and accepted method of conceptualizing the complex and varied ways in which domestic violence can occur and the dynamic between the abuser and the victim. The WBTPA standards require integration of this conceptualization into any certified program.

According to the Domestic Abuse Guidebook for Wisconsin Guardians ad Litem, domestic abuse is a complex problem that manifests itself in different ways, specifically noting that narrowly-tailored programs such as anger management are both insufficient and ineffective at addressing the causes of domestic violence. The WBTPA similarly notes that anger management, couples counseling and individual therapy are not substitutes for engaging in certified batterers treatment.

In short, domestic violence is a complex problem requiring a detailed and multifaceted approach to address. Only by implementation of, and engagement in, these thorough programs can the domestic violence be addressed and children be protected.

This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.