According to CDC’s National Intimate Partner and Sexual Violence Survey, “about 41% of women and 26% of men experienced contact sexual violence, physical violence, or stalking by an intimate partner during their lifetime and reported a related impact.”

And according to End Abuse Wisconsin:

Domestic violence is a pattern of coercive, controlling behavior that can include physical, emotional, verbal, sexual, financial, and other abuse. Domestic violence is more than physical violence. It can include threats, harassment, putting someone down, pressuring someone around sex, controlling finances, and other tactics to gain power and control.

Domestic Violence and Family Law

Domestic violence is frequently an issue in family law cases. Unfortunately, even after someone leaves their abusive partner, interactions between the parties in family cases are often still affected by this imbalance of power and control. Furthermore, an abusive party may continue behaving coercively and controllingly toward the other party long after their family law case has concluded.

In Wisconsin, legal custody refers to the right and responsibility to make major decisions concerning the child,¹ including decisions regarding education, nonemergency health care, and religion.² Legal custody is often a much lower priority for parents than physical placement, which involves who the child lives with and where they spend their time.³

Placement is more day-to-day and custody touches on more overarching concerns. However, in family cases involving domestic violence, court decisions about legal custody can be especially important.

Under Wisconsin law, the court shall presume that joint legal custody is in the best interest of the child (with some exceptions).⁴ Joint legal custody of a child requires the parents to communicate about major decisions regarding their child and that the parties cooperate and come to agreements about these decisions. Unsurprisingly, when the abusive party is attempting to exercise power and control over the other party, it is difficult for these parents to share legal custody of their child.

Sometimes, when an abusive party has joint custody of the children, they will use this decision-making power to coerce or control the other party. For example, an abusive party could, for no legitimate purpose, refuse to agree that their child should get their driver’s license at 16 years old. For the abuser, this presents an opportunity to bargain using their decision-making power, only agreeing to allow the child to get their driver’s license if some other unrelated condition is met. An abusive party can also keep the lines of communication open with the other party more than necessary under the guise of talking about the children, while using these opportunities to continue emotionally abusing or harassing the other party.

Wis. Stat. section 767.41(2)(d)(1) states in part that:

if 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.

This presumption can be rebutted only if the party who committed the battery or abuse meets certain conditions.

This statute can be useful tool for family law attorneys with clients who have experienced domestic violence at the hands of the other party – triggering this presumption gives their client a much better chance at being awarded sole custody of the children.

In addition, a party with a domestic abuse injunction against the abusive party can ask for the court to take judicial notice of their injunction to attempt to trigger the presumption. This, in turn, can reduce the amount of abuse their client is subjected to at the hands of the other party.

Section 767.41(2)(d)(1) Has Some Limitations

First, according to End Abuse Wisconsin, more than half of survivors of domestic violence who go through family court are unrepresented. Many unrepresented parties don’t know the importance of raising the issue of domestic violence, the effect that this can have on legal custody, or how to articulate this issue in a way that is persuasive to the court.

Second, Wisconsin’s statutory definition of domestic abuse does not address all forms of domestic violence. Wis. Stat. section 813.12(1)(am) lists the actions that are considered domestic abuse as:

• intentional infliction of physical pain, physical injury, or illness;

• intentional impairment of physical condition;

• first, second, or third degree sexual assault;

• stalking;

• damaging property that belongs to the individual that is being abused; and

• threatening to engage in any of the previous five actions.

Even if the court finds by a preponderance of the evidence that a party has engaged in a serious incident or pattern of nonphysical of domestic violence, such as emotional, verbal, or financial abuse, this alone will not trigger the rebuttable presumption under section 767.41(2)(d)(1).

Third, section 767.41(2)(d)(1) requires that 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. Often, while in an abusive relationship, a survivor of domestic violence is not in a position to collect evidence of the abuse that they are experiencing.

In many cases, this leads to a survivor of domestic violence having nothing but their testimony as evidence. Often, especially when the abusive party denies the allegations, these situations leave the court unable to find a preponderance of evidence that the rebuttable presumption against awarding joint custody should be triggered.

What Now?

It is helpful for attorneys to ask for an official finding of domestic abuse from the court. In some cases, if they feel the evidentiary standard for domestic abuse has been met, attorneys may need to draw the court’s attention to this shift in presumption against awarding joint legal custody by citing to the statute or respectfully asking the court official to reconsider. Unrepresented parties may be encouraged to use layman’s terms to raise the same issue.

Domestic violence often plays a significant role in family law disputes, adding complexity to custody decisions. Section 767.41(2)(d)(1) offers a crucial legal pathway for individuals facing domestic abuse to seek sole custody, ensuring they are not forced into joint custody arrangements with their abuser. However, while this statute provides important protections, it is not without its limitations.

This article was originally published on the State Bar of Wisconsin’s Public Interest Law Section Blog. Visit the State Bar sections or the Public Interest Law Section web pages to learn more about the benefits of section membership.

Endnotes

¹ Wis. Stat. § 767.001(2)(a).

2 Wis. Stat § 767.001(2m).

3 Wis. Stat. § 767.001(5).

4 Wis. Stat. § 767.41(2)(am).