If you have children with an abusive partner and are contemplating divorce, legal separation or a paternity action, you probably have questions about whether a parent who was abusive to the other parent will still be able and allowed to make decisions for your children. This blog will clarify the ways in which Wisconsin family law addresses this issue.

The term “legal custody” refers to parents’ ability to make major decisions for children. It is important to note that legal custody does not in any way relate to whether a parent can see or spend time with a child (spending time with a child is referred to as “physical placement,” in Wisconsin family law, and the impact of domestic violence on placement will be covered in a future blog). Custody decisions set forth in the statutes range from medical and educational decisions to religious choices and whether a child may join the military or marry, prior to the age of 18. Other than the decisions specified by statute, parents can also agree that other child-related decisions are custody decisions; families could choose to make involvement in extracurricular activities a custody decision, or they could even say that haircuts for the children must be discussed and agreed-upon, as a custody decision.

Per statute (Wis. Stat. 767.41(2)(am)), Wisconsin presumes that joint legal custody is in the best interests of children. “Joint legal custody” means that both parents have the right to make these major decisions, but that prior to making a custody decision, the parents must consult with one another and attempt to agree. When parents have joint legal custody, neither parent’s custody rights are superior to the other. In the alternative, “sole legal custody” refers to only one parent having decision-making power. When one party has sole legal custody, he or she could make decisions for the children without the input or agreement of the other parent. An court order giving only one parent legal custody of a child is usually reserved for situations wherein the other parent’s decision-making is found to be questionable, perhaps due to criminal history, mental health issues, drug or alcohol dependency, and so on. Whether there has been domestic violence in the relationship can also impact whether the Court orders joint legal custody for both parents or sole legal custody, for only one.

Wisconsin presumes that joint legal custody is in children’s best interests. This means that, absent any substantial issues mentioned above, the Court’s default will be to order joint legal custody, so that both parents play a role in making decisions for the children. However, this presumption can be rebutted, or negated, 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, under Wis. Stat. 767.41(2)(d). “Preponderance” means that the person trying to prove that the other spouse has been violent needs to present evidence and/or testimony that convinces the Court that it is more likely than not that the abuse occurred. If the Court finds the evidence sufficient, the Court will then assume that the abuser should not have legal custody of the child, and the other parent will have sole legal custody, unless the abusive parent can show that he or she has completed a certified batterer’s treatment program, that there is no issue with drug or alcohol abuse, and that joint legal custody really is in the child’s best interests. Therefore, if the Court finds that there has been domestic violence, the abusive parent will have the burden of proving that she or he should have custody of the child. Until that burden is met, the Court will order the non-abuser parent to have sole legal custody of the children.

If there has been domestic violence in your relationship, you have children, and you are considering separating from your abusive partner, there may be ways to proceed with your case to minimize the role the abusive parent may play, in your children’s lives. We work with these issues regularly, and we would be happy to speak with you about the unique facts and circumstances of your case. Feel free to call our office, to set up a no-cost telephone consultation.