The Domestic Abuse Presumption in Custody Cases

Drawing shows young girls inner feelings about being abusedUnder Wisconsin law there is a presumption that joint custody is in the best interest of the child. A presumption under the law means that the court will enter that order unless someone shows grounds as to why it should not be ordered. There are typically statutory factors which the court must consider when making that determination. However, the presumption for joint custody does not apply in cases where a court finds the required amount of evidence that a parent has engaged battery or abuse to the other parent.

When a case has a “domestic abuse component,” the law says the court should not award an abusive party joint or sole custody. This presumption may be overcome only if the person found to be the abuser provides evidence of all of the following: 1) evidence of completion of a batterers treatment program, and evidence that he/she is not abusing alcohol or any other drug, and 2) that it is in the best interest of the child for the offending parent to be awarded joint or sole custody taking into account all of the factors that are considered when determining the appropriate custody and physical placement for the child.

In cases where there is evidence that both parties have engaged in domestic abuse, the court will determine who was the “primary physical aggressor.” Whomever is the primary physical aggressor is the parent who will not be awarded joint custody. If the court finds that neither party was the primary physical aggressor, then the domestic abuse presumption does not apply to either parent, and the presumption of joint custody applies again.

If you are the victim of domestic abuse and you are in the middle of family law related legal proceedings, it is imperative that you bring these issues to the court’s attention at your first opportunity. This is particularly important in pre-judgment divorce and pre-judgment paternity proceedings. If you raise the concern at a later date in a post-judgment divorce or post-judgment paternity matter, when an order for joint custody is already in place, and the concern is based on facts that were available to you at the time of the divorce or initial paternity matter, the court may conclude that you have already waived your right to challenge the presumption of joint custody.

To be clear, you may not seek application of the domestic abuse presumption in post-judgment matters based on facts that were available and known to you prior to entering into a joint custody arrangement. However, if new instances of abuse happen after the entry of an order, you may request that the domestic abuse be applied in a future proceeding if the new facts and instances support an application of the domestic abuse presumption and apply the presumption is in the best interest of the children.

If you are accused of domestic abuse or there is a domestic violence injunction has been granted against you, it is important that you immediately take the necessary steps to show the court you are suitable to have joint custody and make parenting decisions for your child. These steps include, but are not limited to, completing a batterers treatment program, refraining from abusing drugs and/or alcohol, and being an appropriate parent in all other aspects.

Complicated as this may seem, the message is clear: make sure that your attorney and the court are aware of any issues of domestic abuse and interspousal battery present in your matter prior to a final order. That way, if you are the victim of the abuse, you may seek timely application of the presumption in your matter and allow the court to make a custodial decision that is in the best interest of your child. Similarly, if you are found to have engaged in acts of domestic violence, it is important that you find an experienced family law attorney who will work with you to best protect your interests.

If you have issues of domestic abuse in your case, it is important that you have an attorney help guide you through your divorce or paternity and help you seek application of the appropriate laws and presumptions. If you wish to discuss your matter with one of our attorneys, please call our office to schedule a free initial office consultation.

We welcome your comments or questions. We will do our best to try to respond. However, please be advised that we cannot give legal advice in this forum and all communications are for general informational purposes only. Communication should not be construed as forming an attorney-client relationship. This is an open forum and any information you provide may be posted and will not be held confidentially. By posting a comment or question, you are expressly giving consent for the publication of same. If you have any specific legal issues or concerns, we always recommend that you consult with an attorney in the county and state in which you reside.

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