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.

What is the Difference Between Child Custody and Physical Placement?

As a new family law attorney, part of my challenge has been understanding when and how to use different legal terms involved in family law cases. Two of the terms that stump new attorneys, and clients as well, are “custody” and “physical placement.” Attorneys who have been practicing for some time tend to use the terms interchangeably, but have an internal recognition that they each address something distinctive. While they are often coupled together in legal documents, they are treated as two separate legal terms of art, and addressed in court as such.

In Wisconsin, legal Custody, or “child custody,” regards the right and responsibility of either parent, both parents, or another such person granted legal custody of the child, to make major decisions concerning the child(ren). Such decisions include: where the child goes to school, what religion the child practices, whether or not the child may obtain a driver’s license, or receive healthcare for nonemergency reasons (such as orthodontia). In Wisconsin, there is a presumption of joint legal custody, or shared custody, which is disturbed only if there is evidence that one of the parents should have primary or sole custody. Primary or sole custody is when one parent, typically the parent with primary placement of the child, has the chief decision-making authority for decisions concerning the child. Sole custody is the condition under which only one of the parents has legal custody.

Physical Placement in Wisconsin is the condition under which a party has the right to have a child/children physically placed with that party and has the right and responsibility to make, during that placement, routine daily  decisions regarding the child(ren)’s care, consistent with major decisions made by a person having legal custody. There are a few standard placement schedules (e.g. “50/50 placement”) that parents often work from, but every placement schedule is created on a case-by-case basis, addressing the specific schedules and needs of the parents and children alike.

The most common situation is when the parents agree to the presumption of joint legal custody, but have disagreements over the physical placement schedule of the child(ren). In Wisconsin, if the parents cannot agree on a physical placement schedule, then the court is required to order mediation. Depending on the county your case is in, the first mediation session may be free. If that does not work, the court is then required to appoint a Guardian ad Litem (GAL) who is an attorney appointed to represent the best interests of the child(ren).  He or she conducts an investigation and then makes a recommendation as to what they believe is in the best interest of the child(ren).  Depending on the county, the court may also order a custody study to determine the condition of the child’s home, each parents performance of parental duties and responsibilities relating to the child, and any other matter relevant to the best interest of the child. The court then uses these recommendations, other evidence the parents provide and the wishes of the child to make a determination on placement. The same process is used if the parents cannot agree on who will be awarded legal custody for the child.

If you have any questions regarding legal custody and physical placement, please contact our office at 414-258-1644 to schedule a free initial office consultation or visit our website for more information.


-Madeleine Thompson-Davies

What is the Difference Between Sole Legal Custody and Joint Legal Custody of My Children?

In Wisconsin, legal custody means the ability or authority to make all major decisions making concerning a minor child.  For example, the consent to marry, consent to enter military service, consent to obtain a motor vehicle operator’s license, authorization for non-emergency health care and choice of school and religion).  The emphasis is on “major” and parties usually face these types of decisions over where the children will attend school or daycare and major medical decisions such as medication and elective surgery.

The presumption in Wisconsin is for joint legal custody.  This means most of the time, the court will order joint custody over the minor children.  If the parties have joint legal custody of a child, both parties must jointly agree on all major decisions.   However, with respect to the right to make routine daily decisions regarding the child’s care, the party who has physical placement of the child at the time the decision is to be made.

Parents often argue or disagree about such things as haircuts, clothing, whether to give children over-the-counter medications, bed times, homework, non-physical discipline or punishments, etc.  Unfortunately, these are not considered to be major decisions and, therefore, there is no easy way to resolve those types of disputes.  Each parent has the right to make decisions regarding those “minor” issues when the children are in his or her placement.

If a party is awarded sole (full) legal custody of a minor child, they do not have to obtain permission from the other parent.  However, it is not very common for a party to be awarded sole custody.  The only time this occurs is if a parent is unwilling or unable to performing parental duties, if there is a compelling reason not to award joint custody or if the parties are unable to cooperate in the future.  Common examples of some reasons a court would order sole custody include drug or alcohol addiction, incarceration, abuse of the child or other parent, mental illness or simply being absent such as parents who are uninvolved or live out of the state.

To discuss your case and your custody questions, contact us at 414-258-1644 to schedule a free initial office consultation or visit our website at Nelson, Krueger & Millenbach, LLC for more information.

Child Custody and Placement in Wisconsin


  1. WHAT IS THE DIFFERENCE BETWEEN CUSTODY AND PLACEMENT OF MY CHILDREN?Legal custody in Wisconsin simply means the right of a parent to make major decisions, such as school, medical and religion, for the minor children. In Wisconsin, the presumption is that there will be joint legal custody. This means that both parents have an equal say in what happens to the children regarding major decisions. Major decisions cover such matters as non-emergency health care and choice of school and religion. Others include parental consent to marry, obtain a driver’s license, or join the military. The court can only award sole custody to one party if it finds that one party is incapable of cooperating or exercising custodial duties, conditions exist which would prevent the exercise of joint custody or there has been domestic or child abuse.

    Placement means physical placement or visitation. In other words, who the child spends time with and for what amount of time. The primary consideration in making this determination is what is in the best interest of the children. There are numerous factors that the court must take into account when determining the placement schedule. These factors are then applied to the specific facts of your case.

    The attorneys at Nelson & Davis, LLC will be able to evaluate the facts of your case and advise you as to the best course of action or the likely result of a placement dispute.

  2. DOES THE COURT ALWAYS AWARD EQUAL, SHARED PLACEMENT?There is a misconception that certain types of placements schedules are mandated or presumed. Just as there is no preference as to the mother or the father for placement, there is no presumption or requirement for equal placement. The court must make a decision based on the criteria and factors referenced above. The law in Wisconsin is simply that the court shall set a schedule in which there are regular and meaningful periods of placement that maximizes the amount time the child spends with each parent. The court is also prohibited from considering one parent over the other based on sex or race. However, it may be determined that it is in the best interests of the child to be primarily placed with one parent or that there should be some form of a shared placement schedule.
  3. IS THERE A NORMAL OR STANDARD PLACEMENT SCHEDULE?As stated above, there is no presumption as to specific kind of schedule. There are many factors that this decision is based upon including work schedules, schedules of the children in terms of school and activities, proximity of the residences of the parents, the child’s adjustment or ability to adjust to transitions, etc.

    The starting point to many schedules is usually alternating weekends which are from Friday until either Sunday evening or Monday morning. If one parent does have the majority of the time, it is also fairly common for the other parent to have at least one evening or overnight period of placement during the week. A placement schedule is considered to be shared if one parent has 25% of the overnight placement time or more. Shared placement schedules are usually discussed in two week blocks of time.

    There are many options when scheduling placement. Schedules can vary based on the unique needs of your family. Placement orders can be very general and flexible or very specific. The attorneys at Nelson & Davis, LLC will be able to discuss scheduling options and suggest a variety of placement schedules to fit your goals in your case.

  4. WHAT HAPPENS IF WE CANNOT AGREE ON PLACEMENT?There is a specific procedure that parents must follow in a custody or placement dispute. Clearly, it is better for both you and your children to resolve matters outside of this procedure which is time consuming and costly. However, that is not always possible.

    First, except in unusual situations, both parties must attend mediation. Mediation is a process in which the parties meet with a neutral, third-party who is trained in dispute resolution. Discussions and statements made in mediation are confidential and cannot be used against in you in your divorce or paternity case. You have the option of attending mediation through the county of your residence which is often available at no or very low cost. Or, you can hire a private mediator. There are very good mediators available in southeast Wisconsin and many people are able to resolve their custody and placement disputes through this process. Sometimes, mediation is deemed not to be appropriate. This usually only happens when there is domestic or child abuse or one party refuses, or is unable, to participate. If a party refuses to attend mediation, the court would generally consider that a factor which would negatively impact upon his/her custody or placement position.

    Second, if mediation fails, a Guardian ad Litem must be appointed. A guardian ad litem, commonly referred to as a G.A.L., is an attorney who is appointed to represent the best interests of your child. The G.A.L. does not represent either you or your child but, instead, is charged by the court with conducting an investigation and making a recommendation as to what he or she thinks is in your child’s best interests. They will usually meet with the parties, talk with the children and talk with other potential witnesses or resources such as friends, relatives, teachers, therapists, etc. The court does not always follow the recommendation of a G.A.L., but usually does strongly consider it. Both parties are required to pay the G.A.L. fees, which includes a deposit as well as his or her hourly fees.

    Third, in some counties such as Waukesha and Washington, a custody/placement study may also be required. During a custody/placement study, the court will appoint a social worker from the county social services department to conduct an investigation which is separate from the investigation done by the G.A.L. The difference between a custody/placement study and a G.A.L. investigation is that the social worker may testify at a trial or hearing while the G.A.L. is an advocate for your child’s interests and, therefore, may not testify. The social worker also makes recommendations based upon their investigation which may include a referral for services such as counseling, psychiatric or alcohol/drug evaluations, anger management counseling or parenting classes. Both parties also are usually required to pay one-half of this cost which varies depending on the county.

    Many people are able to resolve their placement disputes with the assistance of a G.A.L. or the custody/placement study social worker. However, in the event the parties are unable to do so, a trial or hearing is conducted and the court decides what the placement schedule and custody will be. The attorneys at Nelson, Krueger & Millenbach, LLC will advise you as to what the likely result and cost will be for a trial.