Domestic Abuse and Child Placement in Wisconsin

Domestic violence in a relationship can impact whether and to what extent a child spends time with the abusive parent, as part of a Wisconsin divorce, legal separation or paternity action. In Wisconsin, there are two main components of any divorce, separation or paternity order, regarding children. One of these is legal custody, which relates to the parents’ abilities to make major decisions, for children. The other primary component of child-related divorce, separation and paternity orders is physical placement, often abbreviated as “placement.” Placement refers to when the child will spend time with each respective parent, and it can also relate to where or under what circumstances such contact will occur. Placement can be agreed upon by the parents and can follow almost any schedule they mutually determine. If the parents do not agree on a placement schedule, the Court will issue an order, as to when the child spends time with each parent and what that time will look like.

Placement is often talked about in terms of “overnights” with a child, but it is also possible to have a placement order state that a parent will spend certain hours of certain days with the child. This placement time could be as short as an hour or two or as long as eight or more hours. It is also possible to specify, as part of the placement order, where the visit will occur. If there is a concern as to the child’s safety with a parent, the placement order may specify that the visit must take place in a public place. It is also possible for the placement order to specify that visits with a parent must be supervised. The supervisor could be a family member or friend, or could be a paid professional supervisor (usually a social worker or other trained child advocate).

By statute, in Wisconsin, before the Court issues a placement order, many factors must be considered. No single factor makes the decision; the Court must weigh the factors and determine, based on the facts of the case, which are most meaningful, important and persuasive. Pursuant to Wis. Stat. 767.41(5), these factors include the parent or parents’ wishes, the child’s wishes, the interaction and interrelationship of the child with his or her parents, siblings, or anyone else who may significantly affect the child’s best interest, the amount and quality of time that each parent has spent with the child in the past and changes that would be necessary for the parents to assume custodial roles in the future, and the child’s adjustment to the home and community, to name a few.  One of the factors listed in the statute is whether there is evidence of interspousal battery as described under Wis. Stat. 940.19 or 940.20(am), or evidence of domestic abuse as defined in Wis. Stat. 813.12(1)(am).

According to statute, “domestic abuse” means any of the following, engaged in by an adult family member or adult household member against another adult family member or adult household member, by an adult caregiver against an adult who is under the caregiver’s care, by an adult against his or her adult former spouse, by an adult against an adult with whom the individual has or had a dating relationship, or by an adult against an adult with whom the person has a child in common:

1. Intentional infliction of physical pain, physical injury or illness.

2. Intentional impairment of physical condition.

3. A violation of s. 940.225 (1), (2) or (3).

4. A violation of s. 940.32.

5. A violation of s. 943.01, involving property that belongs to the individual.

6. A threat to engage in the conduct under subsections 1-5 of this same statute.

Evidence of interspousal battery or domestic abuse can take many forms. Testimony itself is one kind of evidence; if the Court determines that one party’s testimony about abuse is compelling and credible, this factor may  come into play. Text messages that are threatening, from one party to the other, or which allude to abusive acts are another form of evidence. Photographs of injuries and/or recordings of incidents would also be considered. If there are police reports detailing abuse, these could also be used to show that the abuse occurred. If one party has a domestic violence restraining order against the other, the Court will consider this, also. Were one parent to have been criminally charged with and/or convicted of domestic abuse offenses or battery as described above, this would be additional indication that domestic abuse had occurred.

If the Court determines that there is evidence of domestic abuse, this will be a factor in the Court’s decision, regarding physical placement of the children. Whether this factor substantially affects the outcome of the placement part of the case can depend on many circumstances, including whether the child was aware of the abuse and any effects the abuse had, on the child.

If you are dealing with domestic abuse and seek to file a divorce, separation or paternity action, it is important that you preserve as much evidence as possible, for your custody and placement determination. We have a great deal of experience working with these issues and would be happy to discuss the unique facts and circumstances of your case, during a complimentary half-hour telephone consultation. Feel free to contact our office, to schedule the call.

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