For initial determinations of custody in a divorce, Wisconsin law states that the court must presume that it is in the best interests of a child for the child’s parents to have joint legal custody, or decision-making power. In other words, the State believes that it is best, by default, for children to have significant relationships with both parents, and for both to be involved in major aspects of the child’s life. As a result of this presumption, unless a party to a divorce involving minor children can demonstrate to the court why it is not in the best interests of the children for joint custody to be ordered, the court will order joint custody of the child. Ordinarily, in assessing whether one parent should have sole custody of the child, the court will look at the facts of the case in light of certain statutory factors, such as whether both parents are able to care for the child and whether both parents want to play an active role in parental decision-making. However, if a party to a divorce involving children can demonstrate to the court that there has been a serious incident or pattern of abuse, the court will not presume that joint custody is in the child’s best interests.
If a parent can provide evidence to the court that there was abuse in the marital relationship, the court will then proceed on the assumption that it would be harmful to the child for the abusive parent to have any custody rights. Evidence of abuse may be testimony of the abuse survivor, that person’s medical or mental health care provider, or a witness to the abuse. Evidence could also be offered in the form of police testimony or a criminal conviction resulting from the abuse. The standard for proving abuse is fairly low; if the court finds that it is more likely than not that the alleged abuse occurred, that is enough.
Once a party establishes that there has been a pattern or serious incident of abuse, the presumption that joint custody is in the best interests of the child cannot be reinstated until certain conditions are met. The alleged abuser, should she or he wish to pursue legal custody of the child, must provide documentation that he or she has successfully completed a certified batterer’s treatment program. The abuser must also provide documentation that he or she is not under the influence of any drug or alcohol. This evidence may be provided in the form of a clean drug and alcohol screening, and by corroborating witness testimony. If this evidence is provided, the court will then look at a list of statutory factors, to assess whether joint custody is in the best interests of the child. These factors include, but are not limited to things like what the other parent wants, what the child wants, what kind of relationship the child has with the parents and any siblings, the age of the child, and whether the physical or mental health of the child or a parent affects the child’s well-being.
Domestic violence is a complex issue with many potential ramifications to a divorce process. It is important that you seek the representation of an experienced family attorney, if you have been abused and are considering filing for divorce. For abuse survivors, the timing and arrangement of an initial filing can be fraught with risk to the victim and, potentially, to the children. Your family attorney can work with you to make sure that you and your children are aware of community resources available to you, designed to help people in exactly your position. It is also important to raise abuse issues as soon as the legal process commences, to make sure that the court is aware of the facts of your case, and is able to make the appropriate decision. If you are an alleged abuser, it is also very important for you to contact an attorney, to make sure that fraudulent allegations of abuse do not negatively impact your ability to have legal custody of your child. If you did engage in abuse in the past, you must carefully show the court that you have done what is necessary to prove that any abuse you may have engaged in will not affect the well-being of your child, and that you will be a stable and reliable parent. If you are dealing with domestic abuse issues, do not hesitate to contact our office, to set up a free half-hour initial consultation.