As discussed elsewhere in this blog and in our website, legal custody is the right to make major decisions for your minor child, such as whether to allow your child to marry, enter the military, or change schools. Under Wisconsin law, there is a strong presumption that joint legal custody is in the child’s best interest.
That presumption flips, however, in families where domestic violence is present. See Wisconsin Statutes Section 767.41(2)(d). If the court finds that a party has “engaged in a pattern or serious incident of interspousal battery” or “domestic abuse,” the court must presume that awarding that party custody – sole or joint – would not be in the child’s interest. The party that engaged in domestic violence can rebut the “domestic violence presumption” and obtain custody of the child, but only under conditions specified in the statute. The party must show the court: (1) that they have completed a domestic abuse treatment program; (2) that they are not abusing alcohol or other drugs; and (3) that awarding custody to that party is in the child’s best interest.
A confusing, convoluted section of the statute addresses families in which both parties have committed acts of domestic violence. Under these circumstances, the court must consider specified factors to determine which party was “the primary physical aggressor.” If the court finds that neither party was the primary physical aggressor, then the joint custody presumption, rather than the domestic violence presumption, applies.
In the 2015 case Glidewell v. Glidewell, the Wisconsin Court of Appeals decided that once a party waives application of the domestic violence presumption by agreeing to joint custody, the party may not subsequently invoke the domestic violence presumption on the basis of incidents that occurred before the joint custody agreement.