As family law attorneys, our clients frequently come to us regarding difficult family conflicts. At times, the families and clients we work with have been affected by domestic abuse. In such cases, our primary and immediate objective is to protect the safety of our clients and their children. Our next objective is to provide strong, experienced, and respectful legal counsel regarding their family law matter with particular consideration given to the former or current presence of domestic abuse.
This blog post discusses the primary ways in which domestic violence between two parents may affect family court proceedings involving their children.¹
What is Domestic Abuse?²
Domestic abuse can happen to anyone, regardless of gender, race, income, education, sexual orientation, age or religion. Domestic abuse is not always physical, and may occur in many forms:
- Physical Abuse. This includes (but is not limited to) slapping, hitting, punching, kicking, and physical restraint.
- Emotional Abuse. This includes (but is not limited to) extreme displays of jealousy and/or possession, intimidation, blaming, degrading and/or disrespectful behavior and comments, social isolation (i.e. preventing someone from seeing friends or family), and threats of physical or sexual violence.
- Verbal Abuse. This includes (but is not limited to) name-calling, yelling, frequent criticism, and humiliation in public.
- Sexual Abuse. This includes (but is not limited to) coerced sex acts, sexual activity following a physically abusive incident, and forcible intercourse.
- Economic Abuse. This includes (but is not limited to) refusing to share control of family finances; destroying, giving away or selling your property without your consent; and using money as a tool to control behavior.
Domestic Abuse as Defined by Wisconsin Law
Unfortunately, Wisconsin law only formally recognizes domestic abuse as physical violence or the threat of violence. According to Wis. Stat. 813.12(am), “domestic abuse” includes any of the following behaviors:
- Intentional infliction of physical pain, physical injury or illness;
- Intentional impairment of physical condition;
- Intentional damage to personal property; or
- A threat to engage in any of the above behaviors.
Additionally, to be considered “domestic abuse,” as defined by Wis. Stat. 813.12(am), the behavior must occur between adults with any of the following relationships to one another:
- 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 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.
Notably, while Wisconsin law only formally recognizes the behaviors listed above as constituting domestic abuse between adults, the presence of other non-physical forms of abuse – such as emotional, verbal or economic abuse – may also factor into a court’s decisions regarding the parties’ minor children. Thus, it is very important to be candid with your family law attorney regarding any abusive behavior that has occurred between you and the other parent, regardless of whether the abuse was physical in nature.
Impact of Domestic Abuse on Wisconsin Family Court Proceedings
If one parent has engaged in domestic abuse towards another parent, it may affect family law proceedings in a number of ways. The following provides a summary of three common ways in which domestic abuse may affect a Wisconsin family law proceeding.
1. Child Custody
Legal custody refers to a parent’s right and responsibility to make major decisions regarding their children. As a starting point, courts will assume that joint legal custody is in the best interests of the children, unless one parent has engaged in domestic abuse. If a court finds that one parent has engaged in a pattern or serious incident of inter-spousal battery or domestic abuse, the safety and well-being of the child and the safety of the other parent “shall be the paramount concerns in determining legal custody and physical placement.” See Wis. Stat. 767.41(5)(bm).
2. Physical Placement
Physical placement refers to the time during which a child is placed with either parent. During a parent’s scheduled periods of physical placement, he or she has the right to make routine daily decisions about the child’s care. When determining an appropriate placement schedule, court must specifically consider whether there is evidence that domestic abuse has occurred. See Wis. Stat. 767.41(5)(am). If the court finds evidence that domestic abuse has occurred, this evidence must factor into the court’s determination regarding what kind of placement schedule is in the child’s best interests.
In some cases, the court may order that the parent who engaged in domestic abuse have only supervised placement with their child. Supervision may be provided by another family member or by a community agency. Sometimes, a parent is required to have supervised placement until he or she completes a certified violence prevention or treatment program.
3. Domestic Abuse Injunctions and Placement Exchanges
If someone has engaged in domestic abuse as defined by Wis. Stat. 813.12(am), the person against whom the abuse occurred may ask the court for a temporary restraining order or permanent injunction to prevent future abuse.
• A temporary restraining order (TRO) orders one person to avoid certain kinds of contact with another person. TROs usually do not last longer than two weeks.
• An injunction is a more permanent restraining order that orders one person to avoid certain kinds of contact with another person for up to four years. In Dane County, Judges grant injunctions following a court hearing that occurs after a TRO has been served on the respondent. It is a crime to violate an injunction.
Most domestic abuse injunctions require the respondent to refrain from committing acts of domestic abuse against the petitioner and also to avoid the petitioner’s residence or any location temporarily occupied by the petitioner. Therefore, the presence of an injunction may impact the way in which parents communicate regarding their children. This does not mean, however, that a Judge will not grant a domestic abuse injunction if the parties have children or if there is a pending family law case. Whether the parties have children is irrelevant to the question of whether the Judge should grant or deny a domestic abuse injunction.
The possible conflict between a custody and placement order and an injunction may be resolved in two ways. First, the injunction may specify that certain communication – such as communication regarding the care and well-being of parties’ children – is permissible and/or that in-person contact is permitted solely for the purpose of exchanging children pursuant to a court-ordered placement schedule. Or, the family court may adjust the custody and placement order to accommodate an injunction. Both an injunction and a custody and placement order may be tailored to fit the unique circumstances of each family.
Therefore, an individual who has experienced domestic abuse should not avoid seeking a domestic abuse injunction solely because they share children with their abuser or because there is a pending family law matter.
Resources for Victims of Domestic Abuse
First, if you or someone you know is in immediate danger, call 911 to be connected with your local police department.
Second, if you or someone you know is experiencing domestic abuse, consider contacting one of the following resources for more information on safety planning, crisis intervention, emergency housing, and other topics:
• Domestic Abuse Intervention Services (located in Dane County, WI), at 608-251-4445.
• Milwaukee Women’s Center (located in Milwaukee County, WI), at 414-671-6140.
• See End Abuse Wisconsin to locate resources available in your community.
Third, if you are seeking an attorney knowledgeable in domestic abuse cases and experienced in representing clients in family law cases involving domestic abuse, consider contacting one of our family law attorneys in Madison at 608-257-0040 or Milwaukee at 414-271-8650 to schedule a consultation.
¹ This blog post does not address legal considerations with respect to child abuse.
² Information obtained from Domestic Abuse Intervention Services (DAIS). See: https://abuseintervention.org/.
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