## Facts

- Julie C. Valadez and Ricardo Valadez married in 2004 and had four minor children; two children were diagnosed with autism.
- In 2017, Ricardo was arrested for misdemeanor domestic abuse against Julie.
- Julie filed for divorce and sought a domestic-abuse injunction.
- Ricardo stipulated to a four-year injunction that prohibited him from contacting Julie and from entering the marital home where Julie lived with the children.
- The circuit court entered the stipulated injunction and initially granted Julie temporary sole legal custody; Ricardo received supervised placement.
- In the related criminal case, the State reduced the domestic-abuse charge to disorderly conduct, in part because Ricardo completed counseling with Tyler Loomis, a licensed professional counselor; Ricardo pled no contest and was sentenced.
- While the divorce remained pending, and over Julie’s objection, the circuit court amended the temporary order based on a guardian ad litem’s recommendation and ordered equal physical placement.
- At the divorce trial, Julie argued that Ricardo should not receive custody because the circuit court found he had committed domestic abuse and because his counseling did not satisfy Wis. Stat. § 767.41’s requirements for rebutting the custody presumption.
- The circuit court found Ricardo had engaged in a pattern of domestic abuse against Julie, but concluded Ricardo rebutted the statutory presumption by completing what the court called the “functional equivalent” of a domestic-abuse/batterers’ treatment program through counseling and related services.
- The circuit court awarded Ricardo sole legal custody and ordered joint, equal physical placement.
- Julie appealed the custody and placement portions of the divorce judgment.

## Issues

1. After a circuit court finds a pattern of domestic abuse triggering Wis. Stat. § 767.41(2)(d)1.a.’s presumption against awarding custody to the abusive parent, can that parent rebut the presumption without proof of batterers’ treatment from a certified treatment program or a certified treatment provider?
2. When a circuit court finds a pattern of domestic abuse, did the court err by ordering shared, equal physical placement without showing that the safety and well-being of the children and the victim of abuse were the controlling concern under Wis. Stat. § 767.41(5)(bm)?

## Decision

- The Wisconsin Court of Appeals reversed the custody and physical placement determinations and remanded for further proceedings.
- The circuit court erred as a matter of law by treating Ricardo’s noncertified counseling as the “functional equivalent” of batterers’ treatment “from a certified treatment program or a certified treatment provider,” as required by Wis. Stat. § 767.41(2)(d)1.a.
- Because the statutory presumption was triggered by the pattern-of-abuse finding and was not rebutted under the statute’s terms, the award of sole legal custody to Ricardo could not stand.
- The court of appeals also directed the circuit court to reconsider placement consistent with Wis. Stat. § 767.41(5)(bm), which requires that safety and well-being of the child and the abuse victim be treated as the paramount concern when domestic abuse has occurred.

## Legal Principles

- When a court finds that a party has engaged in a pattern or serious incident of domestic abuse, Wis. Stat. § 767.41(2)(d)1.a. creates a rebuttable presumption that awarding sole or joint legal custody to that party is not in the child’s best interest.
- The presumption may be rebutted only if the abusive parent proves the conditions set out in the statute, including that the parent has received batterers’ treatment from a certified treatment program or a certified treatment provider.
- A circuit court may not replace the statute’s certification requirement with a judicial “functional equivalent” test based on other counseling services.
- Under Wis. Stat. § 767.41(5)(bm), when domestic abuse is found, the safety and well-being of the child and the victim of domestic abuse must be the paramount concern in determining legal custody and periods of physical placement.
- Statutory interpretation is a question of law reviewed independently on appeal.

## Conclusion

Valadez v. Valadez reversed a divorce judgment awarding an abusive parent sole legal custody and equal placement because the circuit court, after finding a pattern of domestic abuse, treated noncertified counseling as sufficient to rebut the statutory custody presumption and did not apply the statutory safety requirement as the controlling consideration in its placement analysis.


Valadez v. Valadez, 969 N.W.2d 770 (2021)