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  • January 14, 2022

    Court Erred by Ruling That Non-Certified Treatment Overcame Custody Presumption

    A presumption against granting custody to an abusive parent can only be overcome with proof that the parent has completed treatment for batterers from a certified program or from a certified provider, the Wisconsin Court of Appeals has ruled.

    Jeff M. Brown

    Drunk Driving

    Jan. 14, 2022 – A presumption against granting custody to an abusive parent can only be overcome with proof that the parent has completed treatment for batterers from a certified program or from a certified provider, the Wisconsin Court of Appeals has ruled.

    In Valadez v. Valadez, 2020AP1006 (Dec. 29, 2021), the Court of Appeals District II held that a circuit court erred in concluding that an abusive parent had overcome the presumption against granting him custody by completing an equivalent program from a certified provider.

    Abuse Broke Up Marriage​​

    Julie and Ricardo Valadez were married in 2004. They have four minor children.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    In 2017, authorities charged Ricardo with misdemeanor domestic abuse against Julie. Julie filed for divorce several months later.

    Ricardo stipulated to a four-year injunction that prohibited him from entering the family’s house. After a Waukesha County Circuit Court entered the injunction, it issued an order granting Julie sole legal custody and primary placement of the children.

    After the issuance of the court’s order, Ricardo violated the injunction by entering the family’s house. Julie moved out of the house and entered “Safe at Home,” a program for victims of domestic abuse offered by the Wisconsin Department of Justice.

    Treatment Leads to Lesser Charge

    In 2019, the state agreed to amend the domestic abuse charge against Ricardo to disorderly conduct, because he’d paid restitution and completed treatment for both drug and alcohol abuse and domestic abuse.

    During Ricardo’s sentencing hearing, Julie objected on the grounds that the treatment Ricardo had received from a licensed professional counselor did not specifically address domestic abuse.

    But the court approved the amended charge and accepted a no contest plea from Ricardo.

    Sole Custody for Father

    During the divorce trial, Julie argued that the court shouldn’t award custody to Ricardo because he hadn’t proved that he had seen a certified domestic abuse treatment provider, and hadn’t proved that he’d completed a certified domestic abuse program.

    The circuit court found that Ricardo had engaged in a pattern of domestic abuse and that the rebuttable presumption against granting him custody established in Wis. Stat. section 767.41(2)(d)1 applied.

    But the court found that Ricardo had overcome the presumption despite not completing a certified domestic abuse program because the statute contemplated “equivalent treatment from a certified treatment provider.”

    The court awarded Ricardo sole legal custody of the children, with Julie sharing their physical placement on a weekly basis.

    Lack of Information About Provider

    In an opinion for a three-judge panel, Judge Lisa Neubauer wrote that the circuit court committed clear error in concluding that Ricardo had overcome the presumption against granting him custody.

    Neubauer began by interpreting the plain meaning of the section 767.41(2)(d)(1).

    That section allows the presumption against granting custody to a party found to have “engaged in a pattern or serious incident of interspousal battery” only if, among other things, that party has “completed treatment for batterers provided through a certified treatment program or by a certified provider and is not abusing alcohol or any other drug.”

    At the divorce trial, Ricardo testified that he underwent counseling with Tyler Loomis for domestic abuse, anger, and drinking as part of his plea deal.

    Loomis did not testify at the trial, and Ricardo gave no additional information about Loomis or the treatment that Loomis had provided him.

    Ricardo’s testimony was not enough to show that he’d received certified treatment for batterers through a certified treatment program or from a certified treatment provider as required by section 767. 41(2(d)(1)(a), the appellate panel concluded.

    Reliance on Plea Deal

    In concluding that the treatment was sufficient to rebut the anti-custody presumption, the circuit court relied on the fact that the Waukesha County District Attorney had accepted Ricardo’s treatment as part of the plea deal.

    That reliance was misplaced, Neubauer explained.

    “Whether Loomis’ counseling and credentials met that standard is a statutory interpretation question that cannot be answered by looking to a plea deal in a separate criminal case involving a different set of statutes and different considerations, when nothing suggest it met the statutory requirements at issue here.”

    ‘Read Words Into the Statute’

    The circuit court also concluded that Ricardo had rebutted the anti-custody presumption because his counselor was a licensed professional counselor.

    But the wording of section 767.41(2)(d) implies something more, Neubauer explained – that providers be certified to treat batterers.

    “In rendering its decision here, the circuit court read words into the statute that are not there, indicating that the statute ‘expressly contemplates equivalent treatment’ and ignored words that are there – ‘treatment for batterers provided through a certified treatment program or by a certified treatment provider.’”

    Such an interpretation, Neubauer explained, violated a canon of statutory interpretation that requires courts to give meaning to each word in a statute and render no words surplusage.

    “We see nothing in the statute indicating that it contemplates treatment that is not aimed at batterers and provided by a certified program or provider,” Neubauer wrote.

    “We must assume that the legislature chose to specify certified programs and providers by design and for a reason. We cannot ignore these words or assume that the legislature included them without assigning any meaning to them.”

    Placement Decision Was Erroneous

    The appellate panel also held that the circuit court erroneously exercised its discretion when it ordered that Ricardo and Julie share placement of the children.

    The court neither considered nor mentioned section 767.41(5)(bm), which specifies that if a court finds that a parent has engaged in spousal abuse, the safety of the children and the safety of the abused parent “shall be the paramount concerns in determining legal custody and periods of physical placement.”

    There was no way to determine the role the court’s erroneous custody decision played in its placemen​t decision, Neubauer wrote. So the appellate panel remanded the case to the circuit court and directed the court to reconsider the placement decision.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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