Legislation dealing with domestic abuse, custody not having intended effect.

Byline: GREGG HERMAN

An interesting article recently appeared in the Wisconsin Lawyer concerning domestic abuse and child custody: Meuer, Gibart & Roach, "Domestic Abuse: Little Impact on Child Custody and Placement", Wisconsin Lawyer, Vol. 91, No. 11 (December, 2018).

The article summarizes a study finding that a law designed to prioritize safety in domestic-abuse cases is having little effect. Rather, according to the article, research shows that domestic-abuse findings are rarely made, joint custody is the most common order and safety provisions or other references to domestic abuse are rarely present.

It is with trepidation that I write about this issue, since nothing should be construed as defending domestic abuse in the slightest. In fact, my practice has a zero tolerance rule and, on a few occasions, I have withdrawn from a case after a client has violated that rule. Simply put, there is no excuse for any behavior which constitutes abuse physical, emotional or verbal.

But even though the article shows that the legislation dealing with domestic-abuse cases has not achieved the desired and intended results, it does not discuss any possible reasons for this failure. After all, I'd presume everyone would agree with my "no tolerance" policy and that the legislation was well intended. So why the lack of results?

Let me suggest a couple of possible reasons. First, joint legal custody is, for the most part, merely symbolic. The authors of the Wisconsin Lawyer article misread the statute by assuming that "joint" custody means "joint decision-making," which would "force victims and children into more contact with abusive parents." But that is not the wording of the statute. Rather, the joint-custody provision empowers both parties to make major decisions independently. Contrary to some popular belief (including at least one appellate court decision), it does not require the parties to agree on the decision or even to consult each other.

Wisconsin really has "several" custody rather than "joint" custody. In addition, most of the major decisions delineated in the statute are rarely, if ever, issues. When is the last time a court had to decide when a child could marry, drive an automobile or enter the military? In real life, the only decision specified in the statute which arises with any frequency (and not much, at that) is the choice of schools. In the rare case when even that issue arises, it is usually easily resolved by determining who is...