The Valadez case: A bad start to the year.

Byline: Associated Press

The first family-law case to be recommended for publication by the Court of Appeals in almost two years makes me wish that it would have been longer. Well, the good news is that when I write my end of the year column for 2022 highlighting bad decisions, I will have a good start.

On December 29, the District 2 Court of Appeals issuedits opinion in Valadez v. Valadez, No. 2020AP1006, which reversed an order by the Honorable Michael J. Aprahamian of Waukesha County. Julie Valadez had appealed the circuit court's order awarding sole legal custody and shared physical placement of their children to Ricardo Valadez. The circuit court, although finding that Ricardo had engaged in a pattern of domestic abuse, found that he had rebutted the statutory presumption against legal custody and shared placement because he had successfully completed domestic-abuse treatment from a licensed professional counselor, thereby complying with Wis. Stat. 767.41(2)(d)1.a.. Though the counselor was not a certified treatment provider, the trial court found that the treatment was equivalent and satisfactory.

The court of appeals reversed, finding that when courts interpret a statute, they are not at liberty "to disregard the plain, clear words of the statute." The appellate court held "that the words enacted by the legislature mean that one may only overcome the presumption against sole or joint custody set forth in Wis. Stat. 767.41(2)(d)1. by successfully completing treatment designed for batterers and provided by a certified program or provider."

It's difficult to know where to start with what's wrong with this decision. But let's do so with the law (never a bad place to start). The court of appeals applied the strict language of the statute rather than using its equitable powers to protect the children. In In re Custody of H.S.H-K, 193 Wis.2d 649, 533 N.W.2d 419 (1995) the Wisconsin Supreme Court held that courts have jurisdiction in equity to act in...