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February 3, 2022

DV LEAP's First Appeal in Wisconsin... A Win for the Survivor!

DV LEAP in partnership with our 2021 Pro Bono Team of the Year⁠—Venable, LLC partner and DV LEAP Board Member Jay C. Johnson, DV LEAP Advocacy Council Member Katherine Sochacki, local counsel Malinda J. Eskra of Reinhart Boerner Van Deuren, and Venable associate Nathan Keithlinewon our first appeal in Wisconsin on behalf of a survivor and her children.

In this case, our client, a survivor-mother, appealed a trial court order awarding sole legal and shared physical custody to the father despite finding that he had engaged in a pattern of domestic violence. The father had been criminally charged for domestic violence, had agreed to a four-year protection order against him and, prior to the order, could only visit with the parties’ children under supervision. However, the trial court found that the father had successfully completed a certified batterers treatment program and therefore had overcome the legal presumption that he could not be awarded custody due to his abuse. The father did not provide –nor did the trial court require--any direct evidence about the program or whether the father had actually completed it. Father testified that he received “counseling” as part of the plea deal in his criminal case but did not testify to the nature of the counseling or any treatment and the counselor did not testify.

The powerhouse pro bono team⁠ joined DV LEAP to argue on appeal that the extremely limited evidence the father provided about his counseling did not support the trial court’s finding, required under the Wisconsin statute, that he successfully completed treatment for batterers from a certified provider or program.

The Wisconsin Court of Appeals for District II agreed and reversed the trial court’s decision, instructing the trial court, on remand, to make our client and her children’s safety a paramount concern in determining placement. Unfortunately, far too often, the courts use loopholes in the law to award abusers custody. This important appellate victory sends a powerful message to the Wisconsin trial courts to close those loopholes and prioritize survivors’ safety when making custody determinations.

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