DCFS INFO MEMO 2004-03    March 26, 2004


Department of Health and Family Services
Division of Children and Family Services



Area Administrators/Assistant Area Administrators
Bureau Directors
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Kitty Kocol


Custody in Actions Affecting the Family When Domestic Violence is Present

The Governor recently signed into law 2003 Wisconsin Act 130 related to creating a rebuttable presumption against awarding a parent joint or sole legal custody if the court finds that the parent has engaged in a pattern or serious incident of abuse. The new law also requires Guardians ad Litem and mediators to have training related to domestic violence; requires a Guardian ad Litem to investigate whether a party in an action affecting the family engaged in domestic violence; and requires screening for domestic abuse at the initial mediation session. Finally, the law creates allowances for the court to exempt a party from attending a mediation session if there has been domestic abuse and that it creates an unsafe situation for one or both parties.

Under previous law, the court was to presume, in a separation or divorce, that joint legal custody of a child was in the child’s best interest. This law removes that presumption and replaces it with the presumption, which is rebuttable, that it is detrimental to the child to award joint or sole legal custody of the child to a parent who the court finds, by a preponderance of the evidence, engaged in interspousal battery or domestic abuse. This presumption may be rebutted only by a preponderance of the evidence that both of the following are true:

  • The party who committed the battery or abuse has successfully completed treatment for batterers; and

  • It is in the best interest of the child for the party to be awarded joint or sole legal custody.

If both parents were involved in battery or abuse, the rebuttable presumption against granting custody applies to the party which was the primary physical aggressor. This does not apply if the court finds that neither party was the primary physical aggressor.

This new law is designed to assure the safety of children. Please share this information with those inside and outside of your agency who require this information. This new law became effective on March 13, 2004 and applies to all cases in which actions or proceedings were commenced on or after that date. A copy of the new law is attached for your convenience.


Area Administrator


Mark S. Mitchell, Manager
Policy Coordination Section
P.O. Box 8916
Madison, WI 53708-8916
Phone: (608) 261-8316
FAX: (608) 264-6750
e-mail: mitchms@dhfs.state.wi.us

2003 WI Act 130 (exit DHFS) (PDF)

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