The Valadez case: A bad start to the year

By Attorney Gregg Herman
February 3, 2022

Custody, Family Law, Divorce, Divorce attorney, Divorce Lawyer

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 issued its 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 the best interests of a child. See also: Rotter v. Rotter, 80 Wis. 2d 56, 257 N.W.2d 861 (1977). The appellate court could have easily found that the trial court’s order was consistent with the best interests of the children and properly exercised its equitable powers to protect the children.

This did not happen. Amazingly, the appellate court never even mentioned the best interest of the children. Hello, out there? There are children involved!

If a thoughtful, intelligent judge finds that, although a father had engaged in domestic violence, he should have sole custody of his children, maybe — just maybe — there is an issue with the mom which is even more severe. And the father did engage in counseling – just with a counselor with the wrong degree. The appellate court did not even consider the harm to the children inflicted by continuing litigation (unfortunately, this is a common failure of Wisconsin courts).

The end result will undoubtedly be that the father will go through the steps of therapy with a therapist with the relevant degree. Upon proof, the trial court should (and probably will) simply reinstate its previous order. The net effect is more litigation with no resultant benefit to the children.

Protecting children should be the primary mission of family law courts. A case which provides no benefit, but does potential harm, is a bad way to start the year.

Gregg Herman is a family law attorney at Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. 

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.