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The Valadez case: A bad start to the year

Gregg Herman is a family law attorney with 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. He welcomes comments at gherman@loebherman.com.

Gregg Herman is a family law attorney with 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. He welcomes comments at [email protected]

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.

15 comments

  1. You my dear need to get educated in personality disorders, exclusively sociopathic behaviors of a batterers on child development. Also, the difference between counseling and batterers treatment.

  2. lol manchild is upset because another manchild’s decision was found to be incompetent.

  3. Perhaps you should read the exhaustive article published by Propublica on this case. Honorable Michael J. Aprahamian appears to have been unreasonably vindictive towards the plaintiff in this case and in the end removed himself from it.
    You come across as a smug jerk who writes much garbage, based on very little knowledge.

  4. You are obviously a part of the problem and have no business being an officer of the court. I am a victim of Domestic Violence, like many other women in my county as well, where our children are physically and/or sexually abused by their fathers, we are assaulted or mentally abused by gaslighting tactics by these narcissistic, misogynists and then when we try to break away for our children’s safety and ours (for their benefit), we are further victimized by the court over and over. And the more we bring to court, the more we are punished for even trying. The truth is for every plea of abuse that may be fake for some foul purpose, there are hundreds more that are REAL. To dismiss this as there being something wrong with the WOMAN for her husband to engage in Domestic Violence against her is DISGUSTING. Your true colors are showing, and showing why this, along with the case in NY where the Court of Appeals sided with the woman whose ex-husband suddenly beat her to a pulp in front of their children during a custody visit and had her children taken away from her by CPS citing SHE exposed them to Domestic Violence, is evidence of the atrocities that privileged, well off men are doing favors for each other behind the bench while intentionally putting children at risk for further abuse, neglect and, as you cited, much litigation, as we moms FIGHT TO KEEP OUR CHILDREN SAFE and have peace, justice, and a right to LIFE itself. The only judges I know that would side with the ex-husband in cases like this are the CROOKED ONES that are paid off, as are all in my county. A judge with a history of alcohol abuse, as well, should not preside over any case, much less one in which the abuser is an alcoholic. That’s an ethics issue alone aside from competency. Yet that was my judge, the one who has a reputation for doing favors. Who said out loud he wished he could hear the hearsay bogus testimony from my ex’s mouth of my 14 year old who was not present and refused to hear the testimony of my 16 year old who was in fact present and wanting to testify on behalf of the truth, and for me. Again, you, and those with your twisted ideas, are the problem and reason why our children are suffering. You should resign from your career, immediately.

  5. This article is gross. There is a reason why domestic abuse victims are nit believed. Because jerks like you defend other jerks like the judge who defend jerks like the husband. Who cares that he was an alcoholic and created a hostile home? She was not listening to the men so she should be punished. Shame on you!

  6. Jennifer Moston

    As a survivor of domestic violence who is also further abused by Waukesha County Family Court I’m disgusted by this article. WI Law Journal should be ashamed for even publishing it. How dare you blame this woman for protecting her children? Do you even know the definition of a narcissist? A man who can threaten to kill a woman and your children yet show up in court poised and calm. Do you really think attending a few meetings and receiving a piece of “paper” means that they are “cured”? Do you really promote children being raised by a man who will teach his sons to abuse women and teach his daughters that is what they deserve? Thank God for Waukesha county criminal court who put my abuser in prison when family court and people like you did nothing to save my children. You should be ashamed of yourself.

  7. This lawyer is defending domestic abuse against women and children and is asserting a lot of “maybes” into his commentary. Gregg Herman comments “ maybe — just maybe — there is an issue with the mom which is even more severe”. Please tell us for the record Gregg, what is more severe than a woman getting abused by a man who claims to love her in front of children?

    Is it her continuing litigation to get her children to safety and to have her rights as a mother restored? While Greg wants to blame this on the mother, it is the system that Greg works to enable domestic abuse that actually draws out the litigation. Not the Mother! Maybe— just maybe— it is the lawyers and courts that ARE the problem!! Stop victim blaming Gregg, and stop operating on “maybes”, it’s a bad look for your profession.

  8. Gregg obviously supports domestic abuse against women and children. This is apparent by breaking down his argument based on injecting “maybes” into his assessment of the case. Further, it is lawyers like this that has created a money making racket off of domestic abuse and child abuse. Gregg, if you’re not against domestic abuse and actually try to justify it by inserting “what-if’s”, then you are for it. There is no in between.

    As mentioned, courts are not at liberty “ to disregard the plain, clear words of the statute.”. Gregg then defends his argument by inserting “maybes”. He says, “ maybe — just maybe — there is an issue with the mom which is even more severe.” Well Gregg if that was the case, then why wasn’t that brought up on the record and included in the appeal? Could it be that she didn’t do anything worse!

    I would like Gregg to tell the world what he thinks a mother could do that is worse than the father committing domestic abuse against the mother in front of children, and that was so bad that it didn’t make it onto the record. Women and children are continuing to be murdered by these type of men weekly. Tell us Gregg, why would you ignore the red flags of domestic abuse that is shown to precede these killings of mothers and children. Gregg, how do you propose you will protect the children after they are dead?

    Gregg hints to the fact that he thinks a mother continuing to fight for her children’s safety and her PARENTAL RIGHTS through litigation is worse than the original domestic abuse that puts the children at risk. What he fails to mention is that the system he works in is the one who continues litigation to line their pocketbooks. To all the lawyers out there, please do not be part of this money making racket. Sure you might enjoy all the money you’re making, but while you’re tucking your children safely in at night, think of the children terrified of their father they have to live with and mothers who are suffering immeasurably after having their children ripped from them.

    Gregg is victim blaming here and gaslighting his own profession with this commentary. To the lawyers reading this… Don’t ever forget that you’re part of the problem if you are not applying the laws properly that are meant to protect women and children. I do not believe any lawyer reading this wants to be part of a case where the children ultimately die, so it’s time to start taking this seriously. It is not the fault of mothers for continuing to fight for her rights and her children’s safety, again it is not the mothers fault. She is put in this position because of the bad decisions made by those not applying the law properly in the first place. I beg Gregg’s colleagues reading this to take domestic abuse seriously from here on out! Stop dragging the abuse out to make money!

    Gregg, it is your profession that drags out the litigation and then blames the mother. Stop victim blaming for what you’re creating… It’s a bad representation to your profession!

  9. The WI Law Journal should be held accountable and ashamed for publishing this poorly thought through piece by another pompous lawyer, uneducated on domestic abuse and how abusers use the courts to continue their incessant abuse.

    Judge Aprahamian vindictively misused his power and senselessly removed a mother from her children’s lives, while allowing the known abuser to avoid the requirements of the law.

    Judges and attorneys should be required to complete 200 hours of training and 40 hours annually on domestic violence, sociopathic behaviors, narcissism, and other mental health disorders.

    The people deserve much better. Children especially.

  10. First, anyone who thinks that I am not educated or experienced on DV issues does not know me. I was a prosecutor for over seven years and prosecuted many cases involved DV. In my subsequent family law practice, I have a zero tolerance policy for any form of violence and have on a few occasions over the years fired a client for violating it. I’ve also attended a number of courses on DV and especially the effect on children.

    Second, perhaps my point in the article was not clear. My columns are intended to provoke thought, sometimes on issues without easy answers. This case raises such an issue, to wit: Assuming that a parent has committed DV acts (as occurred here), is it possible that he could still be a candidate for custody (either joint or sole) and periods of unsupervised placement with children?

    To put it differently, while DV is a critically important factor in a custody/placement case, should it be the only factor or could it be outweighed by other factors? Those other factors could include whether perpetrator admits the acts, is remorseful and engages in an appropriate course of counseling to address them and what are the other available options for legal custody and physical placement?

    And, in considering this issue, it should be kept in mind that the primary factor in any custody/placement decision is not the best interest of the victim or punishing the perpetrator, but the best interests of the children.

    In my mind these are difficult questions to consider without easy answers.

  11. Gregg,

    1980 called and wants your understanding of DV back. You are so overwhelmingly uneducated on the current studies of DV and it’s effect on children and “their best interest”. Your views on it are clearly outdated and you might not want to comment on it anymore because you’re just digging yourself deeper.

    The best interest of the child and that of the victim are inseparable. You can’t have one without the other. As far as your comment about punishing the perpetrator… Believe the experts on the subject who will tell you that you’re not punishing him! For he never really wanted the kids to begin with. The kids are a tool for him to control the victim and the kids are being used as a tool for lawyers to make money. It’s no secret anymore that lawyers have effectively found a way to use children as pawns in a money making scheme. They have also made a cottage industry out of domestic abuse and child abuse. Now that is just a little of what the current studies on DV show.

  12. You can’t be serious

    Gregg the thoughts you actually provoked were that you don’t take abuse seriously and that you empathize with abusers not the victims and children. It’s obvious by your article, your comment above, and also the content posted on other platforms. Didn’t you fight AGAINST domestics abuse training for GALs not that long ago? That’s a bizarre way to show you’re against abuse.

    Perhaps you’d like to write a follow up article on the appellate clarification?

    https://drive.google.com/file/d/1yE33X5RJEaQ5YDWDYjLv9XGx0-RW8G3L/view?usp=drivesdk

  13. Gregg, the thoughts you actually provoked were that you support abuse and empathize with abuser over their victims and children. Didn’t you fight AGAINST domestic violence training for GALs not that long ago? Even after multiple studies have shown serious problems? That all seems very pro-domestic abuse.

    Perhaps you’d like to update yourself with the appeals court clarification…..

    https://drive.google.com/file/d/1yE33X5RJEaQ5YDWDYjLv9XGx0-RW8G3L/view?usp=drivesdk

  14. Gregg. Read this article. It’s what a lawyer sounds like when they’re against abuse. In contrast, you sound very much like you condone abuse. There’s about 30-40 years of science you need to catch up on. It says abuse is bad and that it hurts children.

    https://www.wisbar.org/NewsPublications/Pages/General-Article.aspx?ArticleID=28992

  15. It should be apparent what is wrong with the mother… IF there was any due process. If it is NOT apparent what was wrong with the mother beyond that of seeking safety from a batterer… then it’s time to look at WTH is really going on here.

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