He Beat Her Repeatedly. Family Court Tried to Give Him Joint Custody of Their Children.
Wisconsin is considered a leader in the movement to treat fathers as equal caregivers when parents separate. Shared parenting is usually better for children — but the model fails for many women forced to co-parent with their abusers.
September 30, 2021
By Megan O'Matz, ProPublica
Jennifer Moston was about seven months pregnant when, she said, her husband grabbed her by the arms, picked her up and threw her against the staircase. Each time she tried to get up, he pushed her down again.
Such abusive episodes continued for several years, she said, until 2016, when he allegedly tried to strangle her. She went to the police and filed for divorce.
It seemed obvious to Jennifer that her husband, Ryan, shouldn't get custody of their 3-year-old son, as Ryan now faced felony charges of domestic violence. How could someone with a violent history be trusted with a child? How could she stay out of harm's way if she was interacting with him for drop-offs?
Jennifer assumed that the family court in her Wisconsin county would make her safety and that of her son a priority, and that the system would help her cut off contact with Ryan.
But it didn't.
Court professionals handling her case disregarded or downplayed her allegations despite the pending criminal charges, plus 20 pages of notes she took describing more than 50 incidents in which she said Ryan had physically attacked or threatened her. On top of that, in a separate proceeding, he had admitted to abusing his first wife.
Jennifer Moston eventually got the protections she sought. But it took 2 1/2 years, and it wasn’t in family court.
Following Ryan's 2018 conviction for assaulting her, she pleaded with a criminal judge to take a hard line. "Please," she said, "do not let this man around my son again ... keep me safe from him."
The judge listened. He ordered Ryan imprisoned for 8 1/2 years and barred from seeing his son for another 10.
Ryan Moston, who has maintained his innocence and is appealing his conviction, did not respond to a written request for an interview for this story.
Wisconsin is considered a leader in the movement to treat fathers as equal caregivers, and its percentage of cases with shared custody is among the highest in the nation. But that model, while based on altruistic goals, still has not adjusted to the realities of domestic violence.
To examine the impact, ProPublica interviewed a dozen survivors of domestic abuse in Wisconsin, reviewed court documents and police files, and talked to experts in the field. Spouses who've been abused say the courts seem unwilling to listen to their fears and then unable to keep them safe. Jennifer Moston, who has become a voice for survivors of domestic violence, was startled to find that the difficult decision to leave her abuser left her facing a new battle in court: a harrowing fight for credibility and protection.
Advocates for women in Wisconsin describe the family court system as unprepared for the complexities presented by domestic violence, often giving little consideration to the risk of harm to women and children and compounding the trauma they face. And experts from around the country say the court process is still influenced by outdated ideas about abuse and abusers — held not just by judges but by lawyers and social workers who assist victims.
"The culture prefers to cling to its belief that most men are fine, and a lot of women are liars or vengeful or crazy," said Joan Meier, the lead author of a widely cited 2019 national study of custody decisions involving alleged child abuse or domestic violence.
That's exactly what a group of mothers in La Crosse complained about in 2020 when they began a campaign to draw attention to what they saw as the failure of local courts to take domestic violence accusations seriously. But they remain frustrated by a lack of action in their county.
Absent convincing proof of a parent hitting a child, some family courts seem to view domestic violence as unrelated to parenting, experts say. Judges who don't understand the complex dynamics of domestic violence sometimes conclude that once a couple splits up, the toxicity will end and the abusive spouse will be a decent parent, said Jenna Gormal, director of public policy at End Domestic Abuse Wisconsin, a statewide anti-violence coalition that trains judges and other legal professionals.
Yet even when the child is not at risk, the abused spouse can remain a potential target for more violence.
In Calumet County in January 2018, the local prosecutor asked that Robert K. Schmidt not be allowed contact with his three children while free on bail after allegedly holding a gun to his wife's head on New Year's Eve, tying her up with cord and duct tape and raping her. But the criminal court judge disagreed.
Schmidt's wife, Sara, who had filed for divorce after the New Year's Eve attack, was dropping off her children at her in-laws for a visit with Robert five days after the judge's decision when Robert emerged from the house with a gun. He fatally shot her, then used the same gun to kill himself.
The law and the reality
Like most other states, Wisconsin uses what it determines is in "the best interest of the child" in deciding custody cases. Domestic violence is one of more than a dozen factors the courts must weigh, including such things as the child's wishes, whether the parents can cooperate and whether a parent has a drug or alcohol problem.
The state presumes that parents will share the responsibility of legal custody — making major decisions for a child — unless there is a "pattern or serious incident" of domestic violence. Similarly, for deciding the proportion of time a child spends with each parent, domestic violence should upend the goal of giving both parents "regularly occurring, meaningful periods" of time with their children. In such cases, state law says, the safety of the abuse survivor and the children must be "paramount."
But the current law, passed in 2003, leaves a lot of room for interpretation. It does not specify that an abusive spouse cannot have any interaction with their child. Courts can provide for the safety of survivors of abuse by requiring children to be exchanged "in a protected setting" or insisting that visits be supervised by a relative or a social worker.
Dolores Bomrad, who heard custody cases in Washington County, said it can be "hard to reach the level of proof" needed to show that a parent is unsafe.
"It's very, very difficult in Wisconsin law for there to be no contact between a parent and a child," said Bomrad, who was a court commissioner, someone appointed by a judge to help handle family law matters. "The general rule is it's best for children to have contact with both parents, but that's as long as it's safe. And as long as it's in the best interest of the child and isn't placing the child at risk."
A 2018 study by End Domestic Abuse Wisconsin concluded that decisions in family court are not sufficiently accounting for domestic violence.
Researchers in 20 Wisconsin counties reviewed every divorce case between 2010 and 2015 in which one parent had a prior conviction for felony domestic abuse or misdemeanor battery against the other parent. There were a total of 361.
They found that half the cases resulted in joint legal custody, requiring victims to cooperate in decision-making with their abusers, despite the law’s protections. The study's authors were surprised that so many survivors ended up working jointly with their abusers to make legal decisions for their children. In more than 80% of all cases reviewed, the parties reached negotiated settlements. Researchers concluded that family court lawyers "adhere to the notion that divorcing spouses must learn to cooperate."
When it came to apportioning time with children, final custody orders placed them solely or primarily with the abuse survivor in about two-thirds of the cases, but the courts typically did not include any safety provisions for visits, the study found.
The reviewers also found that only 27% of the cases made any reference at all to domestic violence, despite the prior criminal convictions.
"It suggests that Wisconsin family law case processing does not systematically account for abuse," the findings, published by the State Bar of Wisconsin, concluded.
Wisconsin for Children and Families, a support group made up largely of fathers who've gone through family court, gives little weight to the End Domestic Abuse study. Tony Bickel, the group's president, said the results shouldn't be seen as a failure of the court system, because the majority of custody decisions are made through voluntary agreements between two parents.
Bickel said that people with domestic violence convictions often can co-parent effectively and that many parents agree to do just that. He said that the courts must distinguish between someone who makes a "one-time mistake" and a habitual abuser.
"We feel shared parenting is best in most cases for our kids, and we have to find a way to safely do that," Bickel said, pointing to a 2018 Wake Forest University review of 60 studies showing that children in joint custody arrangements fare extremely well. If need be, safety provisions could include exchanging kids at police stations or public places with many cameras, he said.
To an abused spouse, such arrangements can seem incomprehensible. Many can't afford a lawyer or the court fees to fight drawn-out legal battles, so they reluctantly settle.
"Can you imagine if you are a survivor who was beaten or raped or hurt by this person and now you have to turn over your child? It's a reasonable reaction, I think, to be afraid and to be cautious, and many women are put in that position," said Carmen Pitre, president and CEO of the Sojourner Family Peace Center, in Milwaukee. The center is the largest nonprofit service provider for survivors of domestic abuse in Wisconsin.
Jennifer Moston, who suffered from regular abuse, found the court system's safeguards flimsy. At least once, she told a judge, she had to hand over her son in the early morning at a small-town police station. At that hour, it was unstaffed.
'He wishes I were dead'
Jennifer was not the first woman to allege abuse by Ryan.
His first wife, Tracy, won a restraining order against him in 2008 after she described the terror she felt when he lashed out. She detailed how Ryan had threatened her, slapped her and spit on her during their brief marriage. He did not dispute her allegations.
"On one occasion after an argument Ryan grabbed a rock we have in the bathroom and said I would like to smash you in the head with this," Tracy wrote. "He has also said on several occasions that he wishes I were dead."
In their 2008 divorce, a Jefferson County court commissioner had expressed concerns about Ryan's "ability to control his rage and impulses."
He was ordered into a lengthy batterers' treatment program because of the incidents with Tracy. The program consisted of six individual therapy sessions and 28 group sessions, court records state.
While Ryan was in treatment, Jefferson County allowed him frequent visits with his eldest child, including overnights to be supervised by Ryan’s dad.
Then, after he completed the batterers' program, under the terms of his divorce settlement with Tracy, he was allowed to spend a few hours unsupervised with the boy one or two weeknights and overnight two weekends a month.
Those visits filled Tracy with fear. Fear that her son might be harmed by a man she knew to be violent. Fear that her son might witness violence in the new relationships Ryan was forming.
"You bring this beautiful child into the world," said Tracy, who asked that her last name not be published to protect her family's privacy. "The last thing you want to do is put them in an environment where they're getting hurt."
Ryan, at the time a school teacher, married Jennifer, the managing director of a financial services firm, in 2013. She had three children from a prior marriage and soon bore another son with Ryan.
In the spring of 2014, while dropping off her stepson at Tracy's, Jennifer confided to her: "I'm being abused by Ryan. I'm scared. I don't know what to do."
Tracy said she understood Jennifer's concerns, and didn't hesitate when it came to helping her. At Tracy's suggestion, Jennifer secretly began keeping a journal of the abuse she endured. She emailed detailed, dated entries to herself, in case she needed evidence later for a restraining order or, worse, if she was found dead. She noted when Ryan made his hand into the shape of a gun and pretended to shoot her in the head. When he called her vulgar names and threatened her. And how he broke her wrist in a 2015 incident.
One night in January 2016, police were summoned to their home in Waukesha County. Jennifer alleges that Ryan tried to strangle her in bed, she screamed and her brother, who was visiting, rushed to her aid. Ryan and the brother fought. When police questioned Jennifer and Ryan together, she denied being attacked.
Ryan's older son, who had been in his father's home that night, told Tracy about the police visit, and Tracy became alarmed. She obtained the police report, then called Jennifer. The call prompted Jennifer to go to the Oconomowoc police station to admit she had lied about not having been attacked by Ryan, and to ask for help. Tracy met her at the police station for emotional support.
Jennifer petitioned the Waukesha County court for a restraining order against her husband and attached what a judge later described as a "diary of domestic violence." The court granted the order of protection.
Five days later, Tracy filed a motion asking the family court in neighboring Jefferson County to restrict Ryan's parenting time with the son they shared. She included a copy of Jennifer's restraining order and excerpts from a 2014 deposition given by an earlier girlfriend of Ryan's who testified he had threatened to slit her throat with a buck knife.
Jefferson County held a family court hearing in March 2016 and issued an order barring Ryan from being alone with his older son, citing the "number of incidents of battery and domestic abuse, the severity of the incidents, and the dimensions and pattern of domestic abuse alleged." Eventually he was allowed supervised visits for two hours once a week.
In Waukesha County, in Jennifer's case, the district attorney charged Ryan with one count of strangulation in April 2016 for the alleged attack on Jennifer. Jennifer filed for divorce the following month.
Initially a court commissioner allowed Ryan to spend alternate weekends and Tuesdays overnight with the boy. As with Ryan's oldest son, these would be supervised by Ryan's dad.
Only after prosecutors in Waukesha County filed nine additional criminal counts against Ryan in August 2016, including stalking, false imprisonment and numerous incidents of battery, did the Waukesha family court tighten its conditions. Ryan Moston could spend one evening a week visiting with his son at a local library for two hours, under the supervision of a social worker.
When women are not believed
In Wisconsin family court, judges rely heavily on the input of attorneys appointed to advocate for the best interest of the child.
By law, these "guardians ad litem" have a vital task: to investigate whether there's evidence of domestic violence and report back to the judge.
A 2021 University of Wisconsin report on family court cases involving domestic abuse described the challenges guardians ad litem face. They do not have enough resources for evidence collection or expert help, and they lack training about domestic abuse.
These court-appointed advocates, concluded the study produced by the university's Robert M. La Follette School of Public Affairs, "are often asked to do a job that exceeds the original boundaries of their role, one in which they do not currently have the expertise and resources to achieve. This can make addressing a large societal problem, like domestic abuse, very difficult or nearly impossible in some situations."
The researchers surveyed guardians and published some of their anonymous comments. Said one: "Some GALs meet with scared kids for 15 minutes at their office and then think they know everything about the children, and then the court takes the GAL's recommendation as gospel. It's frightening, really."
That respondent said the inconsistent approach of guardians turns the process into a "free-for-all": "There's no clear definitions of what is in the best interests of the children, so it leaves it up to each individual GAL to define for themselves."
As a result of the End Domestic Abuse study, the state Supreme Court agreed as of Jan. 1 of this year to require guardians ad litem to obtain at least three credit hours of training in family violence. Compliance, however, is not tracked by the state.
And throughout the system, even in the aftermath of the #MeToo movement, there remains distrust of women's stories of abuse, according to women’s advocates.
In Dane County, a family court judge denied a restraining order requested by a woman who claimed her partner tried to throw her off a balcony and pointed a gun at her in front of a child. The judge told her to "take a deep breath and try to co-parent more effectively" because "injunctions make family cases worse," according to a 2019 report by Domestic Abuse Intervention Services, a nonprofit in the county, summarizing observations from its Court Watch program. Staff in the program monitor proceedings to gauge how well courts respond to requests for restraining orders.
According to the report, the judge reasoned that the pain documented in the woman's medical records was "not severe" and that the petition detailed "only one incident."
Kimberly Theobald has represented parents as an attorney and has been an advocate for children as a guardian ad litem. She represented Ryan Moston in family court when Tracy sought to limit his contact with their son. Theobald told ProPublica she believes that, at times, men and women lie in custody cases. She noted there can be a financial incentive to lie: The parent awarded more time may receive more in child support.
"Be very clear on this: that someone who has truly been abused is not worrying about the money from that angle. They're worrying about their safety, and they are worrying about their child's safety," Theobald said in an interview. "What I am saying is there are people who make the allegation where there's not even smoke, much less fire, in order to gain an upper hand in the custody and placement wars."
She said of Jennifer Moston's claim to police of being strangled: "It was an act."
Joan Meier, a professor of law at George Washington University, set out to gather data on the outcomes of family court cases in which parents accuse each other of abuse or alienation from their kids. Her 2019 report studied a 10-year period and found 222 published court opinions across the nation where fathers claimed mothers were lying about abuse to keep them away from their children. In those instances, the researchers found the tactic was highly successful in deflecting the abuse allegations. The courts were almost twice as likely to disbelieve the mothers' claims of abuse in those scenarios.
What's more, in half of the cases the moms lost custody.
The study urged greater awareness of the bias and dangers in outright rejecting abuse claims and called for "new and mandated trainings to return the courts to their most important mission: protecting at-risk children."
In Waukesha County, Jennifer felt first rejection during her court case, and then outrage.
By April 2017, Waukesha County family court social worker Deanna Stevlingson and Lori Fabian, the guardian ad litem for Jennifer's son, had listened to Jennifer's litany of abuse and seen her documentation. They were aware of the serious charges Ryan was facing.
Yet their report to the family court judge recommended that the Mostons share legal decision-making for their child and that Ryan be allowed to spend two weekends a month and every Wednesday overnight unsupervised with his son. (Attempts to reach Stevlingson and Fabian for comment for this story were unsuccessful.)
"We are jaws on the floor," Jennifer's lawyer, Scott Schmidlkofer, recalled of hearing the report's recommendation. He found it inexplicable. But he said anybody, even an accused abuser, can be charming in an hourlong interview.
The report lists Stevlingson's numerous record checks and interviews with people in Ryan and Jennifer's lives. But that list did not include the district attorney prosecuting Ryan, the detective in the criminal case, Ryan's first wife nor the girlfriend who in 2012 filed for a restraining order against Ryan in Dane County but settled for a mutual no-contact order.
The report mentions that Stevlingson reviewed records from three police departments and the Dane County Sheriff’s Office. But it makes no specific mention of the criminal case against Ryan in Waukesha County.
"This recommendation is based on the information available to me at this time," Stevlingson wrote. "I believe it is in the child's best interest."
Stevlingson wrote that she attempted to obtain unspecified records from the Waukesha County Sheriff's Department but was told "they could not provide these records to me at this time." The sheriff's office is part of the same county — and in the same building — as Family Court Services, her employer.
In Jennifer's view, the system had once again favored Ryan.
Under attack in family court
Jennifer Moston did have one important ally, however: her husband's first wife.
The two women supported each other in parallel custody battles against Ryan in their neighboring Wisconsin counties.
Tracy's custody case in Jefferson County, reopened because of the criminal charges, went to trial first. Jennifer was the first witness called by Tracy's lawyer so she could recount what Ryan had done to her.
Ryan's attorney was Theobald, the part-time guardian ad litem for children but in this case serving in her other capacity as a legal advocate for a parent. In closing arguments in June 2017, Theobald did everything in her power to discredit Jennifer, casting her as a desperate, conniving woman.
The diary Jennifer had kept? Fabricated, the lawyer claimed.
The pictures she took of her injuries? Too grainy to discern the marks or even say for sure the photos were of Jennifer.
Her support of Ryan's first wife? Deceitful collusion.
Finally, Jennifer was dumbfounded to hear Theobald tell the judge that she had attempted to bait her estranged husband by wearing a "tight blouse" on the stand, "complete with her nipples being incredibly pronounced."
"It literally made me want to throw up," Jennifer recalled. "The thought of someone trying to accuse me of trying to come on to the man who tried to kill me."
Theobald, in an interview, stood by her remarks in court, saying, "It was inappropriate attire unless she was going out clubbing somewhere."
Theobald argued in court that Ryan Moston was a caring father and should continue to have contact with Tracy's son. Ryan himself testified, "I love my son, and we have a great relationship. I never harmed him. I never would bring harm to him ever."
Ultimately, the judge in Jefferson County sided with Tracy.
Calling it the "most significant case of domestic violence that I have ever experienced," Judge Jennifer Weston expressed doubt that Ryan would change. He'd already gone through two certified batterer's programs by then: in 2009 and voluntarily during the pending of his criminal charges.
"We're not proactive. Is there a point at which we have to become proactive because there's so much history that supports that the next 10 years are going to be the same as the past 10 years?" Weston asked.
Two months later, Weston issued a 28-page decision stripping Ryan, "a chronic batterer," of all contact with his eldest son. "This is a full denial, to include no telephone contact or contact by any other means," the judge wrote.
"The trauma to Tracy, and now to Jennifer, is recurring every day they are required to release their children" to Ryan, Weston wrote, "even into the hands of a supervisor."
The boy "is in danger — physically, mentally and emotionally — every time he is with his father," the judge concluded, finding that Ryan "is able to snap at any second having failed to learn how to cope."
It had taken Tracy a decade of court hearings and legal negotiations to get what she thought was best for her son.
Jennifer, however, remained skeptical of what would happen in her case in the adjacent county. The April 2017 report from the guardian ad litem and the social worker, as well as her conversations with them, made her concerned about how a judge would rule.
On the advice of her lawyer, Jennifer and Ryan did not go to trial over their divorce but arrived at a settlement in October 2017.
Ryan agreed to give Jennifer sole legal custody of their son, then nearly 4, according to the divorce decree. He was allowed phone calls three times a week with the boy and hourlong weekly visits to be supervised at Parents Place, a social service agency.
Schmidlkofer considered it the best deal he could get for Jennifer, given the position of the guardian ad litem and the social worker and the likely influence this would have on the court. Had Jennifer gone to trial, he said, her total legal fees could have easily reached $50,000.
In custody cases, he said, "99.9% of people get joint legal custody. She got sole."
Still, it was not enough to ease Jennifer's fears.
Fixing the system
Family court drama typically is hidden from public view. But it garnered attention in Wisconsin recently when a group of nearly 30 women in La Crosse, a small city on the Mississippi River, joined forces to speak out about the system and call for change.
On their website, and in public forums, the women described their frustration with court-appointed evaluators, including guardians ad litem, who recommend parents cooperate in child rearing even when there are accusations of domestic violence. The women had hoped that county officials would listen and begin to make reforms. But that hasn’t happened.
"When we look at the family court system, there are no checks and balances," said Elizabeth Cline, one of the La Crosse moms, whose own court battle has stretched over six years.
Wisconsin Judge Ramona Gonzalez, a past president of the National Council of Juvenile and Family Court Judges, is among those who believe family courts should respond more effectively. The emphasis by courts on shared parenting does not work in cases involving "coercive, controlling people," said Gonzalez, who is based in La Crosse.
For instance, the law in Wisconsin talks about a pattern or serious incident of interspousal battery. But there are a whole host of behaviors that many consider abusive that do not involve violence, including a spouse restricting another's access to money, tracking their movements, monitoring their emails or cutting them off from friends and family.
Advocates also are trying to address what they describe as other blind spots in the state law. For instance, a bill pending in Madison would allow family court judges to check their own criminal court system to learn whether a parent had any prior conviction for domestic violence or child abuse or was subject to a restraining order.
The goal is to address an information gap that can hinder family court judges when litigants are not represented by attorneys or when the reports from evaluators are thin. Under the Wisconsin Code of Judicial Conduct, judges are prohibited from conducting independent investigations. As neutral parties they can only consider evidence the parties bring to them, though they are allowed to question litigants.
The bill's sponsor, Rep. Robert Brooks, said in an April committee hearing that the legislation would enable the judges to "have all of the relevant information" when deciding custody cases. The bill has passed out of the state Assembly but still needs approval from the Senate.
"The court," he said, "is frequently unaware if a family has a history of domestic violence, even when a parent has a conviction or injunction that is publicly available in court records."
Free of fear, for a time
On Sept. 14, 2018, a Waukesha County jury came back with its verdict against Ryan Moston. He was acquitted on the strangulation charge against him. (A police officer had testified that he saw no marks or redness on Jennifer's neck.) But the jury found Ryan guilty of felony charges of stalking, false imprisonment and battery with intent of bodily harm, as well as six misdemeanor charges.
At sentencing the following month, Jennifer and Tracy urged Waukesha Judge Michael P. Maxwell to incarcerate Ryan for the maximum time possible. The women wanted years free of violence, manipulation and fear.
"I beg of you," Jennifer told the judge. "Family court is not going to save [my child] or me."
The judge's sentence fell short of the maximum, but he still gave Ryan 8 1/2 years in prison and another 10 years of "extended supervision" in the community, during which time Ryan can have no contact with Jennifer or their son.
There have been no allegations that Ryan ever tried to hurt his children. But Maxwell rejected any notion that Ryan was a good and devoted father.
"The first job that a father has to do with a son is to demonstrate to that son how to treat women," the judge wrote in his opinion. "The first place you do that is how you treat that child's mother. Whether you show that child's mother respect, whether you show that child's mother kindness and caring, those are the first things that a boy picks up on. In this case, based upon the evidence that was brought in, Ryan Moston failed that job miserably."
Ryan Moston is incarcerated at the Oakhill Correctional Institution in Dane County.
Jennifer is working, raising her family and trying to help raise awareness on issues related to violence against women. She testified at a 2019 hearing in Madison on the need for more training for guardians ad litem and, more recently, shared the story of her marriage for a Milwaukee Journal Sentinel article about the rise of domestic abuse during the pandemic.
Now twice divorced, Jennifer said she will never remarry "because he had so much control over me ... and I don't want to be that close to someone again."
She is pro-gun, supports concealed carry laws and plans to get a firearm for self-defense. "He's going to be out in six years," she said. "One hundred percent I am having a gun to protect my family. It's scary. I think about it every single day."
Jennifer knows that the boy, now 7, may want to see his dad when he becomes an adult. She doesn't want her son exposed to Ryan's hostile treatment of women, to perpetuate a cycle of abuse.
"I do not want to say it's better for him growing up without a father," she said. "It's better for him to not have that father."