4.1.3 Screening for Family Violence

It is critical to identify whether there is a “history of family violence” against your client.1  If there is, your client will have a strong case for sole custody. The 2018 revisions to La. C.C. art. 134 have made the potential for a child to be abused the primary consideration in determining the child’s best interest. If there is a history of family violence, La. R.S 9:364 will govern the custody determination. La. R.S. 9:364 creates a very high bar for the abuser to get any custodial rights other than visitation. After proving completion of a treatment program and freedom from substance abuse, the abuser must still prove that the child’s best interest requires his participation as a custodial parent because the other parent has abandoned the child, suffers from mental illness, substance abuse, or “other circumstances” that affect the child’s best interest. The phrase, “other circumstances” refers to the preceding statutory terms in R.S. 9:364(B)(3), which all involve circumstances on the magnitude of parental unfitness. Thus, under the rule of ejusdem generis, “other circumstances” must be things like the preceding terms, which amount to parental unfitness. The term, “other circumstances” must be more than the best interest standard.

Many family violence victims are traumatized and intimidated. At an initial interview, they may tell you that they only want joint custody. As attorneys, we must respect the client’s objective. However, many victims will later change their minds and want sole custody. When they change their mind, it may be too late to amend the petition and it will require more filing fees and delay in the litigation. They may not remember that you told them about their right to sole custody. It is important to discuss with the client the advantages of sole custody. If they decide they only want joint custody, you should have them sign a statement acknowledging that you advised them of their right to sole custody and the various benefits of sole custody. It is well known that many abusers use custody litigation to continue their harassment of their victim.

• 1If you identify a history of family violence, it is a good practice to involve an attorney with experience working with survivors of domestic abuse and familiar with the unique laws in this area, which differ from those applicable in other circumstances. Section 1 and Section 2 of this manual’s chapter on representing survivors of domestic violence provides extensive discussion of these issues.