5.8 Domestic Violence & Visitation

Family violence is common in many divorce and custody actions handled by legal aid attorneys. Special laws apply to visitation in family violence cases to protect the victims.1  Visitation orders should be drafted to minimize harm to the abused parent and the children. Provisions should be specific and clear so that conflict between the parties is minimized. Specific times should be set for visitation. The term “reasonable visitation” should never be used in family violence cases. Exchanges for visitation should be structured to minimize harm. Exchanges may need to be conducted by third parties and/or in public places, including police stations.

Family violence includes assault, stalking, physical abuse, and sexual abuse.2  “History of perpetrating family violence” means either more than one incident or one incident that results in serious bodily injury.3  If a history of family violence if proven, there is a presumption against granting the abuser custody.4  In Ford v. Ford, the court held that visitation could not be awarded until the “history of family violence” allegations were fully litigated.5

Under La. R.S. 9:341(A), if a court finds physical abuse by a preponderance of the evidence, the court may allow only supervised visitation between the abusing parent and abused child until the parent has completed a domestic violence intervention program.6  Enrollment is not sufficient; the program must be completed.7  Unsupervised visitation may be allowed following completion of the program only if the abusing parent proves that visitation is in the best interest of the child and would not cause physical, emotional, or psychological damage to the child.8  If visitation is awarded, the court may order restrictions, including continued supervision.9

Even if supervised visitation is awarded while an abuser is participating in the intervention program, you should be able to bring the matter back into court to stop the supervised visitation if the abuser has stopped participating without completing the program. Ineffective treatment programs may also be challenged in a hearing on a request for unsupervised visitation.

Under La. R.S. 9:366(B), an abuser’s “court ordered visitation” must be terminated upon violation of an injunction or protective order as defined in La. R.S. 9:362(5). The legislative history of R.S. 9:366(B) makes it clear that the legislature intended to eliminate the courts’ power to allow visitation for violators of injunctions.10  However, many trial courts refuse to permanently terminate all visitation by the abuser despite this express statutory mandate.

Under La. R.S. 9:364(F), if the court finds by clear and convincing evidence that a parent has sexually abused his or her child, the court must prohibit all visitation (supervised or unsupervised) between the parent and the children (not just the abused child). Thereafter, supervised visitation may be allowed but only when the court finds by a preponderance of the evidence, after a contradictory hearing, that the parent has completed a treatment program for sexual abusers and that supervised visitation would be in the child’s best interest.11  If sex abuse is proven and a protective order entered, visitation is suspended until the child turns 18 or a contradictory hearing to modify is had.12

• 1For a more thorough discussion of visitation in the context of domestic violence, see Section 8 of this manual’s chapter on representing survivors of domestic violence.
• 2La. R.S. 9:362(4).
• 3La. R.S. 9:364(A).
• 4Id.
• 501-387 (La. App. 3 Cir. 10/17/01), 798 So. 2d 316.
• 6Morrison v. Morrison, 97 CA 0295 (La. App. 1 Cir. 9/19/97), 699 So. 2d 1124.
• 7Becker v. Becker, 613 So. 2d 275 (La. App. 3 Cir. 1993); see also Hicks v. Hicks, 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261.
• 8La. R.S. 9:341(A).
• 9Id.
• 10Compare Act 1091 of 1992 with Act 888 of 1995 and Act 750 of 2003.
• 11La. R.S. 9:341(B).
• 12La. Ch.C. art. 1570(F).