Domestic Violence Law in Louisiana

Domestic Violence Law in Louisiana aetrahan Wed, 08/23/2023 - 10:41

Becki Truscott Kondkar is a Clinical Professor of Law, Director of Tulane Law School’s Domestic Violence Clinic, and founding co-Director of the Women’s Prison Project. She earned her J.D. from the University of North Carolina School of Law in 1999 and has devoted her legal career to representing victims of domestic violence and protecting parents of abused children in family court litigation. In 2019, she founded the Women’s Prison Project, which represents criminalized survivors serving long or life sentences in post-conviction, clemency, pardon, and pre-trial cases. In 2013, Professor Kondkar co-authored this Chapter with her mentor and friend, Mark Moreau, former Co-Director, Southeast Louisiana Legal Services, New York University School of Law, LL.M. in Taxation, 1982, Buffalo Law School, J.D., 1975, Brown University, A.B., 1971. Mr. Moreau worked as a legal aid attorney for 35 years and was a prior Director of the New Orleans Legal Assistance’s family violence project. He was the original author of Domestic Violence Practice in Louisiana in the 2001 and 2005 editions of the Louisiana Legal Services and Pro Bono Desk Manual. 

Tim McEvoy is an Associate Clinical Professor of Law and Deputy Director of Tulane Law School’s Domestic Violence Clinic. He earned his J.D. from the American University, Washington College of Law in 2008. He has worked as an attorney for victims of domestic violence for the past 13 years both at Tulane, and previously with Southeast Louisiana Legal Services. 

Material in this chapter is current through July 12, 2023.

1 Introduction

1 Introduction aetrahan Wed, 08/23/2023 - 10:48

Domestic violence is the leading cause of female poverty1  and homelessness2  in America. The overwhelming majority of homeless families in the United States are made up of single mothers with children, and domestic violence is a direct cause of homelessness for many, if not most of them.3  Although it is true that domestic violence exists at all levels of our society, the lower a woman’s income, the more likely she is to experience violence across more stages of her lifespan and at the hands of more perpetrators.4  At the same time that poverty increases a woman’s risk of repeat victimization, the victimization women experience often keeps them trapped in poverty.5  For all of these reasons and more, intimate partner violence perpetuates a intergenerational harm and economic deprivation in families and communities.

Unfortunately, Louisiana is among the most dangerous places a woman can live.6  We consistently rank in the top 5 states where women are most often killed by men.7  At the same time, Louisiana has the highest poverty rate in the nation8  and the second largest gender pay gap.9  These conditions correlate with both higher rates of domestic violence and fewer informal social networks to support survivors.10  Yet many face civil and criminal court systems that are challenging to navigate pro se, and are often outright hostile to their requests for protection. A 2019 Amnesty International Report issued scathing conclusions about the barriers Louisiana women face when seeking protection from abuse.11

In this context, holistic legal assistance is essential for domestic violence survivors and their children. The major reasons that women do not leave abusive partners include fear of retaliatory attacks, lack of economic resources, fear of losing custody of their children, and ineffective or harmful responses from law enforcement. Virtually all civil law practice areas provide opportunities to help abused women protect themselves and their children from abusive former partners.

This chapter focuses primarily on family law issues for domestic violence survivors. It is important to note up front that domestic violence cases in family court require specialized training and expertise that many family law practitioners do not have. Attorneys should not assume that domestic violence cases can or should be handled in the same manner as ordinary or even “high conflict” family court litigation nor that the types of outcomes that are acceptable in those cases would be safe for survivors of abuse and their children. Abusive former partners tend to approach and participate in family court proceedings differently than other adverse parties. Many abusive former partners are motivated by a desire to maintain power and control over a victim who has ended the relationship and attempt to do so by seeking custody of shared children, by avoiding support obligations, or by tying victims up in vindictive litigation.

Family law resolutions that are common and often legally preferred - such as shared child custody - are often physically dangerous and emotionally harmful for survivors and their children. Even when children have not themselves been physically abused, those who witness violence against a parent are traumatized by it and can suffer lasting effects into adulthood.12   Continued contact with an abusive parent can cause confusion and fear, especially in cases where the abusive parent refuses to acknowledge the abusive behavior and wants to ignore that it ever happened. And after separation, children are more likely to become the target of abuse - even if they have not been previously.  Whether a child was the subject of abuse, or witnessed it against a parent, it can take a long time (and a lot of therapy) before unsupervised visitation is in a child’s best interest.

Fortunately, Louisiana has enacted laws that recognize these problems, provide safe legal options for survivors and their children, and limiting the trial court’s ability to ignore or minimize the effects of violence on families.

Louisiana’s Post-Separation Family Violence Relief Act (PSFVRA) governs child custody determinations in family violence cases and is premised upon key legislative findings relevant to its interpretation by courts:

The legislature further finds that the problems of family violence do not necessarily cease when the victimized family is legally separated or divorced. In fact, the violence often escalates, and child custody and visitation become the new forum for the continuation of the abuse. Because current laws relative to child custody and visitation are based on an assumption that even divorcing parents are in relatively equal positions of power, and that such parents act in the children’s best interest, these laws often work against the protection of the children and the abused spouse in families with a history of family violence. Consequently, laws designed to act in the children’s best interest may actually effect a contrary result due to the unique dynamics of family violence.13

As discussed throughout this chapter, the Post Separation Act and other Louisiana laws designed to support survivors are often vitally important to the safety and well-being of our clients and their children.

  • 1Throughout this chapter, we refer to clients and survivors of abuse as female. We made this choice because the vast majority of adults who are subjected to abuse are women who are abused by men, almost 90% in most years. And most people living below the federal poverty threshold who seek free legal assistance for issues relating to the abuse they experience are single mothers with children who are abused by men. With that said, the authors recognize that men also experience abuse at the hands of both male and female intimate partners, and that intimate partner violence occurs between intimate partners of the same gender.
  • 2See generally Costs of Intimate Partner Violence Against Women in the United States, Nat’l Ctr. for Injury Prevention & Control (2003).
  • 3Some Facts on Homelessness, Housing, and Violence Against Women, Nat’l Law Ctr. on Homelessness & Poverty (2012).
  • 4Claire Renzetti, Intimate Partner Violence and Economic Disadvantage, in 1 Violence Against Women in Families and Relationships 73 (Evan Stark & Eve Buzawa. eds., 2009).
  • 5Id.
  • 6When Men Murder Women: An Analysis of 2020 Homicide Data, Violence Pol’y Rsch. Ctr. (2022).
  • 7Id.
  • 8QuickFacts, U.S. Census Bureau,
  • 9Inst. of Women’s Pol’y Rsch., Status of Women in the States (2018).
  • 10See generally Donna Coker, Why Opposing Hyper-Incarceration Should be Central to the Work of the Anti-Domestic Violence Movement, 5 U. Miami Race & Soc. Just. L. Rev. 585 (2015).
  • 11Amnesty Int’l, Fragmented and Unequal: A Justice System that Fails Survivors of Intimate Partner Violence in Louisiana, U.S.A. (2019).
  • 12Lundy Bancroft et al., The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics 156 (2d ed. 2012) (children whose mothers are subjected to abuse have increased risk of emotional and behavioral difficulties, including educational issues, substance abuse, increased suicidality, developmental delays, increased interaction with criminal justice system and violence).
  • 13La. R.S. 9:361.

2 Lawyering in Domestic Violence Cases

2 Lawyering in Domestic Violence Cases aetrahan Wed, 08/23/2023 - 14:42

2.1 Ethical Lawyering

2.1 Ethical Lawyering aetrahan Wed, 08/23/2023 - 14:42

Lawyer competence in domestic violence cases requires that attorneys understand both the substantive law related to a client’s legal claims and the dynamics and effects of domestic violence.1  A lawyer who possesses basic competence about domestic violence is more likely to adequately address client safety concerns when crafting legal strategy and resolutions, to identify or discover important evidence, and to help the trier of fact understand victim behavior that seems counter-intuitive or self-destructive when not properly contextualized. Competence also allows for legal outcomes that are safer and more effective in the long run and that don’t lead to unforeseen consequences.

  • 1See generally Am. Bar Ass’n, Comm’n on Domestic & Sexual Violence, The Domestic Violence Civil Law Manual: Protection Orders and Family Law Cases (4th ed. 2017).

2.2 Key Areas of Assistance

2.2 Key Areas of Assistance aetrahan Wed, 08/23/2023 - 14:44

2.2.1 General Principles

2.2.1 General Principles aetrahan Wed, 08/23/2023 - 14:44

A 2003 study found that legal assistance is the most effective service for reducing domestic violence in the long run.1  Examples of how civil legal assistance can make a difference for survivors appear in the following sections.

  • 1Amy Farmer & Jill Tielenthaler, Explaining the Recent Decline in Domestic Violence, 21 Contemp. Econ. Pol’y 158, 159 (2003).

2.2.2 Protective Orders

2.2.2 Protective Orders aetrahan Wed, 08/23/2023 - 14:45

Protective orders do not guarantee safety. But a comprehensive study examining the effectiveness of protective orders concluded that victims experienced a significant reduction in abuse, violence, and fear during the 6 months following issuance of a protective order.1  Protective orders, once in place, criminalize conduct that usually would not be a criminal offense, e.g., contact by telephone or through third parties. They can also help a victim receive assistance from the police and support from family, employers, and leaseholders.

  • 1TK Logan & Robert Walker, Carsey Institute, Policy Brief No. 18, Civil Protective Orders Effective in Stopping or Reducing Partner Violence 2 (2011). The study also shows reduced efficacy when stalking behavior preceded the protective order, and differences in effectiveness for urban and rural victims. Rural women experienced more violations of protective orders than urban women in the study. Id. at 3.

2.2.3 Divorce

2.2.3 Divorce aetrahan Wed, 08/23/2023 - 14:48

Divorce can help end the violence. Some abusive partners no longer view their spouses as property after divorce. Divorce can also provide the survivors with certain financial protections and with a sense of freedom to move on emotionally.

2.2.4 Child Custody & Visitation

2.2.4 Child Custody & Visitation aetrahan Wed, 08/23/2023 - 14:49

Many abusive former partners use child custody litigation to continue their harassment and abuse of victims.1  Assistance with custody and visitation are the most requested legal services for survivors. Many abusers also physically, sexually or emotionally abuse their children.2  But even when domestic violence and physical abuse of a child do not co-occur, well regarded empirical studies show that many children who are exposed to domestic violence perpetrators in their home suffer social, cognitive, and psychological consequences virtually identical to those suffered by children who are themselves physically abused.3  Good lawyering in domestic violence cases can help victims obtain custody orders that protect themselves and their children from future harm and reduce the likelihood of these outcomes.

  • 1Peter Jaffe, et al., Dep’t of Justice Canada, Making Appropriate Parenting Arrangements in Family Violence Cases: Applying the Literature to Identify Promising Practices 16 (2005); Joan Zorza & Leora Rosen, Guest Editor’s Introduction, 11 Violence Against Women 983, 985–86 (2005).
  • 2Jaffe, et al., supra.
  • 3Evan Stark, The Battered Mother’s Dilemma, in 2 Violence Against Women in Families and Relationships 95, 112 (Evan Stark & Eve Buzawa. eds., 2009); A Judicial Guide to Child Safety in Custody Cases, Nat’l Council Juvenile & Family Court Judges, 6 (2008), (citing Behind Closed Doors: The Impact of Domestic Violence on Children, UNICEF (2006).

2.2.5 Spousal & Child Support

2.2.5 Spousal & Child Support aetrahan Thu, 08/24/2023 - 10:51

Many survivors need child or spousal support after separation to maintain self-sufficiency and household well-being. However, abusive former partners are much less likely than non-abusive partners to pay child support.1  They often stop paying support to force the victim to return to the relationship or to punish them for leaving. The effects of abuse, including the trauma of abuse and the employment disruption often associated with abuse, can also make it difficult for survivors to quickly get or maintain employment and to build long-term financial security.

  • 1Lundy Bancroft, et al., The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics 156 (2d ed. 2012).

2.2.6 Community Property

2.2.6 Community Property aetrahan Thu, 08/24/2023 - 10:53

The survivor’s right to a home, car, or pension may be essential to avoiding homelessness, keeping a job, or securing economic independence. While these assets may be essential for financial stability, victims of abuse routinely negotiate away financial support and assets to which they are entitled in exchange for securing safe custody arrangements for their children.1  A informed lawyer can provide legal guidance and advice on how to reduce unnecessary concessions and maintain a victim’s financial stability.

  • 1Evan Stark, The Battered Mother’s Dilemma, in 2 Violence Against Women in Families and Relationships 95, 114 (Evan Stark & Eve Buzawa. eds., 2009).

2.2.7 Housing

2.2.7 Housing aetrahan Thu, 08/24/2023 - 10:54

Up to 50% of all women and children experiencing homelessness are fleeing domestic violence.1  Even if not unhoused, victims of domestic violence and their children often live in chronically unstable housing circumstances that contribute to negative health and social outcomes.2  It costs survivors thousands of dollars for each housing relocation necessitated by domestic violence.3  In Louisiana, finding a new apartment and moving can easily cost thousands of dollars, without counting all the personal property the abuser may destroy or the victim has to abandon.4  And even when a victim is not fleeing from domestic violence, abusive partners sometimes force housing emergencies by failing to pay the mortgage or rent or causing the victim to be evicted because of his conduct.5  Eviction for a lease violation can cause a subsidized tenant to lose her rent subsidies for several years. For this reason, victims receiving subsidized housing assistance need specialized help to protect their housing rights.6

  • 1Chiquita Rollins, et al., Housing Instability is as Strong a Predictor of Poor Health Outcomes as Level of Danger in an Abusive Relationship, 27 J. Interpersonal Violence 623, 625 (2012).
  • 2Id. at 635.
  • 3In 2004, the estimated cost was $5000 per relocation, so today the cost is presumably much higher. Barbara Hart & Erika Sussman, Civil Tort Suits and Economic Justice for Battered Women, Victim Advocate (Spring 2004).
  • 4See Louisiana Fair Market Rent, For the state as a whole, the fair market rent for a two-bedroom apartment is $763 a month, while for the New Orleans metro area, FMR for a two-bedroom unit is $1,182. Moving in typically requires payment of first month’s rent along with a security deposit equal to a month’s rent, in addition to any application fees.
  • 5While there are some protections for tenants experiencing domestic violence, these are limited. For further discussion, see Section 5.3.3 of this chapter Section 1.7 of the chapter on landlord-tenant law.
  • 6For discussion of unique issues facing subsidized housing tenants, see Section 10.2 of this chapter and Section 1.4.6 and Section 4.1 of the chapter on federally subsidized housing.

2.2.8 Employment

2.2.8 Employment aetrahan Thu, 08/24/2023 - 11:14

Abusive partners often harass their victims at work or engage in other conduct that gets them fired.1  Absences from work due to court appearances and abuse can also lead to problems with employers. Job protection is essential to economic independence.

  • 1Bureau of Justice Statistics, Female Victims of Crimes (1991) (abusers harass 74% of employed battered women at work either in person or by phone); Kathryn Showalter, Women’s Employment and Domestic Violence: A Review of the Literature, 31 Aggression and Violent Behavior 37, 40 (2016) (61.4% of women harassed on the phone at work and 39.2% harassed in person at work).

2.2.9 Public Benefits

2.2.9 Public Benefits aetrahan Thu, 08/24/2023 - 11:18

A victim may need help with Temporary Assistance for Needy Families (TANF), Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), disability benefits, Social Security payments, and unemployment compensation.1

  • 1On unemployment compensation, see Section 5 of the chapter on employment law.

2.2.10 Taxes

2.2.10 Taxes aetrahan Thu, 08/24/2023 - 11:19

Filing joint tax returns with an abusive partner can cause survivors to incur unexpected tax liabilities. Many abusive partners keep their spouses in the dark about financial information. Significant innocent spouse, injured spouse, and equitable relief may be available to victims who face tax liabilities caused by an abusive partner. Victims may also need assistance securing their rights to the Child Tax Credit, the Child and Dependent Care Tax Credit, and/or the Earned Income Credit, which can improve their financial situation. Although the Child Tax Credit can be extremely helpful for survivors with children, abusers often seek to claim the credit for themselves, resulting in litigation. The IRS provides an overview and Frequently Asked Questions on tax issues specific to victims of domestic violence.1

2.2.11 Consumer Debt & Credit Issues

2.2.11 Consumer Debt & Credit Issues aetrahan Thu, 08/24/2023 - 11:22

Economic independence can be supported by the reduction of consumer debt through bankruptcy and non-bankruptcy strategies.1  Almost all victims (99 percent) of intimate-partner violence will face some type of economic abuse in their relationship.2  Although many people assume that victims of abuse are always financially dependent upon abusive partners, often the opposite is true. Many times, the abusive partner exploits the victim through taking/spending her earnings and using her credit. In addition to coercing victims into unwanted debt, abusive partners sometimes secretly ruin their partner’s credit, take out credit in their names without their knowledge, and commit identity fraud for personal financial gain. So, survivors sometimes need assistance correcting or restoring their credit histories or pursuing criminal and civil remedies for identity theft. The remedies available to victims of this type of economic abuse may differ depending upon whether the parties are married. The Center for Survivor Agency & Justice provides excellent on-line resources, technical support, and training to attorneys representing survivors who need consumer advocacy on issues relating to coerced debt.3

2.2.12 Immigration

2.2.12 Immigration aetrahan Thu, 08/24/2023 - 13:35

An immigrant spouse who leaves an abusive partner may face deportation. Abusive partners sometimes use immigration petitions and I.C.E. as a means of coercion and control over immigrant spouses. Abusive partners who already have citizenship often threaten to withhold or withdraw their immigration assistance and affidavits of support if the victim calls the police or leaves, sometimes even contacting have the victim arrested at a protective order hearing.1  This power imbalance gives the abusive partner significant leverage to control and isolate the abused spouse. In cases where the abusive partner is undocumented, the partner subjected to abuse may feel reluctant to report the violence for fear of the abusive partner’s deportation. Many survivors in this situation desire for the abuse to stop but may not want the abusive partner deported.

An immigrant survivor may self-petition (i.e., file a petition in her own name) the USCIS for legal resident status or suspension of deportation. Although not usually allowed under federal regulations, Legal Services Corporation (LSC) attorneys may represent immigrant domestic violence victims in domestic violence matters. Family law cases involving people who have very recently immigrated to the U.S. may present immigration-related risks that lawyers must be aware of when providing representation; these cases may also present challenges that need to be planned for if witnesses to the abuse and evidence of the abuse are in the home country.2

2.2.13 Victim Compensation Funds

2.2.13 Victim Compensation Funds aetrahan Thu, 08/24/2023 - 13:39

Survivors may be eligible for reparations under the Louisiana Crime Victims Reparations Act.1  Among other things, victim compensation can be awarded for medical bills, dental expenses, lost wages, relocation expenses, and mental health counseling necessitated by the crime. The application for compensation must be filed within one year of the crime. Lawyers can help determine a client’s eligibility for victim compensation, assist with necessary paperwork, and advocate for clients as they navigate the process of requesting compensation. A state website explains the process in Louisiana.2  Claims must be filed through the victim’s local sheriff’s office. The state maintains a list of contact information for the victim compensation claims person in each Sherriff’s office.3

2.3 Safe Lawyering

2.3 Safe Lawyering aetrahan Thu, 08/24/2023 - 13:45

2.3.1 Office Protocol

2.3.1 Office Protocol aetrahan Thu, 08/24/2023 - 13:45

Lawyers should be realistic about client safety concerns. No lawyer can protect their client from a determined domestic violence perpetrator. We can, however, take steps to minimize the risks our clients, ourselves, and others face. Safety tips for lawyers include:

  • Screen to determine whether your client has been or is being subjected to abuse even if they are there for a different reason. (You may want to use the Power and Control Wheel in your screening.1 ) Simply asking someone whether he or she is a “victim of domestic violence” is not an effective screening tool because victims often do not readily identify themselves as “victims” in response to that question. Additionally, be on alert for other issues that may necessitate further screening (e.g., if the client’s partner accompanies her to the office and insists on participating in the interview, listens to your phone conversations, or is excessively litigious. These can be signs that domestic violence is involved).
  • Assess the level of risk to your client and make sure she has a safety plan. Maintain a close and continuing partnership with an agency or organization that has expertise in both risk assessment and safety planning so that clients who are in danger can be connected to resources right away.2
  • Keep all client information confidential. Train office staff on office security procedures and the importance of absolute confidentiality. Safeguard any client files that are taken out of the office.
  • Protect the confidentiality of your client’s addresses (work, home, and children’s new school) in pleadings and discovery to the extent possible.3
  • Practice safe communications with your client. This means first establishing safe contact information and carefully documenting client files with this information. Your client file should clearly and prominently indicate whether and when it is safe to call a client, whether it is safe to leave messages, and whether it is safe to mail documents to her at home.
  • When you do initiate contact by telephone, speak only to your client. Do not tell a family member that you are a lawyer. If possible, block caller ID when you call. At the beginning of each call, ask your client if it is safe to talk. Do not leave messages on voice mail and never leave detailed messages at all. In high-risk cases, have a code word or expression that you and your client both understand is a signal that your client is in danger.
  • Let your client know ahead of time about case developments so that she may take extra safety precautions if the abusive party becomes angry. Always keep your client informed about the filing and service of pleadings on former abusive partners so that she can do appropriate safety planning.
  • For lawyer safety, avoid using your own cell phone to contact clients. Many abusive partners routinely monitor their partner’s communications and will not hesitate to “return” your call. Because of this risk, you may not want to identify your agency on your own voicemail greeting. If you do need to use your cellphone out of necessity or need to text your client, use a calling app like Google Voice to help keep your personal number private.
  • Clients should not be kept in a public waiting room in your office when safety is potentially an issue. Consider telephone intake or other security measures when needed.
  • 1For a copy of this tool to assess the overall patterns of abusive and violent behaviors in a case, see Domestic Abuse Intervention Project, Power and Control Wheel.
  • 2For further discussion of safety plans and maintaining connections with resources for formulating them and supporting clients, see Section 2.3.3.
  • 3In Louisiana, only protective orders under La. R.S. 46:2135–2136 expressly allow the victim’s address to remain confidential. However, lawyers can file motions as needed to protect address confidentiality, especially when responding to discovery requests.

2.3.2 Court Protocol

2.3.2 Court Protocol aetrahan Thu, 08/24/2023 - 14:01

Court hearings pose special risks in domestic violence and stalking cases. On the day of court, a dangerous former partner or stalker knows exactly when and where to find their victim. Lawyers should follow strict safety protocols for themselves and their clients:

  • Arrive early to court so that your client is not alone in the courthouse hallway or courtroom with an abusive partner.
  • Meet your client inside the courthouse, on the inside of the security checkpoint. Do not stand outside of the courthouse or outside of the security checkpoint with your client either before or after court.
  • Your client should be accompanied to the courthouse by someone if possible, and you should try to make arrangements that do not require that your client be in physical proximity to the abusive former partner while waiting for her case to be called.
  • In some cases, you may want to introduce your client to a court officer and identify the abusive partner. If the courthouse does not have a safe place for victims, advise your client to stand or sit near a deputy. Never leave your client alone with the abusive former partner. You should sit between the other party and your client during any hearing that requires the parties be in close proximity.
  • At the conclusion of your hearing, ask the court to order that the opposing party remain in the courtroom until your client can leave the courthouse. Ask if your client can be escorted by a security officer, if available. Be aware that the abuser’s relatives may also present a risk to your client. Sometimes courts will order that the abusive party leave first, which creates the risk that he will wait outside. Communicate these concerns to the court as necessary.
  • Hold depositions in safe settings, e.g., a courthouse with a metal detector. Follow the safety rules for court appearances. If necessary, try to quash depositions that seek your client’s personal attendance in the presence of the abusive party. Use technology, such as Zoom, to conduct remote depositions if safety concerns cannot be overcome.
  • The abusive party’s attorney is often inexperienced in domestic violence or family law and may create more safety risks. Be explicit with opposing counsel regarding your expectations relating to safety protocols, e.g., whether his or her client can be present for depositions, settlement negotiations, etc. 

Note on victims of stranger/acquaintance stalking: Keep in mind that victims of stranger or acquaintance stalking may face different or even heightened threats associated with civil court proceedings. In these cases, civil court processes may make the situation more dangerous by increasing opportunities for contact with the victim and by disclosing personal information about victims that can later be used to track or stalk them. In cases like these, carefully consider whether the client’s safety goals might be better addressed through criminal legal proceedings. At the very least, minimize the stalker’s opportunity to engage with the victim by ensuring that clients do not make unnecessary in-person appearances for court, discovery, or other litigation related proceedings.

2.3.3 Lethality Assessments

2.3.3 Lethality Assessments aetrahan Thu, 08/24/2023 - 14:04

Lawyers representing victims of abuse should always try to ascertain the level of risk or danger to each client. If the case has been referred by a shelter or another battered women’s organization, ask for their assessment of lethality. A simple rule of thumb for assessing risk is to determine whether your client is afraid she will be killed or hurt. A victim’s perception that she is in danger is a reliable indicator that she is.1

Attorneys will often be assisting a victim during a time when she faces heightened risks and must take special precautions for her safety. Separation from the abuser is the most dangerous time for victims.2  Also keep in mind that abusive partners who violate protective orders, strangle their victims, commit violence in public, and stalk or escalate the violence at separation are particularly dangerous.

The following factors may be used to help assess whether the abuser has the potential to kill his partner:

  • Threats of homicide or suicide
  • Fantasies of homicide or suicide
  • Stalking
  • History of victim strangulation
  • Depression or other mental health issues
  • Access to or use of weapons
  • Obsession about the partner or her family
  • Centrality of the victim to the abuser’s life
  • Substance abuse
  • Rage or separation violence
  • Frequency of violence
  • Escalation of violence
  • Violation of protective order
  • Prior criminal history or protective orders
  • Hostage taking
  • Abuse of pets          

The more of these factors present, the greater the risk of severe harm to your client.3

  • 1Jacquelyn C. Campbell, et al., The Danger Assessment: Validation of a Lethality Risk Assessment Instrument for Intimate Partner Femicide, 24 J. Interpersonal Violence 653, 657, 669–70 (2008). In this study, the authors conclude that a victim’s perceived risk of being killed or harmed was a strong indicator of actual risk. At the same time, the victim’s perception cannot be the only measure of risk because many victims also minimize their risk as a coping mechanism. Id.
  • 2Evan Stark, The Battered Mother’s Dilemma, in 2 Violence Against Women in Families and Relationships 95, 104 (Evan Stark & Eve Buzawa. eds., 2009) (pointing out that the majority of abuse victims are not living with their perpetrator and that physical separation is rarely an “antidote” for abuse).
  • 3Am. Bar Ass’n Comm’n on Domestic & Sexual Violence, Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault, and Stalking in Civil Protection Order Cases 44 (2007). Most of these factors may also be found in Campbell, et al., supra.

2.3.4 Safety Planning

2.3.4 Safety Planning aetrahan Thu, 08/24/2023 - 14:09

Making sure that your client has a safety plan, either by helping her create one or by referring her to someone who will, is a fundamental obligation in domestic violence cases. Ideally, your client will have developed a safety plan with a counselor or case worker specialized in working with survivors. But do not just assume that she has one – always ask. If she does not have a safety plan, discuss the need for one with her and refer her to a counselor who can help her develop one. In the meantime, help her plan some essential strategies for safety (discussed below).

When an attorney believes a client faces immediate danger, it can be tempting to recommend that the client immediately go into a “shelter.” However, such a recommendation can be overwhelming for some clients. The practical realities of many survivors who have children and jobs make flight to a “shelter” nearly impossible, even assuming that such resources are even available. Conversations about safety require a much more nuanced assessment of a client’s individualized situation, and lawyers should be collaborative with clients during these discussions to avoid seeming condescending or insensitive to the complexity of their circumstances.

One of the first steps to take with respect to client safety planning is to assess the client’s phone and technology situation and whether it presents risks. If your client or her children’s cell phone accounts are tied to the abusive party’s cell phone account, the abusive party can likely activate GPS location tracking. Also talk to your client about whether the abusive party has access to passwords for email accounts, Facebook accounts, or other social media accounts that can be used to monitor, locate, or impersonate them. Clients should be thoughtful about whether social media posts, including photos, might help an abusive party monitor their activities or locate them.

The American Bar Association Lawyers’ Handbook on Domestic Violence and other guides recommend that you advise your client to:

  • ALWAYS keep a protective order on her person and extra copies of her protective order at home, at work, and at any protected child’s school. She may also want to store a photo or copy of the protective order on her cell phone. A photo of the abusive party stored on the cell phone may also help law enforcement or security personnel.1
  • Visit her local police station. Meet the officers and ask them to place her protective order on file. Although there is a protective order registry that is accessible by law enforcement, it is updated slowly at times and is not always available.
  • Make the home as safe as possible and go to a safe place with the children if necessary.
  • Develop an escape route and a safety plan for the family.
  • Keep a bag packed and hidden in case flight becomes necessary.
  • Keep a copy of all essential documentation, phone numbers, and addresses in a safe location other than home.
  • Tell neighbors and co-workers the abuser’s identity.2
  • Alter routines and trade cars with a friend or relative.
  • Travel to and from work with another person.
  • Stay alert and prepared to flee while exiting or entering vehicles.
  • Keep their addresses and telephone numbers confidential.
  • Screen incoming calls and keep a diary.
  • If affordable, get a cell phone to call the police at 911. Most cell phones, even when not activated, can be charged and programmed to call 911.
  • Give protective orders to school authorities to prevent the abusive party from picking up the children.
  • Refrain from using Facebook and other social media—these can be used to track down your client. However, clients should be told to preserve, not delete social media accounts or profiles. Deleting accounts can sometimes trigger an abusive party who is monitoring the victim on social media to track the victim down in person. Also, the accounts often have evidence associated with them that needs to be retained for future litigation.
  • Be specific. When discussing safety issues with your client, prompt the discussion with questions like:
  • Where will he know to look for you?
  • Does he know he can find you at the children’s school or bus stop?
  • Does he know what church service you attend every week?
  • Do you need to change the locks on your home?
  • Do your children know what to do if he comes to your house?
  • Do you have any friends or family who cannot be trusted to keep your address confidential?

Note on address confidentiality: The Louisiana Secretary of State maintains an address confidentiality program for victims of domestic violence, sexual abuse, and stalking. The program is designed to prevent abusers from locating victims using public records and provides a victim with a substitute address in place of their actual address. If you are working with a victim who is relocating, this system works best if she contacts the program before the actual relocation so that no records are made of the new address. To begin the process, visit the Secretary of State’s website.3

  • 1Louisiana law requires the clerk of court to file protective orders with the state’s protective order registry. This enables the police in any parish to check the state registry.
  • 2Photographs may be helpful. The client should consider notifying her supervisor. Apartment complex security should be notified.
  • 3Address Confidentiality Program, La. Sec’y of State.

2.4 Interview Tips

2.4 Interview Tips aetrahan Thu, 08/24/2023 - 14:13
  1. Shame, fear, pride, privacy, or distrust may prevent a survivor from talking about abuse. She may feel that she will be judged, or she may have concerns about privacy and confidentiality. Confidentiality issues are important to address early on in the lawyer/client relationship because of some victims’ tendency to believe that an abusive partner is omnipotent – in other words, that he has the ability to know where the victim is and what she is doing at all times and is connected to “important” people in the community.

  2. The Power and Control Wheel is a good tool to help plan an interview.1  Work gradually toward direct, factual questions to elicit information, e.g., Are you afraid of him? Has he ever hurt you or threatened you? Has he ever pushed, hit, or kicked you? Has he ever put his hands around your neck when he’s angry?

  3. Many women will minimize the abuse, or the effects of the violence on their children, as a means of coping or because it has become somewhat “normal.” One common way that victims minimize abuse is to describe it in terms that suggest mutual violence (e.g., “we were fighting”). Make sure to clarify these issues with follow-up questions.

  4. Do not confuse futile retaliatory violence by a victim with “mutual conflict.” If a victim perceives that you will not believe she is a victim if she tells you the truth about her own conduct, you may miss important information. Most victims do get angry and do fight back. Be realistic about the fact that not all physical acts of resistance or violence against an abuser are self-defense. However, just because a victim has engaged in these normal reactions to abuse does not mean she does not need protection.

  5. If you feel your client is minimizing the danger she is in, be honest and tell her that you are concerned for her safety and the safety of her children.

  6. Never blame the victim. Respond to her in a non-judgmental way, and do not second-guess the choices that she made while trying to navigate or manage the situation she was in. If a client blames herself or makes excuses for the abusive partner’s conduct, do not ignore it. Tell the client that it is not her fault and nothing she did can justify the abusive party’s conduct. Even if she had cheated on her partner (as their abusive partners so often accuse), he has no right to harm her in response.   

  7. Do not ask what she did to cause him to beat her. There is nothing about her or her actions that could prevent or justify the abuse committed against her.

  8. Do not ask why she did not leave sooner or why she went back. If you need to find out information like this later to prepare for court, you can instead ask questions like, “During that time, did you feel like you had other options? Why not?” or “Can you tell me more about what was going on during that time in your life when you moved back in?”

  9. Do not refer to the abuser by his relationship (e.g., husband, boyfriend). Refer to him by his first name or in the way the client says she wants.

  10. The danger of death or serious injury, ongoing trauma, and the welfare of her children are the immediate “life” issues that the client faces. After the client knows you will handle her immediate legal needs related to these issues, explore all her legal options for safety, economic resources, and housing.

  11. Do not interview a victim with a third party present. Although a victim may want to have a supportive friend in the room, she will lose confidentiality if you do so, and the friend can be deposed or forced to testify about what was discussed. Also, clients may not make frank disclosures of negative information with other family or friends present. The presence of new dating partners presents even more problematic issues that must be avoided. When leaving an abusive relationship, many victims are quick to enter another because it feels safer. But sometimes the new partner is also abusive, and the client has not yet realized the danger.

  12. Do not be surprised if a victim focuses on issues in the relationship other than abuse when interviewed, such as the abusive partner’s infidelity.  Victims often feel very emotional about aspects of the relationship other than physical abuse.

  13. Expect that clients may withhold “negative” information until you have earned their trust by showing that you do not judge them. It makes sense that victims will portray themselves in a favorable light when trying to get the help they need. After you have developed a rapport with your client over time, you may want to go back to ask questions about what things the abusive partner may try to use against her in court, whether or not true.

  14. Do not make assumptions about the client’s credibility based on her emotional state while recounting the abuse, or her inability to coherently describe incidents or time frames. Some victims will recount incidents of abuse with an emotionless, flat affect, which can be a sign of trauma. Similarly, the more trauma survivor has experienced, the more likely it is that she will have memory gaps, confusion about the timeline of events, and difficulty providing distinct descriptions for individual incidents of abuse. For clients like these, the process of gathering information can require multiple meetings over time. To help build a logical chronology of events during this process, use prompts such as “was this before or after your daughter was born?” or “did this happen while you were living on Fern Street, or when you were in your current house

  15. Clients can feel emotionally taxed and traumatized after recounting their experience of abuse. Make sure to allow them breaks, make them comfortable with drinks and food if needed, and even offer to take a walk with them if you can safely do so. A simple physical activity like walking can help reduce the physical trauma reactions that a victim is experiencing. And before ending an interview, take the time to transition the discussion to a topic that will help move the client out of the emotionally vulnerable space she was in while discussing the abuse she has been subjected to.

2.5 Countering Myths About Domestic Violence

2.5 Countering Myths About Domestic Violence aetrahan Thu, 08/24/2023 - 14:24

There are many myths about domestic violence. Some impair effective counseling of and advocacy for a victim. Those include the following:

Myth: Victims are poor, uneducated, helpless, emotionally fragile, and only come from marginalized groups.

Fact: While some of these factors can make someone more vulnerable to abuse or being trapped in abuse, domestic violence happens to people in all socioeconomic, ethnic, and age groups and to people of all education levels and personalities.1

Myth: Real victims are helpless and are too afraid to fight back.

Fact: Anger is the prevailing emotional response to abuse. Many people subjected to abuse are strong, willful, and resilient. Most victims engage in various forms of resistance to abusive and controlling behavior, including retaliatory violence. Many purposefully minimize their victimization by describing it in terms that suggest the violence is more mutual than it is, using terms like “we fought” instead of “he attacked me.     

Myth: Domestic violence perpetrators are poor and uneducated and have anger management issues.

Fact: People who abuse their intimate partners can be well-spoken, well-educated, socially adept, and charismatic. They rarely appear “abnormal” in psychological testing and are no more likely to suffer from mental illness than others in the general population.2  Most expertly manage their anger by directing it primarily to a specific safe, intended target: the intimate partner.

Myth: Victims choose to stay in violent relationships, and so they should accept the consequences.

Fact: People subjected to abuse by intimate partners are crime victims. Domestic violence can happen to anyone. There are many reasons why some victims do not immediately leave a relationship or return to a relationship. In many cases, victims do end the relationship, but are relentlessly pursued by abusive former partners who force their way back into victims’ separate homes. The complexities of the decision-making processes and the dangerous choices victims face are rarely obvious to an outside observer.3    

Myth: The victim’s behavior caused the battering or assault.

Fact: The victim does not cause and cannot control the abusive partner’s behavior. The perpetrator chooses to abuse his partner regardless of her behavior.

Myth: Domestic violence perpetrators can still be good parents, so long as you separate them from the victim.

Fact: Perpetrators of abuse typically engage in a wide range of harmful parenting behaviors apart from the abuse itself.4  They are unlikely to change unhealthy parenting habits at separation.5  To the contrary, after separation, children are at increased risk of physical and emotional abuse themselves, as perpetrators try to control their victim through the children – the only continued point of contact.6

  • 1See What is Domestic Abuse?, United Nations.
  • 2Lundy Bancroft, et al., The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics 24 (2d ed. 2012).
  • 3See id. at 105.
  • 4See generally id.
  • 5Id. at 67.
  • 6Id. at 160.

2.6 Using Statutes Strategically

2.6 Using Statutes Strategically aetrahan Thu, 08/24/2023 - 14:34

Louisiana has several civil statutes that create legal remedies designed specifically for victims of domestic violence. The most commonly used statutes include the Protection from Family Violence Act, Part II, Domestic Abuse Assistance,1  which provides for emergency protective orders, and the Post-Separation Family Violence Relief Act,2  which applies to child custody determinations where there is a “history of family violence.”3  For simplicity, in this chapter, we will generally refer to the protective order laws in the Protection from Family Violence Act, La. R.S. 46:2131–2143, as the Domestic Abuse Assistance Act or DAAA, and the Post-Separation Family Violence Relief Act as PSFVRA.

Before litigation for a client who has been subjected to abuse by an intimate partner, the lawyer should understand how these statutes may interact and/or affect strategy in any case. Attorneys should consider using a combination of these laws to address both short and long-term client needs. For example, when a victim requests temporary child custody in a protective order proceeding, the lawyer should be thoughtful about the potential effect of any resulting temporary child custody arrangements on the permanent custody case.

Try to avoid a “one size fits all” approach to domestic violence litigation. Domestic violence litigation requires careful consultation with clients about issues such as (1) whether legal action will positively or negatively impact their safety (i.e., will it be a deterrent or a trigger for this particular abusive partner?), (2) whether non-legal alternatives exist for accomplishing the client’s goals, and (3) whether litigation is likely to result in an abusive former partner having increased access to shared children (i.e., will the abusive party initiate custody litigation or begin exercising visitation he did not previously exercise?).

By exploring these issues, lawyers help clients assess the risks and benefits of any given course of action and make informed decisions about pursuing their legal rights. For example, a client may believe strongly that they need a custody order even though an abusive former partner has not sought visitation for years. It is the lawyer’s job to make sure the client understands that initiating litigation could result in increased visitation with the child or children. The client may nonetheless decide that the benefits outweigh the risks. Discuss these decisions fully and frankly with your clients. Clients who are more engaged in weighing the risks and benefits of pursuing a specific course of action are more likely to be safe and more likely to feel satisfied with outcomes from litigation and their lawyer’s service.

  • 1La. R.S. 46:2131–2143; see also La. R.S. 46:2151 (Protection from Dating Violence Act, which extends protective order laws to victims of dating partners).
  • 2La. R.S. 9:361–369.
  • 3La. R.S. 9:364(A).

3 Protective Orders Generally

3 Protective Orders Generally aetrahan Thu, 08/24/2023 - 14:36

3.1 Statutory Provisions

3.1 Statutory Provisions aetrahan Thu, 08/24/2023 - 14:36

Louisiana has multiple civil statutes under which a person may seek relief from domestic abuse by petitioning a court for a protective order or injunction:

  • Protection from Family Violence Act, Part II, La. R.S. 46:2131–2143 (the Domestic Abuse Assistance Act), and La. R.S. 46:2151, the Protection from Dating Violence Act, which applies the remedies of the Domestic Abuse Assistance Act to certain dating relationships.
  • Protection from Stalking Act, La. R.S. 46:2171-2174.
  • Protection for Victims of Sexual Assault Act, La. R.S. 46:2181-2188.
  • Post-Separation Family Violence Relief Act, La. R.S. 9:361–369.
  • Injunction against Abuse Ancillary to Divorce, La. R.S. 9:372–372.1.
  • Preliminary Injunction and Temporary Restraining Order, La. C.C.P. art. 3601–3612.
  • Children’s Code, Chapter 8, La. Ch.C. art. 1564–1575.
  • Civil Code Ancillaries, Part V, La. R.S. 9:575, protecting adult parents or grandparents from abuse by adult children or grandchildren.

Most petitioners seeking a protective order in Louisiana do so under the Domestic Abuse Assistance Act. The Domestic Abuse Assistance Act authorizes broad relief to petitioners in need of protection from abuse, including temporary restraining orders and protective orders that award relief such as temporary custody, temporary housing, temporary use of vehicles, and temporary financial support. Permanent or indefinite injunctions against abuse and harassment (not including the ancillary relief described above) are available under the Domestic Abuse Assistance Act, the Post-Separation Family Violence Relief Act1  or by request for an Injunction Ancillary to Divorce.2

  • 1La. R.S. 9:361–69.
  • 2La. R.S. 9:372.

3.2 Civil v. Criminal Orders

3.2 Civil v. Criminal Orders aetrahan Thu, 08/24/2023 - 14:37

When discussing legal options with clients, it is important to explain the differences between orders of protection issued by civil courts and those issued by criminal courts. Protective orders issued in both civil and criminal courts are enforceable by law enforcement the same way, and it is a crime to violate either of them.1  But “stay away” orders issued by criminal courts cannot include important legal remedies that many survivors need because criminal courts do not have subject matter jurisdiction over issues such as child custody, child and spousal support, and possession of a jointly used or owned residence or vehicle. So, even a victim who has a valid criminal stay away order in place may also need a civil protective order that includes some of these remedies. Moreover, many clients seeking protection feel distrustful of the criminal legal system and simply prefer to pursue civil orders of protection rather than to participate in a criminal legal case against an abusive partner.

It is important that lawyers for survivors check the status and terms of any protective order that may be associated with a criminal case against the abusive party. The expiration of a criminal stay away order may trigger the need for a civil protective order. In some cases, it may be necessary to advocate with the district attorney for protection that the client may want and is entitled to under the Code of Criminal Procedure.

Criminal courts may issue “stay away” orders pursuant to peace bonds, bail restrictions, conditions of release, or conditions of probation and sentencing orders.2  In domestic violence, stalking, and sexual assault cases, criminal courts are required to issue stay away orders as a condition of bail if the court determines that the defendant poses a threat or danger to the victim; the orders should remain in place until sentencing.3  In stalking cases, La. R.S. 14:40.2 specifically authorizes, and in the case of probation requires, that criminal courts issue protective orders to stalking victims either indefinitely or for a fixed period up to 18 months upon sentencing of the defendant.4

These criminal “stay away” orders expire at various stages of a criminal case, such as when the prosecution is dismissed, the probation is completed, or the case is otherwise resolved. Victims often receive conflicting information from the district attorney or the criminal court about when these orders expire. Moreover, prosecutors may not actively pursue them, and many victims do not even know whether an order exists or is enforceable. Civil lawyers should help clients ascertain what criminal court orders are in place and for how long.

  • 1La. R.S. 14:79.
  • 2La. C.Cr.P. arts. 26, 320, 895, 871.1.
  • 3La. C.Cr.P. art. 320(G), (L).
  • 4La. R.S.14:40.2(F)(3)(a).

3.3 Protective Order Registry

3.3 Protective Order Registry aetrahan Thu, 08/24/2023 - 14:39

The Louisiana Protective Order Registry (LPOR) is a statewide database for all court orders that prohibit abuse against a current or former spouse, dating partner, family or household member, and victims of stalking and sexual assault. All temporary restraining orders or protective orders prohibiting a person from harming a family member, household member, or dating partner, including orders entered under Louisiana’s general civil injunction statute, must be immediately entered on a Uniform Abuse Prevention Order Registry form, and forwarded to the clerk of court, who must file the order with the Louisiana Protective Order Registry no later than the following day.1  This requirement is a key safety and enforcement feature for victims of domestic violence. Orders that are not prepared on the uniform order form and that are not entered into the Protective Order Registry are more difficult to enforce because law enforcement may have difficulty verifying the order’s validity, may not have clear authority to enforce them, and are sometimes less responsive to non-registry orders. Also, it is easier for abusive partners to purchase guns in violation of the law if a protective order is not in the registry.2  Protective Order Registry forms are available on the Louisiana Supreme Court’s website.3  Note that the Registry has a variety of different LPOR forms that differ based upon what statute the petitioner is filing under, and whether the filing is an original petitioner or a petition-in-reconvention.

Even though the Registry helps ensure that orders are available to law enforcement, it is important that victims also retain a physical, certified copy of their protective order. Occasionally, orders are not timely submitted to the Registry by the clerk’s office, or the Registry could have technological difficulty or hurricane-related problems. In circumstances like these, having a physical copy of an order to show police can be critical for safety and enforcement.

  • 1La. C.C.P. art. 3607.1.
  • 2In February 2023, the United States Fifth Circuit Court of Appeals held that the federal law prohibited firearms possession by individuals subject to a protective order violated the Second Amendment. United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023). While this result calls into to question the constitutionality of Louisiana’s similar ban on firearms possession, as of this writing, the Louisiana statute has not been declared unconstitutional and remains in force.
  • 3LPOR Forms, La. Sup. Ct.

3.4 Mutual Protective Orders

3.4 Mutual Protective Orders aetrahan Thu, 08/24/2023 - 14:45

Mutual protective orders cannot be granted unless both parties have filed a petition. A protective order may not be granted to a party who has not requested one by written petition because due process requires reasonable notice to a party that an order may be issued against them.1

Lawyers untrained in intimate partner violence often view mutual orders of protection as reasonable resolutions to these cases. For the most part, they are not. Mutual injunctions are harmful and sometimes dangerous for victims. They increase safety risks and undermine important legal rights regarding child custody, support, and divorce. Some of the problems with mutual orders include: (1) mutual orders discourage victims from calling police or enforcing their orders by making them fearful of, and vulnerable to, arrest; (2) mutual orders become a tool for abusers to harass victims through contempt proceedings and arrests; and (3) mutual orders make it difficult for law enforcement to enforce orders and make predominate aggressor determinations.

In addition to these serious enforcement and safety concerns, mutual orders also disadvantage victims of abuse in future litigation. Because mutual orders imply equally abusive behavior by the parties, they can (1) make it difficult for victims to defend against fault allegations that bar them from obtaining final spousal support; and (2) cause victims to lose custodial presumptions in favor of an abused parent under the Post-Separation Family Violence Relief Act and even risk having the custodial presumption imposed against them.

Some attorneys will propose to resolve a protective order case by “dismissing” the Petition for Protection from Abuse and entering a mutual injunction against abuse and harassment that does not go into the Protective Order Registry. But the Louisiana Code of Civil Procedure requires that even those orders be immediately reduced to a Louisiana Protective Order Registry form and submitted to the registry by the clerk of court.2  Most of the problems discussed above also apply to these orders. Victims who agree to mutual injunctions of this nature are often not advised of the many potential risks associated with them, including the legal implications for future custody litigation and the safety implications of enforcement problems. Far more often than not, mutual injunctions present more risks than benefits to survivors.

  • 1Bays v. Bays, 2000-C-1727, pp. 6–7 (La. 2/21/01), 779 So. 2d 754, 757–59; see Lee v. Smith, 08-CA-455, p. 6 (La. App. 5 Cir. 12/16/08), 4 So. 3d 100, 104; Branstetter v. Purohit, 2006-CA-1435, p. 5 (La. App. 4 Cir. 5/2/07), 958 So. 2d 740, 744.
  • 2La. C.C.P. art. 3607.1.

3.5 Petitions from Abusive Partners

3.5 Petitions from Abusive Partners aetrahan Thu, 08/24/2023 - 14:47

An abusive partner who files a baseless petition can be cast with costs, if the court determines the petition was frivolous.1  A party who files a petition for an improper purpose may also be sanctioned under La. C.C.P. art. 863.2  In Woods v. Woods, the court affirmed sanctions against a petitioner-husband who used his education and experience as an attorney to wage war on his wife by filing a baseless petition against abuse.3

  • 1La. R.S. 46:2136.1(B).
  • 2See Lassair ex rel. T.P.J. v. Paul, 2022-0320 (La. App. 4 Cir. 12/14/22), 353 So. 3d 1048, 1054 (holding that court cannot cast costs to petition without a finding that petition was frivolous); Koerner v. Monju, 2016-487 (La. App. 5 Cir. 2/8/17), 210 So. 3d 935, 936; Rogers v. Rogers, 2019-0143 (La. App. 1 Cir. 9/27/19), 287 So. 3d 749, 751; Woods v. Woods, 43,182-CA, p. 15 (La. App. 2 Cir. 6/11/08), 987 So. 2d 339, 347–48.
  • 3Woods, 987 So. 2d at 347–48.

4 Civil Protective Orders

4 Civil Protective Orders aetrahan Thu, 08/24/2023 - 14:50

4.1 General Principles

4.1 General Principles aetrahan Thu, 08/24/2023 - 14:50

Most people seeking a protective order against an intimate partner request one under either the Domestic Abuse Assistance Act (DAAA)1  or the Protection from Dating Violence Act (PDVA).2  The latter differs from the former only in that it extends the relief available under DAAA to current and former dating partners who have not co-habited. Although the DAAA used to exclude same-sex partners, it now covers same-sex household members and intimate partners.

  • 1La. R.S. 46:2131–2143.
  • 2La. R.S. 46:2151.

4.2 Eligibility

4.2 Eligibility aetrahan Thu, 08/24/2023 - 14:51

The following individuals are eligible for protective orders under the DAAA:

  • Family members: spouses, ex-spouses, parents and children, stepparents, foster parents, children, stepchildren, foster children, grandparents, and grandchildren.1
  • Household members: a person presently or formerly living with defendant who is or has been involved in a sexual or intimate relationship with the defendant (whether married or not), any child presently or formerly living with defendant, or any child of the defendant.2

Dating partners are eligible for protective orders under the PDVA. The act defines a dating partner as a “person who is involved or has been involved in a sexual or intimate relationship with the offender characterized by the expectation of affectionate involvement independent of financial considerations.”3  Note that a “dating partner” does not include a “casual relationship or ordinary association” between people in a business or social context. For cases involving parties like that or involving strangers, the Protection from Stalking Act may apply.

  • 1La. R.S. 46:2132(4).
  • 2Id.
  • 3La. R.S. 46:2151(B).

4.3 Available Relief

4.3 Available Relief aetrahan Thu, 08/24/2023 - 14:53

Relief includes ex parte temporary restraining orders and protective orders. The court may order a temporary restraining order and, after a contradictory hearing, a protective order. The temporary restraining order may be entered upon a showing of good cause and without the need for a bond to be placed with the court.1  A showing of “immediate and present danger of abuse” constitutes good cause.2

Courts have significant discretion in fashioning relief for victims of abuse. Title 46 authorizes courts to enter any protective order that will “bring about a cessation of abuse.”3  This provision gives courts significant latitude in fashioning orders, and Louisiana’s courts of appeal have consistently affirmed orders that expand relief beyond that specifically enumerated in the statute.4

Available relief under the statutes includes, but is not limited to, the following:

Temporary Restraining Order, La. R.S. 46:2135

  • Prohibiting abuse, harassment, contact, or interference of the petitioner.
  • Prohibiting an abuser from going near the residence and place of employment of petitioner and minor children.
  • Awarding possession and use of jointly owned or leased property such as an automobile.
  • Awarding possession and use of the residence or household to petitioner and evicting defendant unless the residence is (1) solely owned by defendant or (2) solely leased by the defendant and the defendant has no duty of support to the protected person or party.
  • Prohibiting either party from transferring, encumbering, or disposing of property mutually owned or leased by the parties, except in the ordinary course of business or as necessary for the support of the party or the minor children.
  • Awarding temporary custody of minor children or persons alleged to be incompetent.
  • Awarding or restoring to the petitioner possession of all separate property and all personal property and restraining the defendant from transferring, encumbering, concealing, or disposing of personal property of the petitioner.
  • Allowing a party to return once to the residence, escorted by law enforcement, to retrieve personal clothing and necessities.
  • Granting the petitioner exclusive care, possession, or control of any pets that belong to or are under the care of the petitioner and the minor children who live in the household of either party and prohibit the defendant from harassing, interfering with, abusing, or injuring a pet held by either party or a minor child.

Protective Order, La. R.S. 46:2136

  • Granting the same relief available with a temporary restraining order.
  • Awarding temporary support (where there is a duty of support) or the provision of suitable housing or granting the petitioner possession of the residence to the exclusion of the defendant.
    • Defendant may be evicted from a residence solely owned by the defendant and possession given to the petitioner, if the petitioner has been awarded temporary custody of minor children born to the parties.5
  • Awarding temporary custody or establishing temporary visitation.
  • Ordering a medical or mental health evaluation (or both) of the perpetrator of abuse.
    • If an evaluation is ordered, it shall be conducted by an independent court-appointed evaluator qualified as an expert in domestic abuse.
    • After the medical evaluation, a court may order counseling or other medical treatment.
  • Ordering the defendant to pay all court costs, attorney fees, costs of enforcement and modification proceedings, costs of appeals, evaluation fees, and expert witness fees.6
  • Ordering defendant to pay all costs of medical and psychological care for abused adult and children necessitated by domestic violence.7

Remember that these lists are non-exclusive and that the court may order a wide range of additional forms of relief if it will lead to a cessation of abuse.

  • 1La. R.S. 46:2135(A). Other temporary restraining orders generally require that a monetary bond be filed into the registry of the court.
  • 2Id.
  • 3La. R.S. 46:2136(A).
  • 4See McCauley v. McCauley, 2020-27, p. 27 (La. App. 3 Cir. 10/21/20), 305 So. 3d 981, 997 (granting wife exclusive possession of husband’s separately owned residence for an 18-month period, pursuant to protective order against husband, even though husband and wife had no children together); Lepine v. Lepine, 17-45, p. 14–15 (La. App. 5 Cir. 6/15/17), 223 So. 3d 666, 676–77 (affirming suspension of co-parenting guidelines to help stop abuse by limiting contact between the parties); McCann v. McCann, 09-1341, p. 10–11 (La. App. 3 Cir. 3/10/10), 33 So. 3d 389, 395–96 (affirming order expanding eligibility for protection to step-grandchildren against step-grandfather); Francois v. Francois, 06-712, p. 6 (La. App. 3 Cir. 11/2/06), 941 So. 2d 722, 726 (affirming order expanding distance requirements for the stay away provision); Beard v. Beard, 05-302, pp. 6–7 (La. App. 5 Cir. 11/29/05), 917 So. 2d 1160, 1163 (affirming order to evict abusive partner from his separately owned property even though the eviction order was not incident to an award of child custody for petitioner).
  • 5But see Beard, 05-302, pp. 6–7, 917 So. 2d at 1163–64. In Beard, the Court affirmed an order granting the wife possession of her husband’s separately owned residence, even though she had not been awarded custody of any minor children. Id. The Court concluded that the statute provided broad discretion to make awards beyond the enumerated relief and to tailor the relief to the circumstances of the case. Id.
  • 6La. R.S. 46:2136.1(A).
  • 7Id.

4.4 Standards

4.4 Standards aetrahan Thu, 08/24/2023 - 15:07

4.4.1 Definition of Abuse

4.4.1 Definition of Abuse aetrahan Thu, 08/24/2023 - 15:07

Domestic abuse “includes but is not limited to physical or sexual abuse and any offense against the person, physical or non-physical, as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family member, household member, or dating partner against another.”1  The types of harassing conduct that abusive former partners engage in do often meet this test and fall within the scope of the Domestic Abuse Assistance Act. Applying this broad definition of domestic abuse, Louisiana courts of appeal have generally supported awards of protective orders to victims, even in absence of physical abuse.2

While physical and sexual abuse have long been understood to warrant issuance of a protective order, in 2015, the Louisiana legislature explicitly clarified that domestic abuse includes both physical and non-physical offenses against the person.3  Stalking (La. R.S. 14:40.2) and cyberstalking (La. R.S. 14:40.3) thus clearly fall within the category of nonphysical offenses against the person that warrant an order of protection.4  Note, however, that a person seeking an order of protection because of stalking or sexual assault by a current or former intimate or dating partner must file for protection under the Domestic Abuse Assistance Act, not the Stalking Act or the Sexual Assault Act. The latter acts protect victims who have been stalked or sexually assaulted by a stranger or an acquaintance.5

Since 2015, Louisiana courts have upheld the award of protective orders in cases involving a pattern of uninvited electronic communications, phone calls, messages, and other harassing conduct, in particular when the conduct rises to a level that would cause alarm or emotional distress.6  In some cases, the mere volume of calls, texts, or emails – rather than the substance - can give rise to such alarm or emotional distress.7

Even threatening and intimidating behavior that does not rise to the level of physical violence or stalking can still be grounds for issuance of a protective order.8  For example, in Cory v. Cory, the Second Circuit affirmed issuance of a protective order to a petitioner even though the husband had never hit her; he had threatened to “whip her ass,” walked toward her in an intimidating manner, and revved his truck engine while she was standing in the driveway.9  In Carrie v. Jones, the Fourth Circuit affirmed the trial court’s award of a protective order primarily on grounds that the former boyfriend sent a text stating that he wished the petitioner would die, threatened he would “show her,” and openly carried a firearm.10  In Cocheran v. Christopher, the Fourth Circuit affirmed a trial court finding that threats to turn a mother over to her former sex-trafficker fell within the definition of family violence.11  Even social media posts about, but not directed to the petitioner, can constitute grounds for an order of protection.12

Despite this favorable case law suggesting that not all “domestic abuse” falls neatly under a criminal offense, practitioners representing survivors should be familiar with the criminal statutes governing stalking, harassment, and cyberstalking. Often, the elements of these offenses are less onerous to prove than the standards that some civil district courts impose on petitioners seeking domestic violence protective orders. For example, the Louisiana Criminal Code defines stalking as “the intentional and repeated following and harassing of a person that would cause a reasonable person to feel alarmed or suffer emotional distress.”13  A petitioner who proves two or more acts meeting that standard has proved a violation of the Louisiana Criminal Code and need not rely on the less specific “includes but is not limited to” provision of the protective order statute.14

Louisiana courts have generally limited protective orders to physical abuse, sexual abuse, or offenses against a person that constitute violations of the criminal code - such as harassment that rises to the level of stalking, despite the “including but not limited to” provision.15  Most courts decline to apply the statute’s protections in cases that involve merely contentious family relationships or general harassment that does not constitute an offense against the person.16

Finally, while it can be challenging to advise clients about the likelihood of succeeding in cases that involve non-physical acts, non-injurious violence, or even a single act of domestic abuse, attorneys should be careful not to simply adopt flawed legal standards imposed by trial courts when assessing a client’s case. In particular, a battery does not need to be injurious to constitute domestic violence within the meaning of the statute,17  and a party seeking protection from abuse need not prove a pattern of violence or abuse.18

Especially in cases where you have reason to believe a judge will not follow the law, prepare in advance to preserve the issues for appeal and to timely connect your client with a legal provider who handles appeals.

  • 1La. R.S. 46:2132(3). Although this chapter focuses on cases involving intimate partner violence, domestic abuse also includes the abuse of those adults identified in La. R.S. 15:1503 when committed by an adult child or adult grandchild.
  • 2Carrie v. Jones, 2021-0659, pp. 12–13 (La. App. 4 Cir. 1/21/22), 334 So.3d 834, 844; Larremore v. Larremore, 52,879 (La. App. 2 Cir. 9/25/19), 280 So. 3d 1282, 1290; Cory v. Cory, 43,447, pp. 8–9 (La. App. 2 Cir. 8/13/08), 989 So. 2d 855, 861.
  • 3La. R.S. 46:2132(3).
  • 4See Lepine v. Lepine, 17-45, pp. 14–15 (La. App. 5 Cir. 6/15/17), 223 So. 3d 666, 675; Shaw v. Young, 2015-0974 (La. App. 4 Cir. 8/17/16), 199 So. 3d 1180, 1187.
  • 5La. R.S. 46:2173, 2183.
  • 6Larremore, 52,879, 280 So. 3d at 1290 (cyberstalking and repeated use of electronic communication to harass is domestic abuse that causes alarm and emotional distress); Carrie, 2021-0659, pp. 12–13, 334 So. 3d at 844 (text messages constituted a reasonable factual basis for issuance of a protective order); Lepine, 17-45, pp. 14–15, 223 So. 3d at 675 (threatening and “unending” messages constituted stalking and caused emotional distress); Shaw, 2015-0974, 199 So. 3d at 1187 (a “repeated pattern of verbal communications or nonverbal behavior without invitation” that would cause a “reasonable person to feel alarmed or to suffer emotional distress” satisfies the definition of domestic abuse).
  • 7Shaw, 2015-0974, 199 So. 3d at 1187.
  • 8See Cory v. Cory, 43,447, pp. 8–9, 989 So. 2d at 861; Harper v. Harper, 537 So. 2d 282, 285 (La. App. 4 Cir. 1988), Carrie, 334 So. 3d at 844.
  • 943,447, pp. 8–9, 989 So. 2d at 861.
  • 10 2021-0659, pp. 12–13, 334 So. 3d at 844.
  • 11Cockheran ex rel. Cockheran v. Christopher, 2021-0370, p. 6 (La. App. 4 Cir. 10/28/21), 331 So. 3d 389, 394. Although this case was determined under the PSFVRA, the definitions in the DAAA and PSFVRA are the same.
  • 12Shaw, 2015-0974, 199 So. 3d at 1189 (affirming award of protective order based primarily on defendant’s harassing posts about the petitioner on Facebook).
  • 13La. R.S. 14:40.2.
  • 14Patterson v. Charles, 2019-0333 (La. App. 4 Cir. 9/11/19), 282 So. 3d 1075, 1083 (holding that stalking is domestic abuse).
  • 15James v. Warren, 2017-0757, pp. 3–4 (La. App. 1 Cir. 12/21/17), 240 So. 3d 967, 969; D.M.S. v. I.D.S., 2014-0364, p. 15 (La. App. 4 Cir. 3/4/15), 225 So. 3d 1127, 1138 (finding that acts that do not rise to the threshold of physical or sexual abuse in violation of the criminal code, or an offense against the person, are not within the ambit of the Domestic Abuse Assistance Act.). But see Patterson, 2019-0333, 282 So. 3d at 1085 (holding that harassment rose to the level of stalking and constituted domestic abuse).
  • 16Launey v. Launey, 2020-72, p. 5 (La. App. 3 Cir. 11/12/20), 307 So. 3d 280, 283–84 (“Family arguments that do not rise to the threshold of physical or sexual abuse [or] violations of the criminal code are not in the ambit of the Domestic Abuse Assistance Act”); S.M. v. T.M., 19-369 (La. App. 5 Cir. 12/26/19), 289 So. 3d 141, 148 (wife’s allegations of verbal abuse and threatening texts unsupported by testimony or evidence about specific incidents insufficient to support award of protective order); Coy v. Coy, 46,655 (La. App. 2 Cir. 7/13/11), 69 So. 3d 1270 (finding that general harassment in the form of excessive phone calls was insufficient to support award of protective order); Fontenot v. Newcomer, 10-1530, 10-1531 (La. App. 3 Cir. 5/4/11), 63 So. 3d 1149 (finding parents following an adult child around town without physical violence is insufficient general harassment); Harper, 537 So. 2d 282; Culp v. Culp, 42,239 pp. 6–7 (La. App. 2 Cir. 6/20/07), 960 So. 2d 1279, 1283 (holding that parents’ bickering, child manipulation, and general harassment are beyond the scope of the statute.).
  • 17Michelli v. Michelli, 93 CA 2128 (La. App. 1 Cir. 5/5/95), 655 So. 2d 1342.
  • 18S.M., 289 So. 3d at 145 (citing McCann v. McCann, 09-1341 (La. App. 3 Cir. 3/10/10), 33 So. 3d 389) (neither the definition of “domestic abuse” under the Domestic Abuse Assistance Act nor any other provision requires evidence of a pattern of domestic abuse to obtain a protective order). McCann affirmed the award of a protective order when the petitioner proved one incident where husband struck her on the arm and hand with keys.

4.4.2 TRO Standard

4.4.2 TRO Standard aetrahan Thu, 08/24/2023 - 15:39

Under LA. R.S. 46:2135, the Court may issue a temporary restraining order upon a showing of “good cause” that an order is necessary to protect the petitioner or minor child from abuse. “[I]mmediate and present danger of abuse” constitutes good cause.

A petitioner does not have to allege recent physical violence to meet this standard. In the past, many judges refused to issue a temporary restraining order if the petitioner did not allege recent physical abuse. But in 2015, the law was changed to state that “there is no requirement that the abuse itself be recent, immediate, or present,” and that “the court shall consider any and all past history of abuse, or threats thereof” when determining whether good cause exists for a TRO.1  As a result of this change, judges must consider important historical context of abuse—even if it is remote in time.2

Although rarely invoked or cited in domestic abuse cases, the Louisiana Code of Civil Procedure also includes applicable rules governing all temporary injunctions. For example, Article 3603.1 provides that any TRO prohibiting one person from harming or going near another person must be supported by “good and reasonable grounds to fear for his or her safety or that of the children, or the complainant has in the past been the victim of abuse by the other spouse.”

  • 1La. R.S. 46:2135(A).
  • 2Id.; see also Shaw v. Young, 2015-0974 (La. App. 4 Cir. 8/17/16), 199 So. 3d 1180, 1185–86 (affirming protection order where petitioner “lived in constant fear that, because of the physical violence in the past, as soon as there was not a protective order in place, the ‘harassment will step up and it won’t be just electronic harassment.’”).

4.4.3 Protective Order Standard

4.4.3 Protective Order Standard aetrahan Thu, 08/24/2023 - 15:40

The standard for issuance of a final protective order under La. R.S. 46:2136 is that it is necessary “to bring about a cessation of abuse of a party, any minor children, or any person alleged to be incompetent” or “the threat or danger thereof.”1  Louisiana courts of appeal apply an abuse-of-discretion standard when reviewing the issuance or denial of protective orders.2

Additionally, La. R.S. 46:2136(A) makes clear that a petitioner need not wait until actual harm has happened before becoming eligible for protection. A protective order can be issued to prevent the threat, danger, or possibility of abuse.3  For example, in Newton v. Berry, the Second Circuit held that a stepfather’s act of disrobing, getting into bed with minor child, and tickling the child’s stomach constituted “grooming” behavior that met the definition of “domestic abuse,” whether or not those acts rose to the level of a crime.4  The Newton court concluded that there was “nothing in the law [that] would require the courts to ignore such behavior and leave a child at the mercy of the perpetrator until more harm is done.”5  In Wise v. Wise, the Fifth Circuit affirmed a protective order in favor of a petitioner who testified about past abuse and the defendant’s threat to retaliate against her upon release from a six-month incarceration that resulted from the defendant’s failure to pay child support.6

  • 1La. R.S. 46:2136. Note, however, that Louisiana Protective Order Registry Form 3, a protective order pursuant to La. R.S. 46:2131, includes boilerplate findings of immediate and present danger of abuse and good and reasonable grounds to fear for safety as the reasons for issuing the protective order.
  • 2Watson v. Banguel, 2022-01678 (La. 1/25/23), 353 So. 3d 717, 718 n. 1.
  • 3La. R.S. 46:2136.
  • 4Newton v. Berry, 44,383-JAC (La. App. 2 Cir. 5/20/09), 15 So. 3d 262, 276. In Newton, the court did conclude, however, that the behavior described constituted an offense under the criminal code. Id.
  • 5Id. at 267.
  • 6Wise v. Wise, 02-574 (La. App. 5 Cir. 11/13/02), 833 So. 2d 393.

4.5 Duration of the Order

4.5 Duration of the Order aetrahan Thu, 08/24/2023 - 16:07

4.5.1 TRO

4.5.1 TRO aetrahan Thu, 08/24/2023 - 16:07

Under the DAAA and the PDVA, a TRO can last up to 21 days.1  It can be reissued as deemed necessary by the court if the hearing is continued.2  A continuance must be set within 15 days unless there is good cause for further continuance.3

Although the more general injunction provision in La. C.C.P. art. 3604(C) appears to allow temporary restraining orders to last longer than 21 days, attorneys should not rely on that provision. Where there are conflicting statutes, the more specific governing statute prevails over the more general one; so, the DAAA provisions prevail over those in the general civil injunction statutes.4

  • 1La. R.S. 46:1235(B). This limit also applies to TROs issued under the Protection from Dating Violence Act.
  • 2La. R.S. 46:2135(E).
  • 3Id.
  • 4Barber v. Barber, 2015-1021, p. 3 (La. App. 1 Cir. 4/15/16), 2016 WL 1535195.

4.5.2 Protective Order

4.5.2 Protective Order aetrahan Thu, 08/24/2023 - 16:09

Different time limits may apply to different portions of a final protective order. For orders issued under either the Domestic Abuse Assistance Act or the Protection from Dating Violence Act, the portion that directs a defendant to refrain from abusing, harassing, or interfering with the victim can last indefinitely.1  Under La. R.S. 46:2136(F)(1), the remaining portions of the order must be for a fixed time not to exceed 18 months. But an order lasting 18 months or fewer may be extended at the judge’s discretion after a contradictory hearing.2

Orders of protection granted for an indefinite period are considered permanent, though a defendant may later move to modify. Modification can happen only after specific notification requirements to protect the victim have been satisfied and after a contradictory hearing.3

As a practical matter, most judges issue orders that fully expire in 12 or 18 months. Although the law does not impose a higher or different legal standard for non-expiring provisions, lawyers should be prepared to argue specific reasons why the prohibition against abuse and harassment should be made indefinite. Supporting reasons could include factors such as 1) the nature, extent, and severity of abuse; 2) a lengthy history of abuse; 3) a demonstrable disregard for consequences, such as protective order violations or multiple arrests; and 4) lethality indicators such as strangulation, stalking, and gun-related threats.

Regardless of the practices of individual judges, clients should always be advised about their right to pursue indefinite/non-expiring orders of protection before consenting to or requesting orders of a fixed duration.

  • 1La. R.S. 46:2136(F)(2).
  • 2La. R.S. 46:2136(F)(1). For further discussion of extending protective orders, see Section 4.6.2.
  • 3La. R.S. 46:2136(F)(2)(c).

4.5.3 Ancillary Relief

4.5.3 Ancillary Relief aetrahan Thu, 08/24/2023 - 16:10

Generally, child custody, support, and other ancillary relief provisions expire with the expiration of the Domestic Abuse Assistance Act protective order. Under La. R.S. 46:2136(F)(1), the portions of the protective order that award ancillary relief can last up to 18 months and, presumably, for any additional fixed period that the order is extended by the court. Even if an order’s prohibition against abuse, harassment and interference lasts indefinitely, the ancillary relief cannot.1

On the other hand, if a petitioner pleads for other statutory relief in her petition, the child custody order may last longer.2  For example, a DAAA pleading that specifically requests custody under the PSFVRA could result in a custody determination that lasts longer than the protective order.

Although spousal support will terminate when the order expires, the duration of spousal support awards in protective orders is not limited by the rules governing other temporary spousal support. Spousal support awarded in a Domestic Abuse Assistance Act protective order may last longer than an interim spousal support order in a divorce action and survive a reconciliation defense.3

  • 1La. R.S. 46:2136(F)(2)(a).
  • 2See Anders v. Anders, 618 So. 2d 452, 455 (La. App. 4 Cir. 1993). In Anders, the trial court had authority to address child support, temporary alimony, and community debts in the protective order hearing where the protective order petition was dismissed but included a petition for divorce in the same pleading. Id.
  • 3See McInnis v. McInnis, 38,748 (La. App. 2 Cir. 8/18/04), 880 So. 2d 240, 244, see also Stanley v. Nicosia, 09-191, p. 6 (La. App. 5 Cir. 9/29/09), 19 So. 3d 56.

4.6 Extension and Modification

4.6 Extension and Modification aetrahan Thu, 08/24/2023 - 16:12

4.6.1 Extending a TRO

4.6.1 Extending a TRO aetrahan Thu, 08/24/2023 - 16:12

Louisiana law requires the continued protection of victims during emergencies when courts close for reasons such as hurricanes or the COVID-19 pandemic and extends TROs by operation of law. Under La. C.C.P. Art 3604(c)(2), “in the event that the hearing on the rule for the protective order is continued by the court because of a declared state of emergency made in accordance with R.S. 29:724, any temporary restraining order issued in the matter shall remain in force for five days after the date of conclusion of the state of emergency.” The law further requires that pending protective order hearings be reset first upon the court’s re-opening—within 5 days of the emergency’s conclusion. In other words, protective orders take precedence over all other matters after the emergency ends.

Even though orders that would otherwise expire during court closures are now extended by operation of law, their enforceability can still be confusing to victims, defendants, and police. The LPOR addressed this issue by adding a “Notice to Law Enforcement,” which explains the order’s extension in the event of a state of emergency. But many police are trained to look at the original expiration date and overlook the provision regarding its extension. For example, in some instances during the pandemic, law enforcement allowed abusive spouses back into marital homes under the false belief that the victim’s TRO had expired. Be sure to advise clients about the section of the TRO form that contains the “Notice to Law Enforcement” and explain the order’s continued enforceability during a declared state of emergency. Most officers, once directed to the extension provision, will enforce an order accordingly.

4.6.2 Extending a Protective Order

4.6.2 Extending a Protective Order aetrahan Thu, 08/24/2023 - 16:13

Under La. R.S. 46:2136(F), a protective order may be extended beyond 18 months if the petitioner applies for an extension prior to the order’s expiration and the court holds a hearing on the extension request.1  Presumably, the entire protective order may be extended for another 18 months, and the portion prohibiting harassment, abuse, and interference with the person or employment may be extended indefinitely.2  In determining whether to extend an order under the Domestic Abuse Assistance Act, the trial court enjoys “vast” discretion.3  Although nothing in the law requires a showing that the defendant violated the prior protective order, past failure to abide by a protective order is a proper basis for extending an order of protection.4  Once a protective order expires without having been extended, a petitioner probably cannot get another protective order in the absence of new allegations or evidence.5

Some judges may be willing to extend a protective order but unwilling to extend some of the ancillary relief granted in the original order, such as temporary child custody and spousal support. For this reason, a petitioner who requests an extension should be prepared to file other actions to resolve those issues (if the protective order claims were not raised in an already existing divorce or custody action).

  • 1See also Coie v. Coie, 42,077, p. 7 (La. App. 2 Cir. 2/21/07), 948 So. 2d 1276, 1279 (holding the trial court erred by extending terms of expired protective order); Keneker v. Keneker, 579 So. 2d 1083, 1085 (La. App. 5 Cir. 1991) (extending protective orders under the Domestic Abuse Assistance Act must be made prior to expiration of last order).
  • 2See Cave v. Cave, 2020-2040, p. 13 (La. App. 1 Cir. 3/25/21), 2021 WL 1134946, at *26 (stating that the permanent injunctions in the appealed protective order against harassment, contact, and going within 100 yards of protected persons does not expire).
  • 3Francois v. Francois, 06-712, p. 5 (La. App. 3 Cir. 11/2/06), 941 So. 2d 722, 726; see Aguillard v. Aguillard, 2019-757, p. 19 (La. App. 3 Cir. 7/8/20), 304 So. 3d 473, 484 (stating that trial courts are given wide discretion in deciding whether to issue protective orders); Pierce v. Pierce, 2019-0689, p. 7 (La. App. 1 Cir. 2/21/20), 298 So. 3d 902, 908 (holding that the trial court did not abuse its “vast discretion” by not issuing a protective order).
  • 4Francois, 06-712, p. 5, 941 So. 2d at 726; see Cave, 2020-2040, p. 13, 2021 WL 1134946, at *26 (stating that a court may modify non-permanent protective order provisions pursuant to La. R.S. 46:2136(F), in a case in which the rule to extend the protective order alleged violations of provisions of the protective order).
  • 5See Clayton v. Abbitt, 44,427, pp. 1–2 (La. App. 2 Cir. 7/1/09), 16 So. 3d 512, 513–14 (reversing second issuance of protective order where it was not supported by new allegations after expiration of the first order).

4.6.3 Modifying a Protective Order

4.6.3 Modifying a Protective Order aetrahan Thu, 08/24/2023 - 16:19

Either party may move to modify a prior protective order’s substance or duration. But the court may modify an order only after notice to the other party and after a contradictory hearing. Additionally, the statute significantly limits the scope of modifications as follows:

  • Substance. A substantive modification may only do two things: (1) exclude any item included in the prior order; and (2) include any item that could have been included in the prior order.1  These limitations preclude an abuser from using the modification process to seek relief he could not have been awarded as a defendant in the original action, e.g., making requests for child custody or a mutual injunction.
  • Duration. The court may modify the indefinite effective period of an order after notice and a hearing.2  A defendant’s motion to modify the effective period of an order is subject to strict notice requirements set forth in La. R.S. 46:2136(F)(2)(c).

  • 1La. R.S. 46:2136(D).
  • 2La. R.S. 46:2136(D)(2), (F)(2)(c).

4.7 Penalties

4.7 Penalties aetrahan Thu, 08/24/2023 - 16:21

4.7.1 General Principles

4.7.1 General Principles aetrahan Thu, 08/24/2023 - 16:21

Under the Louisiana Criminal Code, it is a crime to violate a protective order.1  A defendant who violates a TRO after it is served or a protective order after it is issued (regardless of service) may be arrested and criminally prosecuted for violation of the order.2  If a TRO is in effect but has not yet been served on the defendant, law enforcement can enforce the terms of the order, but cannot arrest the defendant for a violation.

Civil lawyers can also help clients enforce orders of protection through contempt proceedings in civil court instead of through criminal court. Many victims of intimate partner violence are distrustful of the criminal legal system, or for other reasons do not wish to participate in the prosecution of abusive partners. Moreover, violations of protective order provisions regarding ancillary issues such as child custody, visitation, or support are generally enforced through civil court contempt actions rather than criminal prosecution.

Before 2018, La. R.S. 46:2137 explicitly provided that violation of a temporary restraining order or a protective order under the Domestic Abuse Assistance Act was punishable not just under the criminal statutes but also by contempt in civil court. In 2018, however, the legislature repealed section 2137. Invoking the prohibition against double jeopardy, the legislature relied on United States v. Dixon, in which the Court concluded that a person subject to a protective order cannot be punished by a civil court for the violation of the order and also be punished by a criminal court for the same violation of an order.3

The Legislature’s reliance on Dixon for this change appears to be flawed. It is not at all clear why Dixon would require the 2018 change or prevent a civil court from enforcing its own orders. Dixon, on its face, would not preclude a civil court from punishing a protective order violation through criminal contempt, so long as there is not also a criminal prosecution for the same conduct (violation of a protective order). Double jeopardy would attach only if the same conduct was being punished by both a civil court and a criminal court. That was always true and did not necessitate section 2137’s repeal in 2018.

This unnecessary change in the statute creates new barriers to enforcing protection orders. Because of these changes, victims must now rely much more upon prosecutors to enforce the orders victims have obtained and navigate a more challenging array of court systems, judges, and attorneys for protective order enforcement. Despite the change, other avenues exist to pursue contempt actions in civil court. The Code of Civil Procedure authorizes civil courts to vindicate their authority and enforce their orders through both criminal and civil contempt.4  Attorneys can invoke this general authority to help clients enforce orders of protection. The 2018 legislative change should have no bearing on the authority of civil courts to adjudicate protective order violations through civil contempt.5

  • 1La. R.S. 14:79.
  • 2Id.
  • 3509 U.S. 688 (1993).
  • 4La. C.C.P. arts. 221–227.
  • 5On the distinction between civil and criminal contempt, see Section 4.7.2.

4.7.2 Burden of Proof

4.7.2 Burden of Proof aetrahan Thu, 08/24/2023 - 16:23

Contempt adjudications in civil court are governed by La. C.C.P art. 221, et seq., and punishments for contempt must be explicitly authorized under La. R.S. 13:4611. Given the 2018 repeal of La. R.S. 46:2137, lawyers should be cognizant of the differences between criminal and civil contempt. The question of whether the contempt action is civil or criminal in nature will determine the petitioner’s burden of proof and the remedies that can be imposed.

To determine whether a contempt proceeding in civil court is civil or criminal in nature, one must look to the purpose of the punishment requested or imposed.1  When the primary purpose of a contempt proceeding is to punish past behavior rather than compel future behavior, the proceeding is criminal in nature.2  In other words, when the punishment for contempt does not allow a party the opportunity to avoid the sentence or fine by satisfying certain obligations, it is criminal.3  Even when prosecuted in civil court, criminal contempt proceedings invoke more procedural safeguards by way of notice, opportunity to be heard, the presumption of innocence, the right not to be compelled to testify against oneself, and proof beyond a reasonable doubt.4

In contrast, a civil contempt proceeding is one in which the punishment requested or imposed has a remedial purpose of compelling a party’s compliance with a court order or vindicating the court’s authority.5  Civil contempt must be proven by a preponderance of the evidence.6

Civil contempt can be an especially important tool for addressing protective order violations relating to ancillary provisions like support orders, orders to transfer possession of assets or things, and child custody and visitation provisions. The rules governing contempt are strict, so make sure to carefully review them before initiating an action for contempt.7

  • 1Streiffer v. Deltatech Constr., LLC, 2019-0990, pp. 7–8 (La. App. 4 Cir. 3/25/20), 294 So. 3d 564, 571–72; Joseph v. Entergy, 2005-0263, p. 5 (La. App. 4 Cir. 8/3/05), 918 So. 2d 47, 51.
  • 2See Streiffer, 2019-0990, 294 So. 3d at 572; Hicks v. Feiock, 485 U.S. 624, 635–36 (1988) (citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 443 (1911)).
  • 3See Streiffer, 2019-0990, 294 So. 3d at 572.
  • 4Id.; In re Milkovich, 493 So. 2d 1186, 1189 (La. 1986) (citing Bloom v. Illinois, 391 U.S. 194 (1968)); Joseph, 2005-0263, p. 5, 918 So. 2d at 51 (quoting State ex rel. R.J.S, 493 So. 2d 1199, 1202­03 (La. 1986)).
  • 5Joseph, 2005-0263, p. 5, 918 So. 2d at 51; Streiffer, 2019-0990, 294 So. 3d at 572; Hicks, 485 U.S. at 631–32 (quoting Gompers, 221 U.S. at 441).
  • 6Entergy, 2005-0263, p. 5, 918 So. 2d at 51; Par. of Jefferson v. Lafreniere Park Found., 98-345, p. 6 (La. App. 5 Cir. 9/15/98), 720 So. 2d 359, 364–65.
  • 7See Entergy, 2005-0263, p. 5, 918 So. 2d at 51 (citing Brunet v. Magnolia Quarterboats, Inc., 97-187 (La. App. 5 Cir. 3/11/98), 711 So. 2d 308, 313).

4.7.3 Petitioner’s Conduct

4.7.3 Petitioner’s Conduct aetrahan Thu, 08/24/2023 - 16:29

A petitioner cannot be held in contempt for violation of a protective order unless the order directs her to do something. Generally, protective orders should not do so (apart from visitation exchanges). Although improper, some judges admonish domestic violence victims not to “entice” the defendant to violate an order of protection and warn petitioners that they could be held in contempt for doing so. A petitioner’s actions do not excuse or legally justify an abusive party’s violation of the protective order. And a victim’s alleged invitation or acquiescence to an order’s violation is not a legal defense to the crime of a protective order violation. Nor can a petitioner “violate” an order by contacting an abuser or allowing the abuser into her home, unless the protective order is mutual and the provision prohibiting contact is directed to both parties.1  Orders with mutual provisions should be rare because Louisiana law restricts the circumstances under which mutual orders of protection may be issued.2

On the other hand, if a protective order includes visitation and custody provisions requiring that the petitioner do something (such as bring the child to a visitation exchange) a petitioner can be held in contempt for not following that part of the order. For this reason, lawyers should take care to avoid any unnecessary language in orders that impose duties and obligations on anyone other than the defendant (though sometimes custody and visitation provisions make that impossible). One common tactic used by attorneys representing the abusive partner is to request mutual provisions that the parties not “disparage” one another in front of the children. Though the request may sound reasonable on its face, provisions like these provide abusive former partners with an easy tool for harassment and vindictive litigation. Lawyers should oppose the inclusion of provisions that impose mutual obligations on the parties to the extent feasible and should thoroughly advise clients about their legal obligations to comply with any provision of an order that applies to them.

  • 1Repeated initiated contact by the victim towards the abuser may give rise to a court granting a motion to dismiss filed by the abuser.
  • 2On mutual protective orders, see Section 3.5.

4.8 The Hearing

4.8 The Hearing aetrahan Thu, 08/24/2023 - 16:31

4.8.1 Requirement

4.8.1 Requirement aetrahan Thu, 08/24/2023 - 16:31

A petitioner who is denied a temporary restraining order upon filing a Petition for Protection from Abuse is entitled to a hearing within ten days of the date of service of the petition under La. R.S. 46:2135(D). Whether or not a TRO is granted, the court may not dismiss a petition for a protective order prior to a hearing on the merits.1

  • 1Vallius v. Vallius, 2010-CA-0807, p. 6 (La. App. 4 Cir. 12/8/10), 53 So. 3d 655, 658. But see Young v. Young, 08-0865, p. 6 (La. App. 3 Cir. 12/10/08), 999 So. 2d 351, 355 (holding court may deny motion to modify protective order without hearing if Title 46 petition makes no allegations of domestic abuse).

4.8.2 Incarcerated Defendants

4.8.2 Incarcerated Defendants aetrahan Thu, 08/24/2023 - 16:32

If the defendant has been served, a court may proceed with the hearing even if the defendant is in jail. Many courts erroneously place the burden on the petitioner to file a writ of habeas corpus ad testificandum to ensure the presence of an incarcerated defendant. In Louisiana, a person who is incarcerated has the right to access state and federal courts but that right does not include the right to be physically present at the trial of a civil suit.1  Appellate courts have applied this rule in protective order and child custody cases.2  In a protective order case, the court bears the burden of advancing any costs for a writ of habeas corpus ad testificandum.3

A person who is incarcerated who wishes to secure their presence at a civil trial bears the burden of filing their own writ of habeas corpus ad testificandum.4  Even when they do so, the trial court has the discretion to deny it.5  Reasons for denial of an incarcerated person’s request to be present at a civil hearing can include transportation costs and security risks.6  On the other hand, it is within the trial court’s discretion to take steps to ensure that a defendant who is incarcerated appears in person, and some judges make it a practice to do so. But legally, the petitioner should not bear the responsibility or cost associated with the issuance of the writ unless the incarcerated person is the petitioner in need of protection and is awarded an order for their protection. If a judge sua sponte issues a writ ordering the appearance of an incarcerated defendant, the judge should also advise the defendant of his Fifth Amendment rights because anything the person says in the civil proceeding can be used against them in a related criminal proceeding.

  • 1Falcon v. Falcon, 07491, p. 4 (La. App. 5 Cir. 12/27/07), 975 So. 2d 40, 43; Ardoin v. Bourgeois, 2004-1663, p. 3 (La. App. 3 Cir. 11/2/05), 916 So. 2d 329, 333; Proctor v. Calahan, 95-210, p. 4 (La. App. 3 Cir. 8/30/95), 663 So. 2d 110, 112; Autin v. Voronkova, 2015-0407, p. 10 (La. App. 4 Cir. 10/21/15), 177 So. 3d 1067, 1073; Payne v. Ouachita Par. Tax Assessor Custodian of Records, 49,116, p. 8 (La. App. 2 Cir. 7/9/14), 146 So. 3d 675, 680.
  • 2Autin, 2015-0407, p. 9, 177 So. 3d at 1073 (stating that the burden is on “incarcerated individuals to take steps to secure their presence in court”); Leeper v. Leeper, 44,777, pp. 6–7 (La. App. 2 Cir. 9/23/09), 21 So. 3d. 1006, 1010.
  • 3La. R.S. 46:2134(F).
  • 4Id.; Falcon, 07491, p. 4, 975 So. 2d at 43; Autin, 2015-0407, p. 9, 177 So. 3d at 1073 (stating the burden is on “incarcerated individuals to take steps to secure their presence in court”).
  • 5Leeper, 44,777, 21 So. 3d at 1010–11; Taylor v. Broom, 526 So. 2d 1367, 1368–69 (La. App. 1 Cir. 1988); see also Wells v. Criminal Dist. Court of Orleans Par., 2016-0181, pp. 3–4 (La. App. 4 Cir. 8/24/16), 198 So. 3d 283, 285–86 (stating that determination to allow incarcerated party to personally appear is in discretion of trial court); Payne, 49,116, p. 8, 146 So. 3d at 680 (stating the same); State v. Kee Food, Inc., 2019-0795, p. 7 (La. App. 1 Cir. 5/11/20), 303 So. 3d 672, 677 (stating the same).
  • 6Taylor, 526 So. 2d at 1368–69; see also Wells, 2016-0181, pp. 4–5, 198 So. 3d at 286 (applying a four-factor test for determining whether an incarcerated person’s request to appear in person).

4.8.3 Related Criminal Proceedings

4.8.3 Related Criminal Proceedings aetrahan Fri, 08/25/2023 - 10:28

Continuances. Some judges improperly refuse to conduct hearings on protective order petitions because a relatedcriminal proceeding against the abusive party is pending. The existence of a pending criminal case does not constitute “good grounds” for a continuance.1  A petitioner’s constitutional right to a civil remedy prevails when weighed against a criminal defendant’s Fifth Amendment rights.2

Fifth Amendment. In a civil case, the court may draw an adverse inference against a party who asserts his Fifth Amendment privileges.3

Double Jeopardy. Double jeopardy does not bar criminal prosecution for the same act for which a civil protective order is issued. Nor does it bar criminal prosecution where a civil court has dismissed a petition for a protective order following an evidentiary hearing on the same facts and evidence.4  Double jeopardy in the context of a contempt case is discussed elsewhere.5

  • 1Malmay v. Sentry Ins. Co., 550 So. 2d 366, 369 (La. App. 3 Cir. 1989).
  • 2Id.; Green v. Champion Ins. Co., 577 So. 2d 249, 262 (La. App. 1 Cir. 1991); Barbee v. Pigott, 398 So. 2d 137, 138 (La. App. 3 Cir. 1981); Bank of Com. & Tr. Co. v. Prejean, 262 So. 2d 798, 799 (La. App. 3 Cir. 1972).
  • 3McCann v. McCann, 09-1341 (La. App. 3 Cir. 3/10/10), 33 So. 3d 389, 395 (applying adverse inference in Domestic Abuse Assistance Act case); see also Baxter v. Palmigiano, 425 U.S. 308, 318–19 (1976).
  • 4State v. Carter, 2011-2401, p. 3 (La. App. 1 Cir. 4/3/12), 92 So. 3d 416, 417.
  • 5For further discussion, see Section 4.7.1.

4.9 Costs and Attorney Fees

4.9 Costs and Attorney Fees aetrahan Fri, 08/25/2023 - 10:35

4.9.1 Filing Fees

4.9.1 Filing Fees aetrahan Fri, 08/25/2023 - 10:49

Filing fees may not be charged for civil protective order petitions or the issuance of a protective order.1  These rules obviate the need for protective order petitioners to seek in forma pauperis status. The petition, orders, and process are free for them. In addition, a court may not refuse to allow the filing of a protective order suit because of “unpaid” costs from a prior proceeding.2

  • 1La. R.S. 46:2134(F); La. C.C.P. art. 3603.1.
  • 2See Hawkins v. Jennings, 1997-1291, pp. 7–8 (La. App. 3 Cir. 3/6/98), 709 So. 2d 292, 295; Rochon v. Roemer, 93-CP-2444 (La. 1/7/94), 630 So. 2d 247, 248.

4.9.2 Court Costs

4.9.2 Court Costs aetrahan Fri, 08/25/2023 - 10:53

All court costs and attorney fees must be paid by the abusive party, and a court may not cast a petitioner with court costs unless it determines that the petition was frivolous.1  A petition is not frivolous just because a petitioner failed to meet her burden or prove her case and was denied an order of protection.

In order to cast costs against a petitioner, the petition must be dismissed and the protective order denied, and the court must then make an explicit finding that the petition is frivolous.2  A finding of frivolousness must be based upon testimony or evidence presented during a separate hearing on the issue of frivolousness.3  Even a petitioner who files a frivolous action need not necessarily be cast with costs.4

  • 1La. R.S. 46:2136.1(A)–(B) (updated in 2022 to include that a petitioner cannot be cast with costs for failing to appear for PO hearing); see Lassair ex rel. T.P.J. v. Paul, 2022-0320 (La. App. 4 Cir. 12/14/20), 2022 WL 17813208.
  • 2Vallius v. Vallius, 2010-CA-0807, p. 6 (La. App. 4 Cir. 12/8/10), 53 So. 3d 655, 658; see also Jimenez v. Jimenez, 05-CA-645, p. 4 (La. App. 5 Cir. 1/31/06), 922 So. 2d 672, 674 (reversing trial court order that cast costs to petitioner decided before frivolous provision); Lassair, 2022-0320, 2022 WL 17813208, at *10 (finding that “there must be a finding of frivolousness prior to casting costs against the petitioner; there must be evidence to support that the petition was frivolous to assess costs; and the failure to meet the burden of proof to show a protective order is warranted does not equate with a finding of frivolity”).
  • 3See La. C.C.P. art. 863(F); State v. Joseph, 22-65 (La. App. 5 Cir. 12/21/22), 2022 WL 17826647, at *4.
  • 4La. R.S. 46:2136.1(B).

4.9.3 Attorney Fees

4.9.3 Attorney Fees aetrahan Fri, 08/25/2023 - 11:11

Under the Domestic Abuse Assistance Act, the abusive party shall be made to pay all court costs, attorney fees, and other costs related to the litigation, including, but not limited to, costs for evaluations, expert witnesses, enforcement or modification proceedings, and costs for medical or psychological care of an abused party or child of the abused party (if the care is necessitated by the abuse).1  An abuser may even be required to pay costs and attorney fees if the victim is the non-prevailing party on some aspects of the litigation.2  Moreover, attorney fees should be awarded even when not specifically pled.3

  • 1La. R.S. 46:2136.1(A).
  • 2Cf. Jarrell v. Jarrell, 35,837, p. 6 (La. App. 2 Cir 2/27/02), 811 So. 2d 207, 210 (interpreting a similar provision of the Post-Separation Family Violence Relief Act); Barak v. Saacks, 2021-0756 (La. App. 4 Cir. 10/12/22), 2022 WL 6944282, at *14, writ denied, 2022-01734 (La. 1/11/23) (citing Jarrell).
  • 3Dean v. Burkeen, 2022-563 (La. App. 3 Cir. 3/8/23), 2023 WL 2394754, *14 (affirming trial court’s award of attorney fees under the parallel provision of the Post-Separation Family Violence Relief Act, despite petitioner not having pled for them).

4.9.4 Accessing Criminal History

4.9.4 Accessing Criminal History aetrahan Fri, 08/25/2023 - 11:13

La. R.S. 15:587.8 allows a petitioner, or her lawyer, to request the state criminal history records of a defendant or a witness involved in a civil domestic violence, sexual assault, or human trafficking proceeding. The civil proceedings include Petitions for Protection from Abuse pursuant to the DAAA, PVSAA, and the PSFVRA. The law requires that the petitioner, or the attorney for the victim, submit a written request to the sheriff for the parish in which the petition is filed. The requesting party must include identifying information for the defendant, the petition number, and the court in which the case is pending. Attorneys must also include their Louisiana State Bar Roll Number. The attorney or petitioner is responsible for the criminal history check’s costs. This cost can be a barrier to some clients.

4.10 Miscellaneous Procedural Matters

4.10 Miscellaneous Procedural Matters aetrahan Fri, 08/25/2023 - 11:14

4.10.1 Jurisdiction and Venue

4.10.1 Jurisdiction and Venue aetrahan Fri, 08/25/2023 - 11:14

Jurisdiction is proper in any court empowered to hear family or juvenile matters.1  But where both District Court and Family Court operate concurrently, the Family Court has exclusive subject-matter jurisdiction over all actions brought by a current or former intimate partner under either the Domestic Abuse Assistance Act or the Protection from Dating Violence Act.2

For cases involving abuse of a child, actions may be brought in family court under the DAAA or in juvenile court under La. Ch.C. art. 1564, et seq. The fact that the abuse was originally alleged in a Petition for Protection from Abuse under the DAAA does not prevent a juvenile court from exercising jurisdiction over a Children’s Code petition based on the same allegations of fact, so long as the DAAA case was not adjudicated on the merits and is no longer pending.3

Venue is proper in any of the following parishes:        

  • Parish of household or marital domicile
  • Parish where petitioner or defendant resides
  • Parish where abuse occurs
  • Parish where divorce or annulment action could be brought (domicile of petitioner or defendant or last matrimonial domicile).
  • 1La. R.S. 46:2133(A).
  • 2Wellborn v. 19th Jud. Dist. Ct., 07-1087, p. 10 (La. 1/16/08), 974 So. 2d 1, 7. But see Raborn v. Raborn 2013-1211 (La. App. 1 Cir. 11/13/14), 2014 WL 5878933, at *3–4 (even though family courts are vested with exclusive jurisdiction for DAAA actions, La. R.S. 9:575 explicitly vests district courts with subject matter jurisdiction if those injunctions relate to a parent or grandparent being abused by an adult child or adult grandchild); Succession of Crute v. Crute, 2016-0836, p. 10 (La. App. 1 Cir. 8/30/17), 226 So. 3d 1161, 1170 (district court did not err by consolidating family court divorce action into previously existing succession case, where issues of fact and law related and consolidation done by consent).
  • 3State in Int. of C.D., 2018-0834, p. 8 (La. App. 4 Cir. 12/19/18), 262 So. 3d 929, 933.

4.10.2 Forms

4.10.2 Forms aetrahan Fri, 08/25/2023 - 11:17

The Protective Order Registry provides form Petitions for requesting protective orders under the Domestic Abuse Assistance Act.1  Do not be tied to space limits on the forms. If necessary, add a page so that the Petition will include a sufficiently comprehensive narrative of the abuse you intend to elicit testimony about. Although the forms include a “checklist” to elicit information about types of abuse, e.g., slapping, kicking, etc., lawyers should not rely on that checklist to plead specific acts of abuse.2  Some petitioners will be eligible for protective orders under both the Domestic Abuse Assistance Act and the Post-Separation Family Violence Relief Act. Both statutes may be pleaded together.3

Once an order is granted, the protective order itself must be reduced to a Uniform Abuse Prevention Order form.4  The judge will expect you to complete this form. All necessary relief should be checked and initialed by the judge when signed.

  • 1Louisiana Protective Order Registry (LPOR) forms are developed by the Judicial Administrator’s Office, and the construction given by that agency constitutes persuasive interpretive authority. See McCann v. McCann, 09-1341 (La. App. 3 Cir. 3/10/10), 33 So. 3d 389 (citing Roberts v. Baton Rouge, 108 So. 2d 111 (La. 1958)). In McCann, the Louisiana Court of Appeal for the Third Circuit found that inclusion of the category “other” and “grandparent or grandchild” on the LPOR form neither of which is explicitly named in the statute, supports including step-grandchild within scope of statute’s protection. Id.
  • 2For additional practical advice on drafting petitions for protection, see Section 4.11.1.
  • 3La. R.S.9:368; Louisiana Uniform Abuse Prevention Order Form 19, La. Sup. Ct.
  • 4For these forms, see LPOR Forms, La. Sup. Ct.

4.10.3 Service

4.10.3 Service aetrahan Fri, 08/25/2023 - 11:23

The court should serve the protective order on the defendant at the close of the hearing. The petitioner should not leave the courthouse before being given certified copies of her protective order. The survivor should have three to four copies so that she can keep one at home, one on her person, one at work, and one for school officials if children are involved. Clerks of court must immediately file, process, and issue temporary restraining or protective orders without any charge.1  Furthermore, the law does not allow the court to withhold judgments or certified copies thereof from in forma pauperis litigants.2  If the defendant is not present for the hearing, or if he leaves before receiving a copy, the protective order is still enforceable because the defendant had notice of the hearing and an opportunity to be heard.

  • 1La. R.S. 46:2134(F); La. C.C.P. art. 3603.1(C).
  • 2Carline v. Carline, 93 CA 1505, p. 5 (La. App. 1 Cir. 10/7/94), 644 So. 2d 835, 837.

4.10.4 Filing

4.10.4 Filing aetrahan Fri, 08/25/2023 - 11:24

If a divorce is pending, a protective order application under the Domestic Abuse Assistance Act must be filed in the same court and same case as the divorce.1  Sometimes lawyers representing the party who is abusive will try to forum shop or circumvent cases about their client’s prior abuse by filing actions in a new case number. Lawyers should check to see whether it is necessary to make a motion to consolidate and transfer to a previous case number when this happens.

  • 1See La. R.S. 46:2134(E).

4.11 Practical Considerations

4.11 Practical Considerations aetrahan Fri, 08/25/2023 - 11:28

4.11.1 Drafting the Petition

4.11.1 Drafting the Petition aetrahan Fri, 08/25/2023 - 11:28
  1. Amending a pro se petition
    • If a client has come to you after filing a pro se petition, review it to determine whether it should be amended and re-filed. If amending is necessary, the amended petition will have to be re-served and a new court date will probably be set. To determine whether a petition should be amended, consider whether the petition sufficiently pleads incidents that are essential to establishing a history of abuse and dangerousness. For example, petitions should, at a minimum, include allegations about the most recent incident, the worst incident, incidents resulting in injuries, and incidents involving guns, weapons, strangulation, stalking, or death threats. Petitions should also provide information about the general frequency of abuse. Assume that a judge will exclude testimony about any incident not explicitly alleged (even though the law does not require such exclusion). Additionally, the failure to plead important information incidents like those described above can be later used as impeachment to undermine your client’s credibility in a custody or criminal case – should she raise them later.
  2. Drafting an original petition
    • ​​​​​When drafting a protective order petition, the LPOR forms will prompt you to write about the most recent incident of violence and the history of violence. As stated above, petitions should include allegations about the most recent incident, the worst incident, incidents resulting in injuries, and incidents involving guns, weapons, strangulation, stalking, or death threats. Petitions should also provide information about the general frequency of abuse. You should also usually include any incidents involving current criminal charges.
  3. Special child custody considerations
    • A protective order petitioner may invoke the Post-Separation Family Violence Relief Act by asking that it be applied to the child custody determination.1  Here, the petitioner will need to show a “history of family violence” to secure sole custody.
    • A petitioner requesting temporary child custody in a protective order proceeding may also want to make sure the petition includes information about whether the child has been present during the violence, whether the child has intervened to protect the abused parent, or whether the child has also been abused. Failure to allege incidents involving abuse to the child can be used to impeach the petitioner later, should she allege them in a subsequent child custody proceeding. At the same time, use extreme caution before raising especially complex child abuse claims such as child sex abuse, if there will not be sufficient time to prepare the case and retain experts.
  • 1La. R.S. 9:368.

4.11.2 Drafting the Order

4.11.2 Drafting the Order aetrahan Fri, 08/25/2023 - 11:31
  1. Forms
    • The protective order must be reduced to a Uniform Abuse Prevention Order form.1  The judge will expect you to complete this form. All necessary relief should be checked.         
  2. Petitioner’s Address
    • The Louisiana Protective Order Registry (LPOR) Forms provide a space for the petitioner’s protected residential address. If the protective order includes a specific home address that the defendant must stay away from, the order may not sufficiently protect a petitioner who moves to a new address. Since petitioners often move, the better practice may be to include a provision prohibiting the defendant from going “anywhere the petitioner may reside,” in addition to listing any specific addresses that are safe to list. The same logic applies to stay-away provisions regarding employment. If the current residential address and place of employment is already known to the defendant, the stay-away provision could be drafted to include those specific addresses and anywhere else the petitioner may reside or be employed.
  3. Child Custody
    • ​​​​Visitation and custody provisions should minimize risk to the petitioner and her children. Avoid using joint custody and “reasonable visitation” clauses. “Reasonable visitation” is never appropriate in domestic violence cases. Without specific visitation provisions, an abusive party is likely to weaponize visitation to control the client and to harass her with visitation demands and contempt actions to enforce or expand visitation. There is no reason to assume that a client and her abusive former partner will suddenly agree about what is “reasonable.” Visitation exchanges are also a common setting for conflict and re-assault.
    • Provisions for custody and visitation should be specific, easy to understand, and enforceable. For example, protective orders should explicitly state where and when visitation exchanges can occur and who can be present. They should create explicit but limited exceptions for the abusive parent’s contact with or about the children. Use a supervised visitation center or police station for safe exchanges whenever possible.

  4. Mutual Protective Orders
    • Mutual protective orders should almost never be agreed to. Mutual protective orders, if not factually justified, re-victimize the victim, provide an abuser with another vehicle to harass the victim, and can impair future legal rights for victims. Lawyers often have unrealistic expectations about victims’ normal reactions to abuse. The fact that a victim has engaged in physical resistance or even retaliatory violence against an abusive partner is rarely a justification for a mutual protective order. A protective order should apply only to the person who presents a risk of future harm to the other. A victim who is trying to end the relationship does not fall into that category.2

4.11.3 Negotiating at the Hearing

4.11.3 Negotiating at the Hearing aetrahan Fri, 08/25/2023 - 11:41

In most cases, it makes sense to make a quick initial determination about whether your client’s abusive former partner will contest a protective order. In some cases, they will agree to the order that you have requested. This scenario is less likely in cases that involve ancillary claims for support and/or child custody. To negotiate effectively, you should consult with your client before court about the possibility of settlement and determine what, if any, issues are subject to negotiation. For example, you should know in advance what type of supervised visitation arrangements your client wants so that any negotiated order can include all necessary specifics. In general, follow these rules when negotiating with the other side:

  • Do not negotiate in front of your client.
  • Do not agree to a mutual injunction.
  • Do not agree to an “injunction” that does not go into the LPOR. Do not assume that the order can be converted to a registry order in the future should it become necessary.1
  • Do not agree to custodial arrangements or visitation without advising your client about the effects on future custody litigation under the Post-Separation Family Violence Relief Act.
  • Do not give a pro se defendant legal advice. This means you should not answer questions such as “If I agree to this, does it mean I am admitting to the abuse?” or “How does this affect my guns?” Refer the defendant to the court for questions.
  • Be cautious about offers to “pay” for the client’s cell phone. If the phone remains in the abusive party’s name, he may be able to activate GPS tracking services or monitor her communications.          

Consent agreements must be signed by the court so that the abusive party may be held in contempt for violation.2  Be sure to read the consent agreement in full into the record so that the court can make a clear record that each party has read the order and its provisions fully, understands the order, and agrees to its terms.3

  • 1See generally Branstetter v. Purohit, 2006-1435, pp. 4–6 (La. App. 4 Cir. 5/2/07), 958 So. 2d 740, 743–44 (holding that trial court erred when it converted a non-registry injunction entered by consent into a registry injunction without notice in a subsequent contempt proceeding).
  • 2See La. R.S. 46:2136.
  • 3See McInnis v. McInnis, 38,748-CA (La. App. 2 Cir. 8/14/04), 880 So. 2d 240, 244 (citing Alogdon v. Guertin, 97-CA-0235 (La. App. 4 Cir. 10/1/97), 701 So. 2d 480) (finding consent judgment read into record becomes legal judgment even if not reduced to writing).

5 Ancillary Relief in Protective Order Cases

5 Ancillary Relief in Protective Order Cases aetrahan Fri, 08/25/2023 - 11:43

5.1 Child Custody

5.1 Child Custody aetrahan Fri, 08/25/2023 - 11:43

5.1.1 General Principles

5.1.1 General Principles aetrahan Fri, 08/25/2023 - 11:43

Most parents in need of a protective order need their orders to address custody and visitation if they share children with the abusive former partner. When requesting custody in a protective order petition, there are a variety of issues to take into consideration, including whether to invoke the Post-Separation Family Violence Relief Act (the law governing child custody determinations in family violence cases).

One of the first considerations when deciding whether to request child custody is whether your client wishes to relocate and whether the jurisdiction is appropriate. Once a Louisiana court assumes jurisdiction over child custody issues, it can be very difficult to move the case to another state or venue. If your client has left or intends to leave the state, she may be stuck litigating child custody issues in Louisiana for years.1

Additionally, lawyers should carefully consider the impact of a protective order hearing on future custody litigation before filing and should be prepared to litigate the hearing as if it were determinative for permanent custody. This means that lawyers should also carefully consider the impact of consent judgments on temporary custody on future custody litigation. A judge may be reluctant to impose Post-Separation Family Violence Relief Act visitation restrictions in a case where a petitioner has previously consented to less restrictive visitation in protective order proceedings.

  • 1For more detailed discussion of these jurisdiction issues and how to advise your client about custody and relocation, see Section 8.12. For additional discussion of interstate child custody issues, see Section 4.10 and Section 4.11 of this manual’s chapter on family law.

5.1.2 Duration of the Custody Order

5.1.2 Duration of the Custody Order aetrahan Fri, 08/25/2023 - 11:48

La. R.S. 46:2135–2136 authorize the court to award “temporary” custody at the protective order hearing. The “temporary” custody award in a section 2136 protective order may last only for the duration of the protective order or until modified (whichever occurs first). However, if the petition stated another basis for relief, such as the PSFVRA, the child custody order may potentially last longer.1  Arguably, a protective order pleading that requests relief under the Post-Separation Family Violence Relief Act is not subject to the time limits of the DAAA and could result in a custody order that lasts longer than the protective order. The argument in support of this position is that once the court has adjudicated and found a history of family violence, the perpetrator of abuse cannot thereafter exercise custody or jurisdiction that is not in compliance with the PSFVRA.

  • 1See Anders v. Anders, 618 So. 2d 452, 454–55 (La. App. 4 Cir. 1993) (holding that when denying a protective order the court still had authority to grant relief under the divorce statutes also pled in same pleading).

5.1.3 Use of PSFVRA

5.1.3 Use of PSFVRA aetrahan Fri, 08/25/2023 - 11:49

One key consideration when filing for an order of protection is whether to invoke the PSFRVA.1  The PSFVRA provides a variety of protections to victims and their children that are not routinely awarded in protective order cases. For example, if a petitioner meets her burden under the PSFVRA, the court may award a perpetrator of abuse only supervised visitation, except under extremely limited circumstances that can rarely be met.2

On the other hand, a petitioner who invokes the PSFVRA in a protective order proceeding has an additional burden. She must prove not just that a protective order is necessary to end abuse, but also that the defendant has a “history of family violence” as defined under that Act. So, while one act of family violence could be sufficient for issuance of a protective order, it may be insufficient to prove a “history of family violence” under the PSFVRA for sole custody. One act of domestic abuse constitutes a “history of family violence” under the PSFVRA only if it results in serious bodily injury.3

Because a finding on whether the defendant has a “history of perpetrating family violence” may be binding on a permanent custody determination,4  lawyers should consider whether they can be prepared to litigate that issue fully within the short time frame demanded by the protective order statute.

Importantly, at the conclusion of a protective order hearing, if the court finds that the Defendant has committed one or more acts of family violence, or one act of family violence resulting in serious bodily injury, it appears that the court must apply the Post Separation Family Violence Relief Act restrictions to its custody determination. That is true because La. C.C. art. 134(B) now requires the PSFVRA protections be applied to any child custody determination involving a history of family violence, whether pled or not. It is not yet clear how this obligation interacts with the fact that DAAA findings are not res judicata for purposes of future proceedings.5

  • 1La. R.S. 9:368.
  • 2La. R.S. 9:364.
  • 3Id.
  • 4For discussion of whether such determinations are binding, see Section 5.1.5.
  • 5La. R.S. 46:2134(E).

5.1.4 Emergency Ex Parte Custody

5.1.4 Emergency Ex Parte Custody aetrahan Fri, 08/25/2023 - 11:52

Requests for emergency ex parte custody under the DAAA do not have to comply with the La. C.C.P. art. 3945 rules for requesting ex parte custody. The provisions of La. C.C.P. art. 3945 on ex parte temporary custody orders do not apply to verified petitions alleging applicability of a family violence statute.1

  • 1La. C.C.P. art. 3945(G).

5.1.5 Effect on Later Proceedings

5.1.5 Effect on Later Proceedings aetrahan Fri, 08/25/2023 - 11:53

Findings and rulings made in Domestic Abuse Assistance Act protective orders are not res judicata in any subsequent proceeding.1  This means that the family violence must be re-litigated in subsequent proceedings, most notably a subsequent custody suit seeking sole custody under PSFVRA—if it was not pled in the protective order petition. Therefore, you should be prepared to prove incidents of family violence again. On the other hand, if the protective order finding included a finding of a “history of family violence” under the PSFVRA, that finding is made under a different statute and could be binding in that suit and future litigation.2

If the defendant does not appear at the subsequent hearing for permanent orders, you may ask the court to take judicial notice of the petitioner’s previous testimony. Some courts will take judicial notice of the testimony, and the petitioner will not be required to testify again. It is possible this might leave the judgment more subject to later challenge, so lawyers should weigh the costs and benefits. If the court has taken judicial notice of previous testimony and there is a subsequent appeal, it is essential that the victim’s attorney designate the previous testimony for inclusion in the appellate record. If it does not appear in the record on appeal, it cannot be considered.

Even though most findings in a “stand alone” Title 46 protective order proceedings are not binding in future litigation, as a practical matter, judges are unlikely to make subsequent rulings significantly inconsistent with their own prior factual determinations. For this reason, lawyers should treat Title 46 custody determinations as a critical juncture for preserving a client’s long-term custody rights and goals.

A temporary custody provision in a consent judgment will almost always have significant implications for future custody litigation. For example, a judge may be reluctant to impose PSFVRA visitation restrictions in a case where a petitioner has previously consented to less restrictive visitation in the protective order case. Often survivors seeking orders of protection make concessions regarding child custody that they later regret, in part because of the perception it creates that the abusive party presents little risk to the children. Lawyers should be careful to fully advise clients about the implications of consent orders so that they can make fully informed decisions.

  • 1La. R.S. 46:2134(E).
  • 2For further discussion of the potential length of a temporary custody determination, see Section 5.1.2.

5.1.6 Evidentiary Considerations

5.1.6 Evidentiary Considerations aetrahan Fri, 08/25/2023 - 11:54

The presentation of evidence regarding child custody should establish the history of abuse, the child’s exposure to a domestic violence perpetrator’s conduct, and effects on the child. It should also establish key aspects of any care-giving history that establishes your client as the primary caregiver.1  In general, lawyers should plan to present a case that is robust enough to protect a client’s long-term custody interests, but that still remains focused on the abuse and avoids the perception that the protective order request is a veiled attempt to obtain custody.

  • 1For further discussion of how to present a custody case in the context of domestic violence, see Section 8.

5.2 Support

5.2 Support aetrahan Fri, 08/25/2023 - 11:55

5.2.1 General Principles

5.2.1 General Principles aetrahan Fri, 08/25/2023 - 11:55

Many people subjected to abuse by an intimate partner cannot meaningfully benefit from a protective order if the litigation does not address their immediate financial and housing needs. For this reason, attorneys should, when applicable, always plan to address child support, spousal support, and housing at the hearing on a protective order. However, once a petitioner has requested child or spousal support1  in her petition for protection from abuse, she must be prepared to prove those claims, in addition to proving the abuse. The accelerated timeline for a protective-order case will require that evidence gathering proceed as quickly as possible, to ensure appropriate evidentiary support.

  • 1A request for spousal support pursuant to a DAAA petition does not require the filing of a petition for divorce. In many cases a spousal support obligation may be longer under the DAAA than it would be pursuant to a divorce petition.

5.2.2 Safety Considerations

5.2.2 Safety Considerations aetrahan Fri, 08/25/2023 - 11:56

One of the most frequent causes of vindictive litigation by a former abusive partner is a survivor’s request for child support. If the abusive party is not working, the child support award will often be around $100 a month or sometimes less, depending on the number of children. It is important that lawyers help clients weigh the costs and benefits of pursuing support by discussing the possibility of increased litigation and harassment, as well as the likelihood of being paid the support owed, before filing a child support claim.

Generally, lawyers should aggressively pursue support claims for survivors, but should not take for granted that the client feels safe doing so or that the benefits outweigh the risks. Some clients will decline to pursue support for reasons that include safety concerns, the belief that a former abusive partner is more likely to leave her alone if not tied to her through support obligations, or the desire to avoid continued dependence. So, although financial security is often key to victim stability, the decision to pursue support can be complicated.

5.2.3 Proving Income

5.2.3 Proving Income aetrahan Fri, 08/25/2023 - 11:56

For both child and spousal support, the petitioner must prove both her income and the defendant’s income.

  • Proving the petitioner’s income. Plan for your client to testify about her income and employment and to introduce evidence of that income in the form of wage statements, tax returns, etc. If your client is unemployed, be prepared to argue why income should not be imputed to her. For example, if she lost her job or suffered employment instability because of the abuser’s harassment or abuse, you can argue that the abusive party should be estopped from benefiting from his own bad acts. Similarly, if the abusive party did not allow the victim to work when they were together, attorneys should argue against income imputation on grounds of both equity and fairness. And, by statute, if she is disabled or the primary caregiver of a child under the age of 5, income should not be imputed.1
  • Proving the defendant’s income. The first TRO issued by the court should include an order that requires the defendant to bring proof of his income to the hearing.2  But lawyers should prepare to prove the abuser’s income without the proof that he has been ordered to produce because the defendant may fail to bring records to court, hide or lie about income, or not appear at all. Some clients will have access to old tax returns or wage statements that can prove the defendant’s income. Where you suspect that the defendant is concealing or underreporting income, La. R.S. 9:315.1.1 provides guidance on the types of evidence that can be used to establish the defendant’s actual income.3
  • Self-employment. In some cases, the defendant’s income is difficult to prove, particularly for those who are self-employed.4  Some abusers will conceal income by “banking” with relatives. In those cases, refer again to La. R.S. 9:315.1.1, and plan to introduce evidence of the parties’ expenses and standard of living and the income those expenses would require.5  In some cases, abusive parties report expenses on their income and expense worksheets that exceed the earnings they claim, creating impeachment opportunities for trial. Even social media postings can provide useful evidence that the abusive party is living beyond the means they claim in court.
  • Underemployment. It is not unusual for abusive partners to punish their victims and avoid support obligations by becoming voluntarily under-employed after separation.6  For purposes of calculating support, the issue of whether a party is voluntarily under-employed is a question of the obligor-party’s good faith.7  The underemployment must result from no fault or neglect of the party.8  Any action that a defendant takes to reduce his income after separation or support orders should be examined. For example, if the defendant leaves a job to return to school, or stops working overtime after years of doing so regularly, you may be able to prove under-employment.
  • 1La. R.S. 9:315.11(A).
  • 2Question 17 on LPOR Form 1 specifically allows a court to issue this order. See Order of Protection: Temporary Restraining Order, La. Sup. Ct.
  • 3See also Brossett v. Brossett, 49,883, p. 6 (La. App. 2 Cir. 6/24/15), 195 So. 3d 471, 476. For additional discussion of imputed income, see Section 6.5 of the chapter on family law.
  • 4On self-employment income for purposes of child support, see Section 6.4.2 of the chapter on family law.
  • 5La. R.S. 9:315.1.1(A)(3).
  • 6For additional discussion of underemployment, see Section 6.5 of the chapter on family law.
  • 7Romans v. Romans, 01-587, p. 3 (La. App. 3 Cir. 10/31/01), 799 So. 2d 810, 812; see also Dugué v. Dugué, 20-CA-292, p. 8 (La. App. 5 Cir. 03/24/2021), 316 So. 3d 170, 176; Martin v. Martin, 2016-CA-0324, pp. 5–6 (La. App. 4 Cir. 11/16/2016), 204 So. 3d 717, 721; In re Wyre, 2013-1347 (La. App. 1 Cir. 12/10/14), 2014 WL 6977844.
  • 8La. R.S. 9:315(C)(5)(b).

5.2.4 Proving Ability to Pay

5.2.4 Proving Ability to Pay aetrahan Fri, 08/25/2023 - 14:24

For spousal support claims, the petitioner must also show need and the other spouse’s ability to pay.

Need. An award of interim spousal support requires that the requesting spouse demonstrate need.1  Need can be shown by proving that the petitioner lacks sufficient income to maintain the standard of living that she enjoyed while residing with her spouse.2  To prove a support claim, then, the client must demonstrate her need through evidence of her income, her expenses, and her previous standard of living. “Standard of living” evidence can include testimony about the number of bedrooms in the marital home or the frequency with which the parties dined out as well as other information about the parties’ lifestyle. But if an abusive former partner intentionally deprived a dependent spouse of basic needs or a comfortable standard of living during the marriage, he cannot avoid a support obligation by arguing that she must continue living similarly.3  In most jurisdictions, the parties must prepare and submit an income and expense form in advance of court to assist the court’s determination on the petitioner’s need.

Ability to pay. The only limit on a claimant’s needs is the obligor party’s ability to pay.4  An obligor spouse has the ability to pay when his income exceeds his expenses and child support obligations.5  When the obligor does not have the ability to pay an award equal to the other partner’s needs, “interim spousal support should be fixed at a sum that will as nearly as possible be just and fair to all parties involved.”6

Support claims against defendants with limited income or resources. Do not decline to request support from an abusive defendant simply because he earns low wages. If your client’s household resources are even lower, she may still be entitled to support. The law governing temporary spousal support aims to put both parties as close as possible to the standard of living they enjoyed before the separation.7  In cases where neither party has substantial income or assets, it is useful to examine the parties’ relative financial positions. Do this by comparing their respective incomes to the federal poverty level, and then calculate how far above or below the poverty level each person’s income puts them. The court can make an award that is just and fair between two parties by awarding support in an amount that puts them at equal footing above or below the poverty level. This analysis can be particularly compelling in cases where the claimant spouse is a custodial parent whose standard of living will affect the child.

Fault. Fault is not a defense to temporary spousal support.8  Abusive partners will sometimes claim infidelity as “fault” grounds to avoid paying support.9

Reconciliation. Reconciliation applies only to actions brought in divorce. It has no effect on child support claims brought between two people who have never been married or spousal support claims between who have not filed for divorce.10  Thus, in a protective order case where support is awarded, a subsequent reconciliation has no bearing on whether support is owed for the period of reconciliation.

  • 1For additional discussion, see Section 7 of the chapter on family law.
  • 2Robertson v. Robertson, 10-CA-926 (La. App. 5 Cir. 4/26/11), 64 So. 3d 354 (denying husband’s request for spousal support where his request had no merit because he did not submit proof of expenses, that he was living in his father’s home without cost, and failed to prove he could not find work); Carmouche v. Carmouche, 03-CA-1106 (La. App. 5 Cir. 2/23/04), 869 So. 2d 224, 227 (upholding interim spousal support where claimant’s expenses exceeded her income even on “nominal, bare subsistence living expenses”).
  • 3Brown v. Brown, 44-989-CA, p. 9 (La. App. 2 Cir. 1/27/10), 31 So. 3d 532, 538 (awarding support after finding that living conditions during the marriage were deplorable but that those living conditions alone are not indicative of the standard of living during the marriage).
  • 4Kirkpatrick v. Kirkpatrick, 41,851-CA, p. 3 (La. App. 2 Cir. 1/24/07), 948 So. 2d 390, 393; Hitchens v. Hitchens, 38,339-CA, p. 2 (La. App. 2 Cir. 5/12/04), 873 So. 2d 882, 884. For additional discussion, see Section 7 of the chapter on family law.
  • 5Lambert v. Lambert, 2006 2399, pp. 13–14 (La. App. 1 Cir. 3/23/07), 960 So. 2d 921, 930; Rodriguez v. Rodriguez, 2020-0171, p. 7 (La. App. 1 Cir. 11/6/20), 315 So. 3d 913, 919.
  • 6Derouen v. Derouen, 04-1137, p. 5 (La. App. 3 Cir. 02/02/05), 893 So. 2d 981, 985; see Charrier v. Charrier, CA 19-917, pp. 11–12 (La. App. 3 Cir. 06/03/2020), 2020 WL 2934636, at *5.
  • 7Although the term “temporary support” is used here, it closely resembles interim support in that it is designed to maintain the status quo “without unnecessary economic dislocation.” Short v. Short, 09-639, p. 9 (La. App. 5 Cir. 3/23/10), 33 So. 3d 988, 994. Interim support is a legal term of art specific to a support claim raised in a proceeding for divorce. See La. C.C. art. 111.
  • 8For additional discussion, see Section 7.2 of the chapter on family law.
  • 9La. C.C. art. 113.
  • 10See Stanley v. Nicosia, 09-191, p. 6 (La. App. 5 Cir. 9/29/09), 19 So. 3d 56, 59 (citing McInnis v. McInnis, 38,748 (La. App. 2 Cir. 8/18/04), 880 So. 2d 240) (holding in a protective order case between two unmarried parties that subsequent reconciliation had “no bearing” on whether child support was owed for the period of reconciliation).

5.3 Housing

5.3 Housing aetrahan Fri, 08/25/2023 - 14:36

5.3.1 Safety Considerations

5.3.1 Safety Considerations aetrahan Fri, 08/25/2023 - 14:36

A victim’s housing stability can be critical to her safety and stability while she gains independence from an abusive partner. Housing stability can also be important for future custody litigation. In protective order cases, lawyers should advise clients that they have the option of either requesting exclusive possession of shared residence or requesting that the abusive partner pay costs associated with relocation or alternative housing.

In some cases, even if the court is willing to evict an abuser as part of the protective order relief, some clients do not feel safe returning to live in a previously shared residence. Lawyers should help clients consider safety issues associated with returning to a residence where the abusive former partner can easily find her, break in, or monitor her activities. When clients do not want to return to a previously shared residence, the pleadings should include specific demands that the perpetrator pay costs alternative housing costs such as rent, deposits, moving expenses, and utility transfer costs.

5.3.2 Homeowners

5.3.2 Homeowners aetrahan Fri, 08/25/2023 - 14:37

When making a request for temporary housing, make sure you are clear about homeownership issues and how they affect your request for relief. The Domestic Abuse Assistance Act specifies the relief available to victims when the abusive partner is a sole homeowner. In that case, the abusive partner can be evicted and possession awarded to the petitioner, but only if she is the custodian of shared children.1  At least one appellate court, however, has affirmed an award of possession to a petitioner when the abusive party was the sole owner and the parties did not have children in common.2

  • 1La. R.S. 46:2135(A), 2136(A)(2).
  • 2Beard v. Beard, 05-CA-302, pp. 6­–7 (La. App. 5 Cir. 11/29/05), 917 So. 2d 1160, 1163–64.

5.3.3 Renters

5.3.3 Renters aetrahan Fri, 08/25/2023 - 14:38

Louisiana law provides housing protections for renters who are victims of domestic abuse1  by granting them protection from being refused a lease, protection from being evicted for reasons related to their abuse, and the option of early lease termination necessitated by the abuse. Domestic violence victims cannot be forced out of their homes because of a domestic violence incident or a resulting police response. These legal protections, however, are not automatic and do not protect all tenants. Specifically, the law does not cover single residences and applies only to tenants living in a residential complex with more than 6 units.2  The protections available to eligible tenants include:

  • The law does not allow a landlord to refuse to enter into a lease or renew a lease because a lessee or a household member has been a victim of abuse.3  The client must provide documentation to the lessor in order to receive protection under the law. Failure to provide the documentation will negate the legal protections. Acceptable documentation includes an Order of Protection or a Certification of Domestic Abuse Form signed under oath by an employee of a domestic violence shelter.4
  • A landlord may not evict a victim of abuse after a domestic violence incident on the premises. To avoid eviction, the tenant must provide documentation of the domestic violence (see above) prior to a final judgment of eviction (the protection still applies if the eviction has been initiated but is not yet final). It is important to note that after a second incident at the same residence, the landlord may seek an eviction. It is important, therefore, for lawyers to advise clients about this risk if they have successfully avoided an eviction in the past under this provision.
  • Tenants may request the early termination of their lease within 30 days of a domestic violence incident.5  The tenant must send written notice to the landlord requesting the early termination, provide documentation of the incident, and agree not to let the abusive party back in the residence. The lessor is then obligated to let the tenant out of the lease without financial responsibility for the remainder of the lease.
  • 1La. R.S. 9:3261.1.
  • 2There is an exception for residential complexes that are 10 or fewer units and one of the units is occupied by the owner of the property.
  • 3La. R.S. 9:3261.1(D)1.
  • 4La. R.S. 9:3261.1(B)(6)–(7).
  • 5La. R.S. 9:3261.1(E)–(F).

6 Other Types of Protective Orders and Injunctions

6 Other Types of Protective Orders and Injunctions aetrahan Fri, 08/25/2023 - 14:48

6.1 PSFVRA Injunction

6.1 PSFVRA Injunction aetrahan Fri, 08/25/2023 - 14:48

6.1.1 General Principles

6.1.1 General Principles aetrahan Fri, 08/25/2023 - 14:48

Petitioners can seek protective orders under this statute if the parties have a child in common and the petitioner proves family violence. The statute requires the court to include an injunction in favor of the abused party or child in all “family violence cases.”1  The terms of those injunctions are set out by La. R.S. 9:362(4) and include more restrictive provisions on contact than many injunctions entered under either the Protection from Family Violence Act statutes (title 46) or Injunctions Ancillary to Divorce. And violation of these injunctions mandate termination of court-ordered visitation.2

For this reason, attorneys should advise clients about their right to seek a permanent injunction under this Act as part of their divorce or custody judgment.

  • 1La. R.S. 9:366.
  • 2La. R.S. 9:366(B).

6.1.2 Available Relief

6.1.2 Available Relief aetrahan Fri, 08/25/2023 - 14:49

An injunction under this statute includes the following relief, as defined by La. R.S. 9:362(5):

  • Prohibiting contact with abused parent or children except for contact expressly allowed for specific and limited purposes relating to the welfare of the children.
  • Barring abuser from going within 50 yards of home, school, employment, or person of abused parent and children.
  • Barring abuser from going within 50 feet of automobile of abused parent and children.

6.1.3 Duration

6.1.3 Duration aetrahan Fri, 08/25/2023 - 14:49

A permanent injunction does not expire. However, a pre-divorce injunction may be extinguished if it is not specifically mentioned in the divorce judgment.1    

Petitioners generally do not request a temporary restraining order under the PSFVRA but use the statute to seek a permanent injunction in either a divorce judgment or final custody order. If emergency circumstances require an immediate TRO, most petitioners will seek one under the Domestic Abuse Assistance Act. But even though the Post-Separation Family Violence Relief Act does not explicitly address temporary restraining orders or preliminary injunctions, a PSFVRA TRO would be allowable and governed by the civil injunction rules in the Louisiana Code of Civil Procedure.2  La. C.C.P. art. 3610 expressly waives bond for all TROs and preliminary or permanent injunctions seeking protection from domestic abuse, dating violence, stalking, or sexual assault.

  • 1Steele v. Steele, 591 So. 2d 810, 812 (La. App. 3 Cir. 1991). This argument should not apply to PSFVRA cases, but attorneys should be cautious and request an injunction in the divorce if possible.
  • 2A plaintiff eligible for relief under La. R.S. 9:361–369 should also be eligible for relief under La. R.S. 46:2131–2143. See La. R.S. 46:2139.

6.1.4 Penalties for Violation

6.1.4 Penalties for Violation aetrahan Fri, 08/25/2023 - 14:51

One of the most important and overlooked provisions in the PSFVRA is that any violation of the injunction “shall result in a termination of all court ordered child visitation.”1  This strong enforcement provision is available to petitioners exclusively under this Act.

More generally, violation of a PSFVRA injunction can be punished through contempt in civil court or criminal prosecution under La. R.S. 14:79. Contempt is punishable by up to six months in jail and a fine of up to $500.2  The defendant may be arrested and criminally prosecuted for violation of the TRO after service or violation of the preliminary or permanent injunction after issuance.3

  • 1La. R.S. 9:366(B). However, many trial judges will refuse to apply this law to terminate visitation.
  • 2La. R.S. 13:4611(b).
  • 3La. R.S. 14:79. For further discussion of contempt proceedings and double jeopardy, see Section 4.7.1.

6.1.5 Memorializing the Order

6.1.5 Memorializing the Order aetrahan Fri, 08/25/2023 - 14:52

These injunctions, if granted at divorce, should be included in the divorce judgment and must also be reduced to a Uniform Abuse Prevention Order form for submission to the LPOR.

6.2 Injunction against Abuse Ancillary to Divorce

6.2 Injunction against Abuse Ancillary to Divorce aetrahan Fri, 08/25/2023 - 14:52

6.2.1 General Principles

6.2.1 General Principles aetrahan Fri, 08/25/2023 - 14:53

Injunctions under La. R.S. 9:372 are available to victims of abuse who are married to their abusers and are seeking divorce. The injunctions available under this provision are more generic and less specific than those available through other statutes and prohibit a “spouse from physically or sexually abusing the other spouse or a child of either of the parties.” The text of the statute includes no language about stay-away provisions or restricting other forms of conduct that are not already illegal.

6.2.2 Duration

6.2.2 Duration aetrahan Fri, 08/25/2023 - 14:53

These orders can be permanent, but must be issued prior to the divorce; additionally, if an injunction is not included in the divorce, prior injunctions issued under this statute may expire upon divorce.1  These injunctions, if granted at divorce, should be included in the divorce judgment and must also be reduced to a Uniform Abuse Prevention Order form for submission to the LPOR.

  • 1Lawrence v. Lawrence, 02-1066 (La. App. 3 Cir. 3/5/03), 839 So. 2d 1201, 1203 (finding that an injunction may not be issued three years after divorce); Steele v. Steele, 591 So. 2d 810, 812 (La. App. 3 Cir. 1991) (finding that a pre-divorce injunction under predecessor statute expired upon divorce when not expressly continued in divorce judgment).

6.2.3 Penalties for Violation

6.2.3 Penalties for Violation aetrahan Fri, 08/25/2023 - 14:54

These injunctions, like all injunctions prohibiting abuse, are entered into the Louisiana Protective Order Registry and are a crime to violate.1  So, although these orders appear to only prohibit behavior that is already criminal, they do create additional criminal penalties for enforcement. In other words, a defendant who violates one of these injunctions could be charged with violation of the order and with any underlying crime committed during the violation.

  • 1La. R.S. 14:79.

6.3 Civil Injunction

6.3 Civil Injunction aetrahan Fri, 08/25/2023 - 14:54

6.3.1 General Principles

6.3.1 General Principles aetrahan Fri, 08/25/2023 - 14:55

Injunctions under La. C.C.P. art. 3601 are available to any party seeking protection from abuse. There does not appear to be a benefit of filing for relief under this code provision, which lacks the more comprehensive remedies available under the DAAA and the PSFVRA. In the past, Article 3601 was the only relief available to adult victims who were being harassed or stalked by someone with whom they were never romantically involved. Those cases now fall under the Protection from Stalking Act.1  Under Article 3601, the petitioner must show a likelihood of irreparable injury, and bond is waived for any injunction seeking protection from stalking, domestic abuse, dating violence, or sexual assault.2

  • 1La. R.S. 9:371–374.
  • 2La. C.C.P. arts. 3603(A)(1), 3610.

6.3.2 Duration

6.3.2 Duration aetrahan Fri, 08/25/2023 - 14:55

A temporary restraining order, if issued against a party other than a spouse, can last for no longer than 10 days, but may be extended in 10-day intervals.1  The temporary restraining order, if issued against a spouse in a divorce suit to prohibit harm, lasts until the preliminary injunction hearing.2  The preliminary injunction lasts until the trial on the permanent injunction. A permanent injunction against abuse does not expire. It is for life unless modified.

  • 1La. C.C.P. arts. 3603(A)(1), 3610.
  • 2La. C.C.P. art. 3604(B).

6.3.4 Penalties for Violation

6.3.4 Penalties for Violation aetrahan Fri, 08/25/2023 - 14:56

Penalties for violation of an Article 3601 injunction include contempt. Contempt is punishable by up to six months in jail and a fine up to $1,000.1  The defendant may be arrested and criminally prosecuted under La. R.S. 14:79 for violation of the TRO after being served or violation of the preliminary or permanent injunction after it is issued.

  • 1La. R.S. 13:4611(b).

6.4 Contempt Motions

6.4 Contempt Motions aetrahan Fri, 08/25/2023 - 14:57

To bring a contempt motion for violation of a protective order or TRO, draft a contempt motion or rule to show cause that clearly states the notice that the party subject to the order had of the injunction, the specific terms of the injunction that have been violated, and all the facts or conduct alleged to constitute contempt.1  A person is bound by an injunction from the time that they have notice regardless of whether they have been served with the injunction.2  A certified copy of the contempt motion and rule to show cause must be served on the party alleged to be in contempt, in the same manner as a subpoena, at least 48 hours before the hearing.3  Generally, this means personal or domiciliary service on the abuser.4  Be prepared to prove the contempt without testimony from the abuser since he may invoke the Fifth Amendment.

The court must rule on a domestic violence victim’s motion for contempt for violation of a protective order or injunction. It can’t refuse to schedule the motion or decide the motion without a hearing.5

  • 1La. C.C.P. art. 225.
  • 2Dauphine v. Carencro High Sch., 2002-2005, p. 10 (La. 4/21/03), 843 So. 2d 1096, 1104 n.6.
  • 3La. C.C.P. art. 225.
  • 4La. C.C.P. art. 1355.
  • 5Crowley v. Crowley, 96-CC-2413 (La. 10/11/96), 680 So. 2d 661 (ordering the district judge to hear and rule on a domestic violence victim’s contempt motion).

6.5 Interstate Issues

6.5 Interstate Issues aetrahan Mon, 08/28/2023 - 09:25

The Violence against Women Act requires that states give full faith and credit to orders of protection entered in other states.1  Safety considerations should guide the decision about whether to register a foreign order.

The police may enforce foreign protective orders that have not been made executory in Louisiana and can arrest for violation of a foreign protective order.2  La. R.S. 13:4248 provides that a foreign protective order may be made executory in Louisiana by filing an ex parte petition.3  The petitioner’s address may remain confidential with the court.4

The petitioner can keep her address confidential.5  However, the party subject to the protective order will be sent notice of the filing of the petition to register the order, which may provide the abusive party information about the victim’s new state or parish of residence.

The petitioner can file the ex parte petition by mail or through counsel. There is no need for the petitioner to travel to Louisiana to file the ex parte petition. She should not be charged any filing fees for the petition since it involves a protective order. The advantages to an executory Louisiana order are that police will be more likely to enforce the order and can verify the order through the Louisiana Protective Order Registry. The police may be reluctant to enforce a foreign protective order if it does not indicate on its face that the abusive party was served.6  In addition, once the order becomes executory in Louisiana, a defendant is subject to contempt proceedings in a Louisiana civil court. The victim’s refuge state should have jurisdiction to enter a prohibitory injunction even if personal jurisdiction over the defendant does not exist in the refuge state.7 A Louisiana court should have personal jurisdiction over a non-resident abuser for any type of injunction, affirmative or prohibitory, if the non-resident has minimum contacts with Louisiana, e.g., making threatening phone calls or sending letters to victim in Louisiana.8

It is a federal crime to cross a state line to commit domestic violence or to violate a protective order.9  The Federal Bureau of Investigation and United States Attorneys’ Office should be contacted if an interstate violation of a protective order occurs.

  • 118 U.S.C. § 2265. A child custody provision within a protective order must comply with the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act in order to be entitled to full faith and credit. However, an order prohibiting the abuser from going near a child is not a custody order and is entitled to full faith and credit under the Violence against Women Act.
  • 2La. R.S.14:79(A)(2).
  • 3See Louisiana Protective Order Registry Form E, La. Sup. Ct.
  • 4La. R.S. 13:4248(A).
  • 5Id.
  • 6La. R.S. 14:79(A)(1)(a). To arrest for a violation, a party must have been served with a TRO. But a protective order, if issued after a hearing for which the defendant had notice, need not be served. Id. For this reason, law enforcement will have to examine a foreign order for indications that either a TRO was served, or that the defendant had notice of the protective order hearing.
  • 7See, e.g., Spencer v. Spencer, 191 S.W.3d 14 (Ky. Ct. App. 2006), Bartsch v. Bartsch, 636 N.W.2d 3 (La. 2001).
  • 8Brown v. Bumb, 2003-1563, p. 6 (La. App. 4 Cir. 3/21/04), 871 So. 2d 1201, 1205.
  • 918 U.S.C. §§ 2261–2262.

6.6 Firearms Restrictions

6.6 Firearms Restrictions aetrahan Mon, 08/28/2023 - 09:32

6.6.1 Under a Protective Order

6.6.1 Under a Protective Order aetrahan Mon, 08/28/2023 - 09:32

Both federal and state firearm prohibitions apply to anyone who is subject to a protective order - despite recent federal court decisions that have raised alarm for advocates of domestic violence survivors.1  8 U.S.C. § 922(g)(8) makes it unlawful for a person to possess or purchase a firearm if he is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner (or child) or engaging in other conduct that would place an intimate partner (or child) in reasonable fear of bodily injury; except that it shall only apply to an order that:

(A) was issued after a hearing of which he received actual notice and had an opportunity to participate; and

(B)(i) includes a finding that such person represents a credible threat to the physical safety of the intimate partner or child; or

(ii) by its terms explicitly prohibits the use or threatened use of physical force against an intimate partner or child that would reasonably be expected to cause bodily injury.   

Thus, a protective order that expressly prohibits use of physical force or has a finding that the abuser poses a credible threat to the physical safety of the intimate partner or child invokes federal law prohibiting the abuser’s possession of a gun. The LPOR forms include the warning that federal law prohibits purchase or possession of firearms.

Violation of 18 U.S.C. § 922 may be prosecuted by federal authorities. Some abusers may be willing to consent to a protective order on the theory that § 922(g) would not apply to them since “no hearing occurred.” However, courts have not recognized this defense and the argument conflicts with other law about what constitutes a hearing.  So, any PO that is on the LPOR form would result in a federal prohibition on the possession of firearms by the defendant.

Louisiana also has a parallel provision that prohibits possession of firearms by a person against whom a protective order is issued.2  The prohibition applies where: 1) the protective order includes a finding that the person is a credible threat to the physical safety of a family or household member or a dating partner and 2) the protective order informs the person that they are prohibited from possessing a firearm under 18 U.S.C. § 922 and La. R.S. 46:2136.3.3  Violations of this statute are enforced as a criminal violation of La. R.S. 14.79.4

An abusive partner represented by counsel may seek to have an injunction entered that does not invoke these firearm prohibitions. Lawyers should advise clients as to the differences in protective orders and actively pursue firearm restrictions, particularly if the abusive partner has previously intimidated or harmed them with a firearm. La. R.S. 46:2136(A) allows the court to grant any provisions in a protective order that would bring about the end of abuse.5  Ask the court to expressly order the abusive partner to turn their guns over to law enforcement officials and to produce proof of said surrender to the court and ensure that the firearm prohibition is written on the protective order under Louisiana’s firearm removal law.6

  • 1The Supreme Court’s ruling in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 2125 (2022), has called into question whether this provision is constitutional under the Second Amendment. The U.S. Fifth Circuit recently found it unconstitutional under the Bruen framework. United States v. Rahimi, 61 F.4th 443 (5th Cir.2023), cert. granted, 143 S. Ct. 2688 (2023); see also United States v. Perez-Gallan, No. PE:22-CR-00427-DC, 2022 WL 16858516, at *15 (W.D. Tex. Nov. 10, 2022). The logic of these cases may also render the similar Louisiana statute unconstitutional, though this has not yet been finally litigated and the statute continues to be enforced as of this writing.
  • 2Similar to the federal questions on gun possession after the Rahimi decision, the constitutional framework used would also call into question the legitimacy of Louisiana’s statutory provision.
  • 3La. R.S. 46:2136.3.
  • 4Id.
  • 5La. R.S. 46:2136(A).
  • 6For further discussion, see Section 6.6.3.

6.6.2 Convicted Abusers

6.6.2 Convicted Abusers aetrahan Mon, 08/28/2023 - 09:37

In addition, 18 U.S.C. § 922(g)(9) prohibits persons who have been convicted of a misdemeanor crime of domestic violence from purchasing or possessing a firearm. There are exceptions for law enforcement and military personnel.

6.6.3 Firearm Removal & Divestment

6.6.3 Firearm Removal & Divestment aetrahan Mon, 08/28/2023 - 09:37

La. C.Cr.P. art. 1002 governs the transfer of firearms after a protective order is issued and requires that the court inform the person of the prohibition on firearm possession, the person state in court or state by affidavit the number and location of any firearms in his possession, the person complete a firearm information form, and the court send a copy of the firearm transfer order and the firearm information form to the sheriff of the parish.1  The person must surrender their firearms to the sheriff within 48 hours after the order is issued.2  Within 10 days of transferring their firearms, the person must file a proof of transfer form with the clerk of court.3  Failure to transfer firearms or file the proof of transfer is punishable as contempt of court under La. C.C.P. art. 1002.4  Either the court or the petitioner may initiate the enforcement proceeding.

  • 1La. C.Cr.P. art. 1002.
  • 2Id.
  • 3Id.
  • 4Id.

7 Divorce

7 Divorce aetrahan Mon, 08/28/2023 - 09:48

7.1 Immediate Divorce

7.1 Immediate Divorce aetrahan Mon, 08/28/2023 - 09:48

Domestic violence affects the timing of a divorce. Under La. C.C. art. 103.1, the requisite separation period for divorce is generally either 180 days or 365 days, depending on whether there are minor children.1  But divorce can be immediate in domestic violence cases.2  Only the victim of abuse may invoke the immediate divorce provision.3  Moreover, if a domestic violence victim petitions for immediate divorce under La. C.C. art. 103(4) or (5), and the other party petitions for a no-fault divorce under Article 103(1), the trial court should consider both demands and has the discretion to grant the divorce on either demand depending on the evidence.4  Importantly, Louisiana law does not prevent victims of abuse from obtaining a fault-based divorce under article 103, even if they bear some responsibility in the breakup of the marriage.5

Under La. C.C. art. 103(5), a petitioner is eligible for immediate divorce if a protective order or civil injunction was issued during the marriage to protect the petitioner or a child. The order may have been entered either by consent or after a contradictory hearing.6  A stay away order issued as a condition of release from jail or bond, if signed by the defendant, satisfies this requirement.7

Where no protective order has ever been issued, the petitioner must file under Article 103(4), request a Rule to Show Cause, and must prove the domestic violence. For this reason, attorneys representing victims should plan to present evidence of domestic violence sufficient to support both the immediate divorce and a permanent injunction under one of the two statutes discussed below.

  • 1La. C.C. art. 103.1.
  • 2La. C.C. art. 103(4)–(5).
  • 3Id. (requiring a showing of abuse by the other spouse).
  • 4Jennings v. Jennings, 2021-0386, p. 5 (La. App. 4 Cir. 12/1/21), 332 So. 3d 179, 184 (trial court did not err by granting wife’s 103(5) divorce on fault grounds, despite husband’s co-occurring petition for no-fault divorce based on separation).
  • 5Norton v. Norton, 21-212, p. 19 (La. App. 5 Cir. 12/22/21), 335 So. 3d 371, 385 (finding that freedom from fault is not a prerequisite to obtaining an Article 103 divorce).
  • 6La. C.C.P. art. 103(5).
  • 7Jennings, 2021-0386, p. 5, 332 So. 3d at 184.

7.2 Injunctions

7.2 Injunctions aetrahan Mon, 08/28/2023 - 09:55

7.2.1 Types of Injunctions

7.2.1 Types of Injunctions aetrahan Mon, 08/28/2023 - 09:55
  1. Injunction under Post-Separation Family Violence Relief Act, La. R.S. 9:366(A)       

In PSFVRA cases involving family violence, the court must include an injunction against abuse in the judgment for divorce.1  The terms of the injunction include restrictive no contact and stay away provisions in addition to typical prohibitions against physical abuse and harassment.2  The statute does not put a time limit on these injunctions, and they are typically issued as permanent injunctions. These injunctions, like all injunctions prohibiting abuse, should be reduced to an LPOR form, are entered into the Louisiana Protective Order Registry, and are a crime to violate.3

  1. Injunction against Abuse Ancillary to Divorce, La. R.S. 9:372

These injunctions are also available to victims of abuse who are married to their perpetrators and are seeking divorce. The injunctions available under this provision are more generic and less specific than those available through other statutes and prohibit “a spouse from physically or sexually abusing the other spouse or a child of either of the parties.” But like all injunctions prohibiting abuse, these injunctions are entered into the Louisiana Protective Order Registry and are a crime to violate.4

These orders can be permanent but must be issued prior to or in the divorce. Also, if an injunction is not included in the divorce, prior injunctions issued under this statute may expire upon divorce.5  If granted at divorce, the injunction should be included in the divorce judgment and must also be reduced to a Uniform Abuse Prevention Order form for submission to the LPOR. A subsequent divorce judgment may supersede a protective order if it fails to restate the injunctions against abuse.6

  1. Injunctions against Harassment, La. R.S. 9:372.1

These injunctions are frequently issued as mutual injunctions in divorce cases but should rarely, if ever, be used in domestic violence cases. In domestic violence cases, both judges and opposing counsel often propose these injunctions to promote settlement. But injunctions against harassment are a poor substitute for injunctions against abuse for several reasons. First, any mutual injunction should be considered potentially dangerous to victims for reasons described elsewhere in this chapter.7  But even if these orders are not mutual, they provide little protection to victims. Injunctions against harassment, unlike injunctions prohibiting abuse, are not reduced to a Louisiana Protective Order Registry Form and are not entered into the protective order registry. They are enforceable through contempt proceedings rather than arrest under the Criminal Code’s protective order violation statute, making enforcement both more difficult and less likely to address immediate safety issues.8

Importantly, these orders do not exempt an abused party from the custodial relocation notice requirements that protect victims with children who relocate,9  and they do not invoke federal firearm prohibitions.10

  • 1La. R.S. 9:366(A).
  • 2La. R.S. 9:363.
  • 3La. R.S. 14:79.
  • 4Lawrence v. Lawrence, 02-1066, p. 3 (La. App. 3 Cir. 3/5/03), 839 So. 2d 1201, 1203 (holding that an injunction may not be issued three years after divorce); Steele v. Steele, 591 So. 2d 810, 812 (La. App. 3 Cir. 1991).
  • 5Steele, 591 So. 2d at 812.
  • 6See id. (holding that a pre-divorce injunction under predecessor statute expires upon divorce if not expressly continued in divorce judgment).
  • 7For further discussion of the potential dangers of mutual injunctions, see Section 3.5.
  • 8La. R.S. 14:79.
  • 9La. R.S. 9:355.2(C)(2).
  • 1018 U.S.C. § 922 (g).

7.2.2 Selecting an Injunction

7.2.2 Selecting an Injunction aetrahan Mon, 08/28/2023 - 10:02

When assessing which injunction best meets your client’s needs consider the following:

Differences in Relief. In general, the three injunctions mentioned in the previous section are similarly enforceable, but provide different relief. The PSFVRA explicitly defines injunctions to include restrictive stay-away and no-contact provisions that are not available through injunctions with divorce that merely prohibit abuse.1  Another key difference is the effect of violations on custody determinations. If a petitioner is awarded an injunction under La. R.S. 9:366 (the PSFVRA), any violation of that injunction requires that the abusive parent’s visitation be terminated.2  This law can function both as a strong deterrent for the abusive party and as an important tool to protect victims and their children. It is not available under La. R.S. 9:372 injunctions ancillary to divorce.

On the other hand, La. R.S. 9:372 injunctions against abuse ancillary to divorce include generic prohibitions against conduct that is already illegal (i.e., physical and sexual abuse). La. R.S. 9:372 includes no explicit language regarding stay away provisions, prohibitions on contact, or restrictions on conduct that is not already illegal.3  Even though an Injunction Ancillary to Divorce appears to prohibit only behavior that is already criminal, many courts will include additional remedies, like stay away provisions, if they are specifically pled. In fact, the Louisiana Protective Order Registry Form for section 372 injunctions includes remedies not specifically enumerated in the statute, and those forms create persuasive authority in favor of expanded relief.4

Enforceability. Even a very limited Injunction Against Abuse Ancillary to Divorce creates an important remedy for victims because it creates additional criminal enforcement mechanisms. These orders, like all injunctions prohibiting abuse, are entered into the Louisiana Protective Order Registry and are a crime to violate.5  So an abuser who violates either type of injunction could potentially be charged both with violation of the order and with any underlying crime committed during the violation.

Making a Decision. Given these differences, lawyers should consider how the protections available under each statute fit a client’s specific circumstances, whether the visitation termination provision of the PSFVRA is likely to be invoked against an abuser who violates an injunction, and whether the evidence satisfies the requisite burdens. A petitioner who desires the flexibility of more substantial contact because of shared children may find a no-contact provision impractical and instead opt for a less restrictive order in an Injunction Ancillary to Divorce under section 372. On the other hand, a petitioner who has been stalked and harassed or who feels the risk of future harm is imminent or likely may want a more restrictive order under the PSFVRA to prevent her abuser from using shared children as an excuse to facilitate unwanted or dangerous contact. These issues should be discussed in detail with clients so that lawyers can request and draft orders that are tailored to meet each client’s specific needs and also so that ultimate decisions affecting client safety are the client’s, not the lawyer’s.6  If the client elects not to seek a permanent injunction under the PSFVRA, you should document this decision in writing to the client, after a full discussion of the advantages and disadvantages of the injunction.

  • 1La. R.S. 9:361.
  • 2La. R.S. 9:366(B).
  • 3However, Louisiana’s Protective Order Forms include no contact provisions for injunctions issued under La. R.S. 9:372. See Legal Forms, La. Sup. Ct.
  • 4McCann v. McCann, 09-1341, p. 10 (La. App. 3 Cir. 3/10/10), 33 So. 3d 389, 396.
  • 5La. R.S. 14:79.
  • 6While lawyers should defer to client decisions on issues regarding safety, some clients minimize the risk of future harm and, initially, can be unrealistic about the possibility of safe contact with abusers. See Jacquelyn C. Campbell, et al., The Danger Assessment: Validation of a Lethality Risk Assessment Instrument for Intimate Partner Femicide, 24 J. Interpersonal Violence 653 (2008). In this situation, the lawyer might ask the client to consider whether her expectations of an abuser’s future conduct are supported by the abuser’s past conduct. An unrealistic order that anticipates cooperation by an abuser can be unsafe for victims and can also increase the likelihood of future litigation, which can be quite expensive.

7.2.3 Interactions with Protective Orders

7.2.3 Interactions with Protective Orders aetrahan Mon, 08/28/2023 - 10:19

Injunctions at divorce under either La. R.S. 9:366 or 9:372 are generally considered permanent and often last longer than orders awarded under the protective order statutes.  Although courts may issue protective orders under the DAAA with provisions that can last indefinitely, many judges rarely do so, preferring to issue orders that expire after a fixed period of time. A client who fails to request a permanent injunction at divorce may miss her opportunity for a permanent order.1

In addition, once a DAAA order expires, the child custody relocation statute may apply to victims who do not obtain more permanent orders. Victims of domestic violence are exempt from the notice requirements of relocation only if a protective order is “in effect” when they relocate.2

  • 1For further discussion of this point, see Section 6.1.1.
  • 2La. R.S. 9:355.2(C)(2).

7.2.4 Default Judgment

7.2.4 Default Judgment aetrahan Mon, 08/28/2023 - 10:21

In some circumstances, a client may be able to obtain a divorce by default judgment without a hearing.1  However, courts and judges vary in their willingness to grant a divorce by default if the petitioner has also requested an injunction. Where a petitioner has requested a permanent injunction at divorce, lawyers should plan to introduce testimony and evidence about the violence to support an award of a permanent injunction.

  • 1For further discussion of default-judgment divorces, see Section 3.7 of the chapter on family law.

7.3 Name Changes

7.3 Name Changes aetrahan Mon, 08/28/2023 - 10:23

A married woman’s birth name is her legal surname.1  Marriage does not change her legal surname.2  The divorce petition and judgment should be drafted to confirm your client’s birth name if she wishes to resume use of that name.3

  • 1La. C.C.P. art. 3947(B).
  • 2Id.
  • 3For additional information regarding name confirmation following divorce, see Section 3.10.4 of the chapter on family law.

7.4 Spousal Support

7.4 Spousal Support aetrahan Mon, 08/28/2023 - 10:31

7.4.1 General Principles

7.4.1 General Principles aetrahan Mon, 08/28/2023 - 10:31

Domestic violence survivors often face financial challenges when separating from abusive partners that make spousal support especially important. Years of abuse cause many victims to have serious health problems that adversely impact their ability to support themselves. The following sections discuss special issues that arise when a domestic violence survivor claims spousal support.1

  • 1For discussion of the general principles surrounding interim and final spousal support, see Section 7 of the chapter on family law.

7.4.2 Role of Fault

7.4.2 Role of Fault aetrahan Mon, 08/28/2023 - 10:33

Proof of freedom from fault is not required for interim spousal support. However, to get final spousal support, a spouse must show that she was free from fault in the dissolution of the marriage and that she lacks means of support.1  In domestic violence cases, there is now a legal presumption that the abused spouse is entitled to final support.2  But, this presumption can be overcome.

A petitioner who is awarded a fault-based divorce pursuant to La. C.C. art. 103(4) or (5) or who is determined by the court to have been a victim of domestic abuse during the marriage in an Article 102 proceeding is presumed to be entitled to final periodic spousal support.3  This shifts the burden to the abusive party to overcome the presumption through evidence of the petitioner’s need, that abusive party’s ability to pay, and the petitioner’s pre-filing fault.4  Further, when support is awarded after a judgment of divorce based on domestic abuse, “the sum awarded may exceed one-third of the obligor’s net income and may be awarded as a lump sum.”5  These benefits are not available for divorces based on other grounds.

Sometimes an abusive former partner seeks to benefit from the collateral consequences of the abuse by characterizing the problems caused by the abuse, such as mental health problems or substance dependence, as fault that would relieve the abusive party of the obligation of final support. Fault that bars spousal support must be serious and an independent contributory or proximate cause of the breakup.6

  • 1La. C.C. art. 111.
  • 2La. C.C. art. 112(C).
  • 3Id.
  • 4Id. 2018 cmt. But see Morgan v. Morgan, 2022-0472, p. 13 (La. App. 4 Cir. 12/13/22), 353 So. 3d 1026, 1034 (finding that post-filing adultery precluded domestic violence victim from obtaining final support).
  • 5La. C.C. art. 112(D)
  • 6Matthews v. Matthews, 15–499, p. 6 (La. App. 5 Cir. 12/23/15), 184 So. 3d 173, 177.

7.4.3 Specific Types of Fault

7.4.3 Specific Types of Fault aetrahan Mon, 08/28/2023 - 10:35

Abandonment. Abandonment without lawful cause is a common ground for finding “fault” that bars final spousal support. It is not uncommon for an abusive former partner to allege abandonment when the abused spouse leaves because of the violence. A finding of domestic violence precludes a finding that the victim abandoned her spouse.1  In order to defend against fault, the victim must prove the abuse if she has not already done so. Even threats of violence constitute lawful cause for abandonment.2

Adultery. Despite the presumption in favor of final periodic support, a domestic violence victim who engages in either pre- or post-filing adultery may be considered at fault and barred from final support.3

Self-defense or Responsive Violence. If the victim of abuse has committed violence against the abusive partner that is a “reasonable and justifiable response” to the abuse, she is not “at fault” in the breakup of the marriage.4  According to the 2018 Revision Comments to Article 112, “[i]n the domestic violence context in particular, the court should consider the potentially responsive nature of a victim’s actions.” Arguably, “responsive” violence is broader than self-defense and could include acts of resistance in an abusive relationship that are not necessarily or neatly framed as self-defense.

Reconciliation. Reconciliation often occurs in violent relationships prior to the final separation. Reconciliation that follows “fault” nullifies the prior fault.5  Thus, the critical question is the alleged misconduct that occurred between the last reconciliation and the filing of the divorce action. But in some cases, reconciliation can be challenged as nonmutual. For instance, if a perpetrator moves back into a shared home without the victim’s consent, or the victim returns to a shared home for fear of her safety, her intent to reconcile may be at issue. The motives and intent of the parties will determine reconciliation.6  In general, however, if domestic violence, financial abuse, fear, or coercion contributed to the circumstances that the abuser claims constitute reconciliation, the requisite intent and forgiveness may be lacking, and application of the nullification principle is both wrong and inequitable.

Mental health and substance dependence. Some survivors suffer from mental health challenges or substance dependence because of the trauma and abuse they have experienced.7  “Misconduct” caused by mental illness is excused and will not bar final support.8  The mental illness must precede the misconduct. In these cases, expert medical testimony on the mental illness and the causal relationship to the misconduct is highly recommended, but not required.9  Alcohol and substance dependence can be fault-based causes for divorce, but the consumption must be to such an extent that it substantially interferes with the spouse’s marital duties or inflicts great mental anguish upon the other spouse.”10  One study found that 67% of abusive partners frequently abuse alcohol.11  The abusive partner’s intemperance may preclude a finding of fault against the victim.12  A course of conduct such as drinking, when approved and consented to by both spouses, cannot constitute mutual fault.13

  • 1Thomas v. Thomas, 2017-0760, p. 9 (La. App. 4 Cir. 2/21/18), 238 So. 3d 515, 522.
  • 2Caldwell v. Caldwell, 95-CA-963 (La. App. 5 Cir. 3/13/96), 672 So. 2d 944, 947.
  • 3Morgan v. Morgan, 2022-0472, p. 13 (La. App. 4 Cir. 12/13/22), 353 So. 3d 1026, 1034.
  • 4See Smith v. Smith, 08-575, p. 16 (La. App. 5 Cir. 1/12/10), 31 So. 3d 453, 464 (wife arrested for simple battery after throwing scalding water on her husband was not at fault in the break-up of the marriage where evidence showed a history of abuse and that she acted in self-defense).
  • 5La. C.C. art. 104; see Doane v. Benenate, 95-CA-0953, p. 3 (La. App. 4 Cir. 2/15/96), 671 So. 2d 523, 525; see also Noto v. Noto, 09-1100, p. 7 (La. App. 5 Cir. 5/11/10), 41 So. 3d 1175, 1180.
  • 6Woods v. Woods, 27199-CA, p. 2 (La. App. 2 Cir. 8/23/95); 660 So. 2d 134, 136; see also Rivette v. Rivette, 2004-1630, p. 4 (La. App. 3 Cir. 4/6/05), 899 So. 2d 873, 875 (citing Woods).
  • 7Richard Irons & Jennifer Schneider, When is Domestic Violence a Hidden Face of Addiction, 29 J. Psychoactive Drugs 337 (1997) (reporting that battered women comprise 64% of female patients admitted to inpatient psychiatric service).
  • 8Doane, 95-CA-0953, p. 3, 671 So. 2d at 525; Eppling v. Eppling, 537 So. 2d 814, 818 (La. App. 5 Cir. 1989).
  • 9See Scarengos v. Scarengos, 606 So. 2d 9, 10 (La. App. 5 Cir. 1992). But see Dolese v. Dolese, 517 So. 2d 1279, 1280 (La. App. 4 Cir. 1987).
  • 10Matthews v. Matthews, 15-499, p. 7 (La. App. 5 Cir. 12/23/15), 184 So. 3d 173, 178.
  • 11Irons & Schneider, supra.
  • 12"Intemperance" is defined by Oxford Languages as “excessive indulgence, especially in alcohol.” Intemperate, Concise Oxford English Dictionary (luxury ed. 2011).
  • 13Jenkins v. Jenkins, 38,873-CA (La. App. 2 Cir. 8/22/04), 882 So. 2d 705; 712-13; Matthews, 15-499, 184 So. 3d at 179.

7.5 Use & Occupancy of the Family Home

7.5 Use & Occupancy of the Family Home aetrahan Mon, 08/28/2023 - 10:54

7.5.1 General Principles

7.5.1 General Principles aetrahan Mon, 08/28/2023 - 10:55

Housing is one of the most important needs for many survivors and their children. Abusive former partners often punish victims by denying them the financial support necessary to make rent payments, causing them to be evicted, failing to pay the home mortgage, or damaging the home to make it uninhabitable.

Two statutory procedures are available to a spouse or parent who needs to obtain use and occupancy of the family home or apartment: Sections 2135–2136 of the Domestic Abuse Assistance Act and Injunctions and Incidental Orders under La. R.S. 9:374. A petitioner who is not seeking a protective order under the domestic abuse statutes will have to address her housing needs under section 9:374, a general use and occupancy statute that applies to shared residences of divorcing couples.

7.5.2 Domestic Abuse Assistance Act

7.5.2 Domestic Abuse Assistance Act aetrahan Mon, 08/28/2023 - 10:56

Under the DAAA, a domestic abuse protective order or TRO may grant the petitioner possession of the residence or household to the exclusion of the defendant by evicting him or restoring possession to the petitioner. This relief is available in any of three circumstances: (1) the residence is jointly owned in equal proportion or leased by the defendant and the petitioner or the person on whose behalf the petition is brought; (2) the residence is solely owned by the petitioner or the person on whose behalf the petition is brought; or (3) the residence is solely leased by the defendant, and the defendant has a duty to support the plaintiff or the person on whose behalf the petition is brought.1  This relief can be obtained in a TRO without a contradictory hearing and can be continued by protective order for up to eighteen months.

In addition, a protective order issued under La. R.S. 46:2136 may grant the petitioner possession of, and evict a defendant from, a residence that is solely owned by the defendant, where the petitioner has been awarded temporary custody of the parties’ minor children or may order the provision of suitable alternative housing.2

  • 1La. R.S. 46:2135(A), 2136(A)(1)–(2).
  • 2La. R.S. 46:2136(A)(2).

7.5.3 Injunctions and Incidental Orders

7.5.3 Injunctions and Incidental Orders aetrahan Mon, 08/28/2023 - 10:57

La. R.S. 9:374 addresses use and occupancy of a shared residence in divorce. Under this statute, the court can award use and occupancy only after the filing of a divorce (or a separation of property in the case of community property) and a contradictory hearing.

Where the family residence is community property, either spouse may petition for use and occupancy. The court may award use and occupancy pending partition of the community property or further orders, whichever occurs first.1     

Where the family residence is the separate property of either spouse, the spouse who has physical custody or who has been awarded temporary custody of the minor children of the marriage may petition for use and occupancy. After a contradictory hearing, the court may award the use and occupancy of the family residence and use of community movables or immovables pending partition of the community property or until 180 days after termination of the marriage, whichever occurs first.2

Courts should award use and occupancy based upon the best interest of the family, and, in doing so, must consider the relative economic status of the parties and the needs of the children.3  Ordinarily, occupancy by the spouse who has custody of children is in the best interest of the family.4  In cases involving a “history of family violence,” victims should have a strong case for occupancy of the marital residence because Louisiana custody laws require, in general, that they be awarded sole custody.5

Use of La. R.S. 9:374 raises issues regarding rent reimbursement. Be prepared to address this issue if requesting use and occupancy under that statute. The non-occupant spouse may file a motion for rent at any time, but rent cannot be awarded retroactively unless the issue was explicitly deferred by court order or agreement of the parties at the time exclusive possession was determined.6  The trial court has discretion to determine whether rent reimbursement should be awarded to the non-occupant spouse, and the law provides little guidance regarding what factors to consider.7  At least one Louisiana court of appeal has upheld the denial of a rent reimbursement claim where the trial court considered, in part, the non-occupant claimant’s history of domestic abuse against his spouse.8

  • 1La. R.S. 9:374(B).
  • 2La. R.S. 9:374(A).
  • 3Id.
  • 4Bergmann v. Nguyen, 2021-0553 (La. App. 4 Cir. 4/27/22), 2022 WL 1238232, writ denied, 2022-01075 (La. 10/18/22), 348 So. 3d 725; Burrell v. Burrell, 437 So. 2d 354, 356 (La. App. 4 Cir. 1983).
  • 5La. R.S. 9:364.
  • 6La. R.S. 9:374(D).
  • 7Luzhen Zheng v. Hui Wu Lin, 19-84 (La. App. 5 Cir. 10/2/19), 282 So. 3d 337 (citing Richard v. Richard, 95-1536 (La. App. 4 Cir. 2/15/96), 669 So. 2d 1267, 1269–70).
  • 8Id.

8 Custody and Visitation

8 Custody and Visitation aetrahan Mon, 08/28/2023 - 11:00

8.1 General Principles

8.1 General Principles aetrahan Mon, 08/28/2023 - 11:00

The presence of domestic violence presents special issues in child custody determinations. Domestic violence prompts the application of different laws and requires different litigation practices than those used in other child custody cases. A family law attorney who fails to distinguish between cases that involve domestic violence and those that do not risks both malpractice and harm to victims and their children. This section addresses custody laws and litigation issues unique to domestic violence cases. It will touch only peripherally on general laws for custody and visitation.1

The first thing lawyers representing survivors should know is that the traditional “best interest” test that governs child custody determinations does not govern cases involving a history of abuse. So, although La. C.C. art. 134 explicitly lists a variety of “best interest” factors courts must consider when determining child custody, in cases involving a history of family violence, different standards govern.2  And in contrast to Louisiana’s presumption in favor of joint custody in ordinary custody disputes,3  there is a legal presumption of sole custody in cases involving abuse.4

Louisiana was one of the first states in the nation to create a custodial presumption in favor of an abused parent in lieu of a traditional best interest test. There are many reasons why a traditional best interest test is inappropriate and even harmful in cases involving abuse. First, many of the best interest factors used by courts place abused mothers at a disadvantage. For example, if the victim of abuse has recently fled or ended an abusive relationship, she may be at a disadvantage with respect to factors that favor a continuity of the home environment, the ability to provide for material needs, or the willingness to “encourage” a close relationship with the other (abusive) parent. She may also be experiencing anxiety, depression, or other effects of the abuse that an abusive party will attempt to characterize as mental health problems affecting parental fitness under a traditional best interest test.

Second, despite overwhelming empirical data to the contrary, many family court judges and court-appointed evaluators believe that the effects of domestic violence on children dissipate once two parents separate. So, historically, many judges applied the best interest factors in ways that failed to consider the harm caused by children’s exposure to domestic violence perpetrators, even after separation. Exposure to domestic violence perpetrators has devastating effects on children. An increasingly robust body of research suggests that children living in homes where a parent is abused suffer emotional, psychological, and long-term life consequences practically identical to those of children who are themselves physically abused.5

Children living in these homes are at risk of developing profound psychological, behavioral, cognitive, social and educational problems – problems that often manifest in impaired functioning as adults.6  Even more, children whose mothers are abused are at significantly increased risk of also being abused.7  And after separation, children who have never been previously physically abused by a domestic violence perpetrator are at increased risk of being physically abused themselves.8

Moreover, when survivors leave abusive relationships, abusive former partners routinely seek to punish and harass their victims through aggressive custody and visitation litigation. And they abuse their powers as joint custodians to bully and harass the non-abusive parent.9  Visitation exchanges and visitation times can expose both victims and their children to continuing injury. After separation, visitation contact is the most common context in which victims will be re-assaulted.10  When insufficient visitation protections are in place for children, or when abusers are awarded sole or joint custody, some victims reconcile as a last resort to help keep their children safe.

Nationally, perpetrators of abuse have been very effective at making good on their promises to punish victims by taking away their children.11  Men who abuse their intimate partners are more likely to seek custody of their children than are non-violent fathers.12  A variety of gender bias studies conducted in state courts across the nation have shown that, contrary to the commonly held belief that women are favored in contested custody litigation, women face serious disadvantages in family law courts.13  Some studies suggest that mothers who are victims of abuse may be more likely to lose custody of their children than women who are not.14  So despite well-designed custody laws to protect victims and their children, domestic violence perpetrators are frequently awarded sole or joint custody.15

Numerous issues contribute to this problem, including a lack of education about domestic violence and its effects. In many cases, abusive former partners exploit the lingering psychological effects of abuse by framing them as parenting deficits in the victim. In other cases, they benefit from societal misconceptions that domestic violence perpetrators will present as angry or impulsive outside the context of the intimate relationship or that they have obvious mental health issues that can be detected by psychological testing or evaluation.16

For all the reasons described above, one of the most important services a lawyer can provide to a victim of abuse is child custody representation. For most victims of abuse, it is nearly impossible to meaningfully co-parent with an abusive former partner who has been awarded shared custodial rights. The tactics of control and coercion abusive partners engage in create continual conflict, anxiety, and exposure to continued physical and psychological harm for the non-abusing parent. Louisiana’s Post-Separation Family Violence Relief Act (PSFVRA), La. R.S. 9:361­­–369, addresses many of these problems.17  The PSFRVRA creates important legal remedies that protect abused parents and their children, as well as children who themselves are abused. It limits judicial discretion to apply best interest factors in family violence cases, creates custodial presumptions in favor of the non-abusive parent, and imposes restrictions on the abusive parent’s visitation. Importantly, the presumption against awarding an abusive party custody removes the burden from the victim to show the connection between domestic violence and harm to the children.

Because the PSFRVA should govern most custody determinations in family violence cases, the following sections focus on that Act.

  • 1For detailed discussion of these laws generally, see Section 4 and Section 5 of this manual’s chapter on family law.
  • 2La. C.C. art. 134(B).
  • 3La. C.C. art. 132.
  • 4La. R.S. 9:364.
  • 5Behind Closed Doors: The Impact of Domestic Violence on Children, UNICEF (2006); Evan Stark, Rethinking Custody Evaluation in Cases Involving Domestic Violence, 6 J. Child Custody 287, 292 (2009); William Copeland, et al., Association of Childhood Trauma Exposure With Adult Psychiatric Disorders and Functional Outcomes, 1 JAMA New Open e184493 (2018) (exposure to domestic violence in the home had the same effects as experiencing the abuse directly).
  • 6Stark, Rethinking, supra, at 292. While children in these homes are at much greater risk of these harms, not all children suffer these harms – many children show significant coping skills and resilience in the face of abuse. Id.; The Effects of Intimate Partner Violence on Children 2 (Robert Geffner, et al., eds., 2003); see generally V.J. Felitti, et al., Relationship of Childhood Abuse and Household Dysfunction to Many of the Leading Causes of Death in Adults: The Adverse Childhood Experiences (ACE) Study, 14(4) Am. J. Prev. Med. 245 (1998) (finding that exposure to domestic violence is one of the seven original “adverse childhood experiences” correlated with lifetime risk factors for problems such as poor health, poor educational attainment, adult poverty, substance misuse, teen pregnancy, STDs, and criminal justice system involvement).
  • 7Stark, Rethinking, supra, at 292 (describing “robust link” between domestic violence and child physical and sexual abuse); The Effects of Intimate Partner Violence on Children, supra.
  • 8The Effects of Intimate Partner Violence on Children, supra, at 2.
  • 9Evan Stark, The Battered Mother’s Dilemma, in 2 Violence Against Women in Families and Relationships 95, 96 (Evan Stark & Eve Buzawa. eds., 2009).
  • 10Stark, Rethinking, supra, at 292.
  • 11Joan S. Meier, U.S. Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations: What Do the Data Show?, 42 J. of Social Welfare and Family L. 92 (2020).
  • 12Joan Zorza & Leora Rosen, Guest Editor’s Introduction, 11 Violence Against Women 983, 986 (2005).
  • 13Stark, Rethinking, supra, at 314; see also Stephanie Dallam, Are “Good Enough” Parents Losing Custody to Abusive Ex-Partners (updated May 27, 2006) (citing and summarizing state-sponsored gender bias studies); see also Meier, U.S. Child Custody Outcomes, supra, at 96.
  • 14Stark, Rethinking, supra, at 314; see Meier, U.S. Child Custody Outcomes, supra, at 96; Peter Jaffe, et al., Dep’t of Justice Canada, Making Appropriate Parenting Arrangements in Family Violence Cases: Applying the Literature to Identify Promising Practices 16 (2005).
  • 15Joan S. Meier, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 J. Gender, Soc. Pol’y, & L. 657, 662 (2003); Evan Stark, Rethinking, supra.
  • 16Lundy Bancroft, et al., The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics 156 (2d ed. 2012).
  • 17See D.O.H. v. T.L.H., 01-174 (La. App. 3 Cir. 10/31/01), 799 So. 2d 714, 721–32 (Woodard, J., dissenting) (discussing the intent of the PSFVRA and how domestic violence affects children).

8.2 The Post-Separation Family Violence Relief Act

8.2 The Post-Separation Family Violence Relief Act aetrahan Mon, 08/28/2023 - 11:46

The PSFVRA is mandatory in all custody and visitation disputes that involve a “history” of family violence, whether the parents are unwed, married, or divorced.1  Its custody and visitation restrictions apply in all family violence cases whether a party pleads the Act.2  For example, in Durand v. Rose, Louisiana’s Fourth Circuit reversed a trial court order that had awarded the parties joint custody despite a history of family violence. In reversing the trial court, the Fourth Circuit conducted a de novo review of the record, vacated the joint custody order, and awarded the mother sole custody under the PSFVRA on grounds that the trial court did not have discretion under the Act to award joint custody.3

The PSFVRA provisions that do not involve child custody, such as the requirement of injunctions or the prohibition on mediation, are triggered upon a finding of family violence alone, and do not require the petitioner show “a history” of family violence.

  • 1See Evans v. Terrell, 27615-CA, p. 5 (La. App. 2 Cir. 12/6/95), 665 So. 2d 648, 651. The PSFVRA applies to family violence cases without regard to the parents’ marital status. See La. R.S. 9:308, 362(1)–(4), 363–364.
  • 2La. C.C. art. 134(B). This provision supersedes prior case law holding that the PSFVRA could not be pled for the first time on appeal. The PSFVRA now explicitly applies to any case involving a history of family violence, without regard for whether its provisions were pled. See Durand v. Rose, 2022-0300 (La. App. 4 Cir. 9/15/22), 2022 WL 4244409, writ denied, 2022-01727 (La. 1/18/23), 353 So. 3d 127; see also Melancon v. Russell, 18-48 (La. App. 5 Cir. 10/17/18), 258 So. 3d 955 (PSFVRA relief becomes operable once there is a finding of a history of family violence, regardless of whether specific Act pled).
  • 3Durand, 2022-0300, p. 7, 2022 WL 4244409.

8.3 Available Relief

8.3 Available Relief aetrahan Mon, 08/28/2023 - 11:49

8.3.1 Mandatory Standards

8.3.1 Mandatory Standards aetrahan Mon, 08/28/2023 - 11:49

The PSFVRA imposes mandatory standards for determining custody and visitation where there is a “history of family violence.” It is important for advocates to be prepared to argue that these mandatory standards displace much of the discretion available under a traditional “best interest” test.

8.3.2 Custodial Presumption

8.3.2 Custodial Presumption aetrahan Mon, 08/28/2023 - 11:49

The PSFVRA creates a custodial presumption in favor of the abused parent and prohibits an award of sole or joint custody to a parent with a history of family violence.1

The custodial presumption in favor of the parent subjected to abuse can be overcome only by meeting a three-part test that includes the existence of circumstances suggesting parental unfitness. To overcome the presumption, the abusive parent must prove: 1) that he has successfully completed a court-monitored domestic abuse intervention program or a treatment program designed for sexual abusers, since the last instance of abuse;2  2) that he is not abusing alcohol or drugs; and 3) that the best interest of the child or children requires the perpetrating parent’s participation as a custodial parent because of the other parent’s absence, mental illness, substance abuse, or other circumstance negatively affecting the child or children.3

The third prong of this test imposes a higher burden than an ordinary “best interest” test. Under the rule of ejusdem generis, “other circumstances” must be like the preceding terms, which include only factors suggesting parental unfitness.4  In other words, mere “best interest” circumstances that do not rise to a level of parental unfitness are not sufficient. If they were, the statute would not have given as examples only factors regarding parental unfitness. In other words, if one interprets the statute to require only a showing of “best interest” circumstances, the statute’s specific reference to an “abused parent’s absence, mental illness, substance abuse” is rendered superfluous and meaningless. This interpretation violates rules of construction requiring that a statute be read to give effect to all its words and parts.5

  • 1La. R.S. 9:364(A).
  • 2The treatment program must comply with the rigorous requirements set forth in La. R.S. 9:362(3).
  • 3La. R.S. 9:364.
  • 4Under the statutory construction rule of ejusdem generis, general words are restricted to a sense analogous to the less general words. Pumphrey v. City of New Orleans, 2005-0979 (La. 4/4/06), 925 So. 2d 1202, 1211.
  • 5Ritchie v. La. Dep’t of Pub. Safety & Corrections, 595 So. 2d 1158, 1160 (La. App. 1 Cir. 1991).

8.3.3 Problems Attributable to the Abuse

8.3.3 Problems Attributable to the Abuse aetrahan Mon, 08/28/2023 - 11:54

The PSFVRA prohibits courts from denying custody to the parent subjected to abuse because of problems attributable to the abuse.1  This provision is key because many survivors are dealing with problems attributable to the abuse while litigating custody. Abusive former partners attempt to frame the problems they cause as parenting deficits in the abused parent and weaponize those problems during custody disputes. One common example is mental health issues such as depression and anxiety in the parent subjected to abuse. Other examples include financial, employment, and housing instability created or exacerbated by the violent parent’s abusive and controlling conduct or the exigent circumstances of the separation.

  • 1La. R.S. 9:364(C).

8.3.4 Visitation Restrictions

8.3.4 Visitation Restrictions aetrahan Mon, 08/28/2023 - 11:54

Initially, a parent with a history of family violence can only be awarded supervised visitation,1  which must occur in the immediate presence of the supervisor, cannot be overnight or in the abusive party’s home, and must be paid for by the abuser.2

The PSFVRA prohibits the parent with a history of abuse from exercising unsupervised visitation until he satisfies a variety of conditions that include proving successful completion of a batterer intervention treatment program since the last incident of abuse.3  After that, he may petition to have unsupervised visitation, but unsupervised visits will not be granted merely because the treatment program was completed.4  At the hearing, the court must consider evidence of the abusive parent’s current mental health condition and the possibility of continuing abuse. In addition, the parent must prove that visitation would be in the best interest of the child and would not cause physical, emotional, or psychological damage to the child. Even if proven, the court may continue the supervision and impose any continuing or additional restrictions, conditions, and safeguards necessary to minimize any risk of harm to the child.5

The PSFVRA specifically prohibits courts from using an abusive party’s friends, relatives, therapist, or associates as visitation supervisors.6  The requirement that visitation be “supervised” is easily undermined by the appointment of supervisors who would not meaningfully monitor the visitation. Although the court may appoint a victim’s friends or family to supervise visitation if the victim consents,7  supervision by a friend or family member of the victim is rarely a safe or reliable option. Lawyers should explore other safe supervision options in their community in advance of court.

  • 1La. R.S. 9:341, 364(E).
  • 2La. R.S. 9:362(7).
  • 3La. R.S. 9:341(A).
  • 4Id.
  • 5Id.
  • 6La. R.S. 9:362(7); Hollingsworth v. Semerad, 35,264-CA (La. App. 2 Cir. 10/31/01), 799 So. 2d 658 (amending trial court judgment to require “unbiased” supervisor even where PSFVRA was held inapplicable).
  • 7La. R.S. 9:362(7).

8.3.5 Mediation

8.3.5 Mediation aetrahan Mon, 08/28/2023 - 11:57

The PSFVRA prohibits courts from ordering mediation in family violence cases.1  A party who shows that she or any of the children has been a victim of family violence perpetrated by the other spouse or parent may not be ordered to mediate a divorce, child custody, visitation, child support, or community property proceeding.2  This rule applies for any family violence case and does not require that there be a “history” of family violence.3

  • 1La. R.S. 9:363.
  • 2Id.
  • 3Only the PSFVRA’s custodial presumption requires that petitioner show a “history” of family violence that includes either more than one incident of family violence, or one incident resulting in serious bodily injury. La. R.S. 9:364(A).

8.3.6 Permanent Protective Orders

8.3.6 Permanent Protective Orders aetrahan Mon, 08/28/2023 - 11:58

The PSFVRA mandates permanent protective orders for victims.1  Under the PSFVRA, all orders entered in family violence cases shall include an injunction against abuse. This rule applies for any family violence case and does not require proof of a “history” of family violence.2  The Act defines “Injunction” to include specifically enumerated protections.3  Unless otherwise specified, the injunctions are permanent.

  • 1La. R.S. 9:366.
  • 2Only the PSFVRA’s custodial presumption requires that petitioner show a “history” of family violence that includes either more than one incident of family violence, or one incident resulting in serious bodily injury. La. R.S. 9:364(A).
  • 3La. R.S. 9:362(5).

8.3.7 Termination of Parental Rights

8.3.7 Termination of Parental Rights aetrahan Mon, 08/28/2023 - 14:45

The PSFVRA requires that visitation available to a parent with a history of family violence be terminated altogether if that parent violates an injunction against abuse.1  This termination appears to be permanent.2

In addition, an abusive former partner’s visitation rights must be completely terminated if it is proven by clear and convincing evidence that the parent sexually abused the child.3  The prohibition on visitation continues until the abusive parent proves that he has successfully completed a treatment program for sexual abusers and that supervised visitation would be in the child’s best interest.4  Even after this is proved, only supervised visitation can be allowed. If necessary, the protecting parent can also invoke Article 1570(F) of the Children’s Code to suspend visits until the child reaches majority.

  • 1La. R.S. 9:366(B).
  • 2The legislative history of the Post-Separation Family Violence Relief Act makes it clear that the legislature intended to eliminate the courts’ power to allow visitation for violators of injunctions. Compare Act 1091 of 1992 with Act 888 of 1995 and Act 750 of 2003. A brief on this issue is available here.
  • 3La. R.S. 9:364(F).
  • 4Buchanan v. Langston, 36,520-CA (La. App. 2 Cir. 9/18/02), 827 So. 2d 1186. If sex abuse is proven, however, La. C.Ch. art. 1570(F) may be invoked instead to suspend visitation until the child is eighteen years old.

8.3.8 Appointments of Mental Health Professionals

8.3.8 Appointments of Mental Health Professionals aetrahan Mon, 08/28/2023 - 14:49

The PSFVRA creates strict standards for the appointment of mental health professionals in family violence cases.1

La. R.S. 9:365 mandates that any mental health professionals appointed to conduct a custody evaluation in a case where family violence is an issue must have “current and demonstrable training and experience working with perpetrators and victims of family violence.”2  Many attorneys who are untrained in intimate partner violence assume that mental health professionals are knowledgeable and helpful in cases involving family violence. But the vast majority of mental health professionals are not experts in family violence, and an untrained mental health professional could botch the evaluation and endanger the parties and the children.3

When appropriate, contest an evaluator’s qualifications under La. R.S. 9:365.4  Failure to object to an unqualified evaluator at the time of appointment could waive the objection.5  Consider not only objecting to an evaluator’s qualifications, but also opposing the appointment of a custody evaluator entirely.6

  • 1 La. R.S. 9:365. For more detailed discussion, see Section 8.8.
  • 2Many mental health professionals do not have this training because it is not a required course in professional schools. A minimum of forty hours of specialized domestic violence training should be expected for court-appointed evaluators.
  • 3Evan Stark, Rethinking Custody Evaluation in Cases Involving Domestic Violence, 6 J. Child Custody 287 (2009); Robert Geffner, et al., Conducting Child Custody Evaluations in the Context of Family Violence Allegations: Practical Techniques and Suggestions for Ethical Practice, 6 J. Child Custody 189 (2009); Nat’l Council Juvenile & Family Court Judges, Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide (2006).
  • 4See, e.g., Ledet v. Ledet, 03-CA-537 (La. App. 5 Cir. 10/8/03), 865 So. 2d 762, 765.
  • 5See Babcock v. Martin, 2019-0326, p. 12 (La. App. 1 Cir. 10/24/19), 289 So. 3d 606, 614 (citing Leard v. Schenker, 2006-1116, p. 3 (La. 6/16/06), 931 So. 2d 355, 357); Evans v. Terrell, 27615-CA, p. 8 (La. App. 2 Cir. 12/6/95), 665 So. 2d 648, 653.
  • 6See Nat’l Council Juvenile & Family Court Judges, supra. For further discussion of the special requirements for mental health evaluators in PSFVRA cases, see Section 8.8.4.

8.3.9 Relocation Notification

8.3.9 Relocation Notification aetrahan Mon, 08/28/2023 - 14:54

The PSFVRA exempts abused parents from Louisiana’s relocation notification statute.1  This exemption also exists when an “order” has been issued pursuant to the Domestic Abuse Assistance Act, the Protection from Dating Violence Act, or La. Ch.C. art. 1564. A parent is also exempt if a restraining order, preliminary injunction, permanent injunction, or protective order prohibiting a person from harming or going near the other person is in effect, other than an injunction under La. R.S. 9:372.1 injunction.2

If a custody and visitation order already exists, however, your client may need to request that it be modified if the relocation prevents her from complying with the order’s visitation provisions.

  • 1La. R.S. 9:355.2(D)(2).
  • 2Id. Note that an injunction against abuse ancillary to divorce under La. R.S. 9:371 qualifies for exemption, but an injunction against harassment under La. R.S. 9:372.1 is not exempt.

8.3.10 Costs and Attorney Fees

8.3.10 Costs and Attorney Fees aetrahan Mon, 08/28/2023 - 14:55

The PSFVRA shifts costs and attorney fees to the party who has perpetrated abuse. 

Many perpetrators of abuse continue their harassment of the victim through protracted custody and visitation litigation. The PSFVRA discourages vindictive litigation by abusive former partners by mandating that all attorney fees and costs be paid by the perpetrator of family violence. The party who committed family violence must pay all attorney fees incurred by the victim while enforcing her rights under the Act, including attorney fees associated with defending against the abusive parent’s requests for increased visitation or custody modification. The perpetrator of abuse must pay the victim’s reasonable attorney fees even if he is the prevailing party in subsequent litigation.  The trial court is obliged to award attorney fees under this provision even if not pled by the non-abusing parent.

8.4 PSFVRA Standards

8.4 PSFVRA Standards aetrahan Mon, 08/28/2023 - 14:56

8.4.1 Required Findings

8.4.1 Required Findings aetrahan Mon, 08/28/2023 - 14:56

The custody and visitation provisions of the PSFRVA are triggered by finding that there is a “history of family violence.” The Act defines a “history of perpetrating family violence” as either one incident of family violence resulting in serious bodily injury or more than one incident of family violence.1

A petitioner may also invoke PSFVRA protections when a parent has subjected any of his or her children, stepchildren, or any household member to sexual abuse, or when a parent has willingly permitted another to abuse any of his children or stepchildren, despite having the ability to prevent the abuse.2

  • 1La. R.S. 9:364(A). Note that this definition resulted from a statutory amendment that occurred in response to a bad decision in Simmons v. Simmons, in which the court refused to apply the PSFVRA even though the husband admitted to hitting his wife several times – but never in the presence of the children and because he was “provoked” by his wife’s adultery. 26,414-CA (La. App. 2 Cir. 1/25/95), 649 So. 2d 799. The Simmons definition of history of family violence has been legislatively overruled. As noted by Hicks v. Hicks, the outdated Simmons test for history of family violence is wrong. 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261. Generally, cases on “history of family violence” decided before the 1995 amendment are likely to be wrong.
  • 2La. R.S. 9:364(A).

8.4.2 Definition of Family Violence

8.4.2 Definition of Family Violence aetrahan Mon, 08/28/2023 - 14:58

“Family violence” includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code, except negligent injury and defamation, committed by one parent against the other parent or any of the children.1  This definition of family violence tracks the definition of “domestic abuse” in the Domestic Abuse Assistance Act. The two definitions differ only in that the PSFVRA limits acts of “family violence” to acts perpetrated by one parent upon the other parent (as opposed to the various relationships between parties that can invoke application of the DAAA).2  Amendments made to La. C.C. art. 134(B) in 2018 appear to have erased this distinction, so that acts of domestic abuse against other household members or dating partners now also trigger the PSFVRA custody and visitation restrictions.3   If so, the change would supersede prior case law excluding incidents of abuse committed by a parent against a non-parent, such as a girlfriend or a stepmother.4

Because the definitions are the same, case law on what constitutes “domestic abuse” under the DAAA is controlling when determining “family violence” under the PSFVRA.5  “Family violence,” like domestic abuse, includes battery, even if merely offensive and not injurious; it also includes threats to injure without touching, and forced sex.6  The violence does not have to be frequent or continuous.7  The definition is subject to broad interpretation because of the “including but not limited to” language, but as in DAAA cases, courts are unlikely to apply the PSFVRA in cases that do not involve physical violence, threats, assault, or an offense against the person that constitutes a violation of the criminal code.8  Because stalking is an offense against the person that violates the criminal code, the Post-Separation Family Violence Relief Act should apply in intimate partner stalking cases, even in the absence of direct threats or physical violence.

Though courts will not usually apply the PSFVRA in cases that involve no threats of harm or physical violence, lawyers should consider whether some cases with less typical fact patterns still warrant the Act’s application. For example, in Cockheran v. Christopher, the Fourth Circuit affirmed the trial court’s application of the PSFVRA where one of the acts of “family violence” was the father’s attempt to control the mother by threatening to turn her over to a former sex-trafficker from whom she was hiding.9  There is a legitimate argument that, from the standpoint of effecting the Act’s protective purpose, abuse in the form of extreme control, coercion, and intimidation should sometimes be included within the meaning of the statute. Research suggests that control and coercion are stronger predictors of lethality and other negative outcomes for victims than are the frequency or severity of past physical abuse.10  So, a victim who has not been physically abused but who is not allowed to leave her home without her husband’s permission, who has been “punished” by abuse of a family pet, or whose activities are routinely monitored and restricted, may face lethality risks upon separation that would make the Act’s application consistent with its statutory purpose.

Even when a good faith argument exists for applying the Act’s protections in absence of physical abuse, these cases can sometimes present challenges and require expert testimony. Attorneys and their clients should carefully weigh the risk that the victim may lose credibility with a judge who could conclude that she is exaggerating the seriousness of her situation and making unsubstantiated claims of abuse. The abusive party may accuse the victim of making baseless claims to interfere with the parent/child relationship and mount a “parental alienation” defense. Cases involving claims of parental alienation can result in dangerous custody outcomes.11

  • 1La. R.S. 9:362(3); G.N.S. v. S.B.S., 35,348-CA (La. App. 2 Cir. 9/28/01), 796 So. 2d 739 (granting sole custody based on violence to child); Duhon v. Duhon, 01-0731 (La. App. 3 Cir. 12/12/01), 801 So. 2d 1263 (unjustified corporal punishment of child constituted “family violence”); Hollingsworth v. Semerad, 35,264-CA (La. App. 2 Cir. 10/31/01), 799 So. 2d 658 (a father’s abuse of the stepmother does not allow the mother to invoke the PSFVRA to restrict custody and visitation); Hudson v. Strother, 2017-1044 (La. App. 3 Cir. 5/2/18), 246 So. 3d 851 (a boyfriend’s abuse of the mother does not allow the father to invoke the PSFVRA to restrict custody and visitation). But see Merrells v. Dotray, 53,551 (La. App. 2 Cir. 7/8/20), 299 So. 3d 208, 214 (holding that La. C.C. art. 134(B) requires consideration of violence against prior dating partner under the 2018 amendments).
  • 2At least one court of appeal has concluded that this distinction no longer exists since Article 134 was amended in 2018. Article 134(B) now states that “in cases involving a history of committing family violence, as defined in La. R.S. 9:362, or domestic abuse, as defined in R.S. 46:2132,” visitation must be determined under La. R.S. 9:341 and La. R.S. 9:364. See Merrells, 53,551, 299 So. 3d at 214.
  • 3Merrells, 53,551, 299 So. 3d at 214 (finding that district court abused its discretion in awarding domiciliary custody to father under best interest test because under Article 134(B), trial court was bound to consider father’s prior conviction of domestic abuse battery against a dating partner and incident where he damaged mother’s front door and raised hand to threaten to hit her).
  • 4Hollingsworth, 35,264-CA, 799 So. 2d 658 (holding that a father’s abuse of the stepmother does not allow the mother to invoke the PSFVRA to restrict custody and visitation).
  • 5For further discussion, see Section 4.4.1.
  • 6See Hicks v. Hicks, 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261; Michelli v. Michelli, 93 CA 2128 (La. App. 1 Cir. 5/5/95), 655 So. 2d 1342; Harper v. Harper, 537 So. 2d 282 (La. App. 4 Cir. 1988).
  • 7Michelli, 93 CA 2128, 655 So. 2d 1142; Merrells, 53,551, 299 So. 3d at 214 (finding that district court abused its discretion in awarding domiciliary custody to father under best interest test where court failed to consider father’s prior conviction of domestic abuse battery against a dating partner and for incident where he damaged mother’s front door and raised hand to threaten to hit her).
  • 8Smith v. Smith, 44-663 (La. App. 2 Cir. 8/19/09), 16 So. 3d 643, 651 (holding the trial court did not err in refusing to apply the PSFVRA where evidence showed that each party provoked verbal and physical altercations and no serious bodily injury had occurred); Bourgeois v. Bourgeois, 16-676 (La. App. 5 Cir. 4/12/17), 218 So. 3d 684 (holding the trial court did not err in refusing to apply the PSFVRA where evidence showed that wife’s angry and violent behavior stemmed from being confronted with husband’s infidelity and instances did not continue post-separation).
  • 9Cockheran ex rel. Cockheran v. Christopher, 2021-0370, p. 3 (La. App. 4 Cir. 10/28/21), 331 So. 3d 389, 392.
  • 10Evan Stark, Rethinking Custody Evaluation in Cases Involving Domestic Violence, 6 J. Child Custody 287, 293 (2009); Jacquelyn Campbell, et al., Risk Factors for Femicide in Abusive Relationships, 93 Am. J. Pub. Health 1089 (2003). This study found that three factors (1) separation, (2) the presence of a weapon, and (3) the existence of control increased lethality risk nine-fold. The frequency and severity of past violence was a less accurate predictor of dangerousness. Id.
  • 11For further discussion of the misuse of “parental alienation” as a defense, see Section 8.8.3.

8.4.3 Best Interest Standard

8.4.3 Best Interest Standard aetrahan Mon, 08/28/2023 - 16:29

The best interest factors enumerated in La. C.C. art 134 do not apply once a finding of family violence triggers application of the PSFVRA.1  The “best interest” standard is not operative in a family violence case except in two specific situations. One situation in which the standard may be operative occurs after the parent with a history of family violence or domestic abuse has satisfied the requirements to request unsupervised visitation under La. R.S. 9:341(A). In order to obtain unsupervised visitation, that parent must show that unsupervised visits would be in the child’s best interest and would not cause physical, emotional, or psychological damage to the child. The second situation arises when the parent with a history of family violence or domestic abuse is seeking to overcome the custodial presumption and has already proven successful completion of a court-monitored domestic abuse intervention program, that he is not abusing alcohol or using illegal substances, and that the other parent’s absence, mental illness, substance abuse or similar issue relating to unfitness requires the abusive parent’s participation as a custodial parent.2

  • 1La. C.C. art. 134(B).
  • 2La. R.S. 9:364(B). For discussion on the necessity that the “best interest” factors in this situation must relate specifically to the custodial parent’s fitness, see Section 8.3.2. For discussion of this three-part test in a modification case, see Section 8.9.2.

8.4.4 Analyzing a PSFVRA Claim

8.4.4 Analyzing a PSFVRA Claim aetrahan Mon, 08/28/2023 - 16:30

Once a party pleads the PSFVRA, the court should use a logical procedure for determining whether it applies. The court should first examine each alleged incident of family violence to determine whether it was proved and, for each incident that was proved, whether it meets the definition of “family violence.” If any one incident proved by the petitioner resulted in serious bodily injury or if the petitioner proved more than one incident, she has met her burden of showing a “history of family violence” and the Act must apply.1

  • 1See Hicks v. Hicks, 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261.

8.4.5 “Mutual” Violence

8.4.5 “Mutual” Violence aetrahan Mon, 08/28/2023 - 16:31

Unfortunately, in many cases involving intimate partner violence, family courts treat victims as if they are mutually violent and equally responsible for family “conflict.” As a result, the court may find that both your client and her abusive former partner have a history of perpetrating abuse. The PSFVRA addresses this scenario. Where a court finds that both parents have a history of perpetrating abuse, it must award sole custody to the parent who is less likely to continue the family violence.1  Lawyers should be prepared to present evidence, testimony, and argument on this issue, should it become necessary during the litigation.

All case planning in domestic violence cases should anticipate that abusive former partners will allege that the victim is either the primary aggressor or mutually violent. Although anger is the prevailing emotional response to abuse, judges often believe that anger is inconsistent with the way “real victims” behave. When victims present as angry or resentful toward the partners who have abused them or when they admit to fighting back, many courts are quick to conclude they are mutually violent.2  Women of color – particularly Black women – are more often perceived as mutually violent, in part because of racist stereotypes.3  Pervasive cultural stereotypes that “real” victims are fearful and passive and suffer from “learned helplessness” contribute to this problem. Carefully consider how these issues will play out in your case, and plan accordingly.

  • 1La. R.S. 9:364(D).
  • 2Leigh Goodmark, When Is A Battered Woman Not A Battered Woman? When She Fights Back, 20 Yale J.L. & Feminism 75 (2008). Ironically, decades of judicial education programming have exacerbated this problem by promoting simplistic concepts of “learned helplessness,” and “battered women’s syndrome.” Both concepts tend to be presented in ways that essentialize the experiences of women subjected to abuse, pathologize the rational ways that women respond to abuse, and reinforce the false stereotype of a passive, white, and heterosexual victim. This article is a great resource for attorneys representing domestic violence survivors in civil litigation. Goodmark calls out some of the most common ways that lawyers seek to make their client’s courtroom narratives conform to unrealistic and harmful myths about victims and challenges us to collaborate with our clients to develop “counter stories” that more authentically reflect their experiences, beliefs, and actions.
  • 3Id.

8.4.6 Prior Family Violence

8.4.6 Prior Family Violence aetrahan Mon, 08/28/2023 - 16:35

You may sometimes be faced with a situation where you wish to introduce evidence of family violence that occurred before a prior considered decree or stipulated judgment. In custody cases, it is common for victims to have previously litigated or negotiated a custody case without raising issues of domestic violence. Many family law attorneys do not adequately advise their clients about domestic violence in custody litigation, resulting in stipulated or considered decrees that fail to address domestic violence or victim and children safety.

In a case for custody modification, the court will determine whether to admit evidence of abuse that predates a prior custody decree on a case-by-case basis.1  The evidence should neither be automatically excluded nor automatically admitted.2  Instead, the evidence should be admitted if it is relevant and material and involves an issue that the parties did not have a “full and fair opportunity to litigate” in the prior proceeding.3  Where issues of abuse have never been meaningfully considered, the interests of justice and the best interest of the child would require the Court’s consideration. This logic rings particularly true in cases where the abused parent was awarded primary custody in a prior consent decree, so it was not necessary that she litigate the issue of abuse. If, thereafter, the parent with a history of family violence seeks increased custodial access, equitable principles and the best interest of the children require examination of the abuse.

For custody cases that were “actually adjudicated,” res judicata may bar specific claims,4  but cannot bar modification. In Louisiana, judgments awarding custody are “always subject to modification and thus are never final.”5   Courts have opined that children and family circumstances will change throughout a child’s lifetime, so in general, the doctrine of res judicata does not apply to child custody cases.6  To the contrary, the court is bound to consider all matters relevant to the best interests of the child, including parental conduct that occurred prior to the last custody decree.7

Even if, however, res judicata applied to custody cases, it would not apply where the interests of justice are not served by its use. Louisiana’s res judicata statute explicitly contemplates equitable application of the doctrine. La. R.S. 13:4232(1) creates a provision for “exceptional circumstances,” and the official comments to the statute explain, “this discretion is necessary to allow the court to balance the principle of res judicata with the interests of justice.”8

  • 1Raney v. Wren, 98 CA 0869 (La. App. 1 Cir. 11/6/98), 722 So. 2d 54, 58.
  • 2Id.
  • 3Id. at 57 (citing Smith v. Smith, 615 So. 2d 926, 931 (La. App. 1 Cir. 1993)). The trial court erred in a custody modification case by excluding evidence of physical and verbal abuse that occurred prior to the stipulated custody judgment. Id. The court found that the trial court erred because the parties did not have previous opportunity to litigate the issue. Id.
  • 4La. R.S. 13:4232(3); see also Redman v. Bridgefield Casualty Insurance Co., 11 CA 651 (La. App. 5 Cir. 2/28/2012), 88 So. 3d 1087, 1092.
  • 5Kaptein v. Kaptein, 2019-0784, p. 3 (La. App. 4 Cir. 1/22/20), 289 So.3d 1198, 1200.
  • 6La. R.S. 13:4232. The Official Comments to section 4232 explain that “the general principle of res judicata is subject to the exceptions set forth in La. R.S. 13:4232 and to any other exceptions that may be provided for in the substantive law as, for example, in cases of family matters.” See also La. R.S. 13:4232(3) (excepting matters incidental to divorce from doctrine of res judicata except as to matters actually adjudicated); Hulshoff v. Hulshoff, 11-1055 (La. App. 3 Cir. 12/7/11), 81 So. 3d 57; Granger v. Granger, 11-77 (La. App. 3 Cir. 6/15/11), 69 So. 3d 666; Kleiser v. Kleiser, 619 So. 2d 178 (La. App. 3 Cir. 1993); Hansel v. Hansel, 2000-CA-1914 (La. App. 4 Cir. 11/21/01), 802 So. 2d 875.
  • 7La. R.S. 13:4232(A)(1).
  • 8Id.

8.5 Limitations on Courts

8.5 Limitations on Courts aetrahan Tue, 08/29/2023 - 09:15

8.5.1 Mandatory Application

8.5.1 Mandatory Application aetrahan Tue, 08/29/2023 - 09:15

If the petitioner proves a history of family violence, the court must apply the protections of the PSFVRA.1  Louisiana’s courts of appeal have consistently admonished trial courts on the Act’s mandatory application.2  Even more, the trial court may not avoid application of the Act’s protections by refusing to decide the question of whether there is a “history of family violence.”3  Once the Act has been pled, all custody determinations must be predicated on a finding about family violence; the court may not even issue an interim or temporary custody order without first determining that issue.4  Even where the PSFVRA has not been pled, it is improper to make a custody determination before resolving outstanding pleadings alleging domestic violence, because related DAAA proceedings could determine whether the PSFVRA applies.5

La. C.C. art. 134(B) requires that cases involving family violence be determined in accordance with the PSFVRA “whether or not a party has sought relief under any applicable law.”6  This provision was adopted in 2018 and supersedes prior conflicting case law holding that the Act’s application was discretionary if the Act had not been pled.7  An appellate court may render judgment applying the Act, where the trial court findings show a history of family violence.8

  • 1See La. C.C. art. 134(B). Although the trial court has discretion in its factual determination on “family violence,” once the finding has been made, the court is bound to apply the Act.
  • 2Barak v. Saacks, 2021-0756 (La. App. 4 Cir. 10/12/22), 2022 WL 6944282, at *14, writ denied, 2022-01734 (La. 1/11/23) (reversing trial court that made finding that there was a history of family violence but awarded father unsupervised visitation before completion of court-monitored batterer’s intervention program); see Durand v. Rose, 2022-0300 (La. App. 4 Cir. 9/15/22), 2022 WL 4244409, writ denied, 2022-01727 (La. 1/18/23), 353 So. 3d 127; see also Melancon v. Russell, 18-48 (La. App. 5 Cir. 10/17/18), 258 So. 3d 955 (PSFVRA relief becomes operable once there is a finding of a history of family violence, regardless of whether specific Act pled); Ledet v. Ledet, 03-CA-537 (La. App. 5 Cir. 10/8/03), 865 So. 2d 762 (reversing and remanding for a determination on family violence); Lewis v. Lewis, 34,031-CA (La. App. 2 Cir. 11/3/00), 771 So. 2d 856; Hicks v. Hicks, 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261 (reversing custody award to father where uncontroverted evidence proved at least on act of family violence resulting in serious bodily injury, but trial court failed to apply the act); Crowley v. Crowley, 96-CC-2413 (La. 10/11/96), 680 So. 2d 661 (reversing trial court that made finding that there was a history of family violence but did not apply the act’s requirement that the victim be awarded sole custody).
  • 3Ledet, 865 So. 2d 762. In Ledet, the trial court refused to hold an evidentiary hearing on the abuse allegations and suspended ruling on the abuse allegations for sixty days. The appellate court ordered the trial court to (1) hold and complete a hearing on the “family violence” allegations within fifteen days, (2) make findings on the “family violence” allegations, and (3) set custody in accordance with those findings and the PSFVRA. Id.
  • 4Id.; Ford v. Ford, 01-387 (La. App. 3 Cir. 10/17/01), 798 So. 2d 316; McFall v. Armstrong, 10-1041 (La. App. 5 Cir. 9/13/11), 75 So. 3d 30, 40.
  • 5La. C.C. art. 134(B); see also McFall, 75 So. 3d at 40 (reversing custody determination made before Domestic Abuse Assistance Act (DAAA) petition was resolved and holding that the DAAA proceeding will determine whether the court is mandated to apply the Post-Separation Family Violence Relief Act).
  • 6La. C.C. art. 134(B)
  • 7Melancon v. Russell, 18-48 (La. App. 5 Cir. 10/17/18), 258 So. 3d 955 (PSFVRA relief becomes operable once there is a finding of a history of family violence, regardless of whether specific Act plead). But see Nguyen v. Lee, 07-CA-81 (La. App. 5 Cir. 5/15/07), 960 So. 2d 261, 265 (PSFVRA cannot be pled for the first time on appeal).
  • 8Durand, 2022-0300, 2022 WL 4244409 (granting sole custody to mother and reversing trial court that made finding that there was a history of family violence but awarded father joint custody despite no evidence being presented that father had completed treatment program as required by the PSFVRA).

8.5.2 Uncontroverted Evidence

8.5.2 Uncontroverted Evidence aetrahan Tue, 08/29/2023 - 09:25

In most cases, a court cannot refuse to make a finding of “family violence” if the evidence is uncontroverted. Even though the trial court’s “family violence” determination is entitled to great weight and will not be disturbed on appeal absent clear abuse of discretion,1  the trial court must apply the Act as written and may not impose a higher burden on the petitioner than that demanded by the Act.2  Thus, where the victim offers unrefuted testimony about specific acts of family violence, she does not also have to produce corroborating evidence.3  The uncontradicted evidence must be taken as true in the absence of circumstances in the record casting suspicion on its reliability.4  Of course, as a practical matter, lawyers should introduce all corroborating evidence available.

As a result, the court may grant relief on the victim’s testimony alone. Often, a victim is the only witness to her abuse. The burden of proof for family violence is on the victim. However, this burden can be met by the victim’s testimony if the court finds her credible.5  Of course, corroborating evidence is very helpful in what are often referred to as “she said/he said” cases.

  • 1Buchanan v. Langston, 36,520 (La. App. 2 Cir. 9/18/02), 827 So. 2d 1186; Melancon v. Russell, 18-48 (La. App. 5 Cir. 10/17/18), 258 So. 3d 955 (citing Dufresne v. Dufresne, 08-215 (La. App. 5 Cir. 9/16/08), 992 So. 2d 579, 586).
  • 2Hicks v. Hicks, 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261, 1266.
  • 3Id. at 1264.
  • 4Id. (citing Chargois v. Guillory, 97–439 (La. App. 3 Cir. 10/29/97), 702 So. 2d 1068; Donahoe v. Jefferson Council on Aging, 04-CA-178 (La. App. 5 Cir. 10/26/04), 887 So. 2d 549, 552.
  • 5See, e.g., Porter Parson v. Parsons, 2009-2120 (La. App. 1 Cir. 6/11/10), 2010 WL 2342759 (protective order affirmed despite fact that husband and two of his friends denied the abuse); see also McCann v. McCann, 09-1341 (La. App. 3 Cir. 3/10/10), 33 So. 3d 389, 395.

8.6 Visitation under the PSFVRA

8.6 Visitation under the PSFVRA aetrahan Tue, 08/29/2023 - 09:29

8.6.1 Supervised v. Unsupervised Visitation

8.6.1 Supervised v. Unsupervised Visitation aetrahan Tue, 08/29/2023 - 09:29

Legislative amendments in 2018 eased visitation restrictions on parents with a history of family violence.1  Prior to the change, a parent with a history of family violence was allowed only supervised visitation, and “completion of” a treatment program for batterers was a pre-condition to even supervised visits.2  Now, a parent with a history of family violence may be awarded supervised visitation without first satisfying any pre-conditions. It is important to note that the change makes supervised visits permissible without pre-conditions; it does not create an entitlement of supervised visits for the parent with a history of abuse. Nothing in the statute would prevent a court from imposing pre-conditions to supervised visits or even denying supervised visits altogether, if necessary to protect the child.3

Successful completion of a 26-week batterer intervention program since the last incident of abuse is now one of several pre-conditions to unsupervised visits.4  Importantly, the 2018 revisions created an explicit requirement that the treatment program have been completed “since the last incident of domestic violence or family abuse.” This addition is helpful to lawyers representing survivors because many abusive former partners have previously completed batterer intervention classes as the result of prior arrests or convictions for abuse. Even if this requirement did not exist, acts of abuse occurring after completion of a treatment program could be proof that the treatment was not “successful.”

In addition to the requirement of batterer intervention, at a hearing to decide unsupervised visitation the court must consider evidence of the abusive parent’s current mental health condition, the possibility of continuing abuse, and whether the perpetrating parent has proven that visitation would be in the best interest of the child and would not cause physical, emotional, or psychological damage to the child. Even if these conditions are satisfied, the court may continue the supervision and impose any restrictions, conditions, and safeguards necessary to minimize any risk of harm to the child.5  A parent’s history or pattern of abuse against previous dating or intimate partners would be relevant to the issue of whether there is a possibility of continuing abuse, even if abuse of other dating partners was not considered in the original PSFVRA determination.6  Additionally, an abusive party’s unwillingness to acknowledge the abuse or the harm it caused has direct relevance to the issue of whether expanded visitation could cause emotional or psychological damage to the child.

For reasons described throughout this chapter, it may never be in the best interest of a child who has been subjected to physical, sexual, or emotional abuse to have unsupervised visitation with the abusive parent. Continued or unmonitored contact with an abusive parent can cause confusion and fear, especially in cases where the abusive parent refuses to acknowledge the abusive behavior and wants to ignore that it ever happened. Lawyers may consider asking that such acknowledgement, in a therapeutic setting with an expert in trauma and abuse, be made a pre-condition to even supervised visits. Whether the child was the subject of abuse, or witnessed it against a parent, it can take a long time (and a lot of therapy) before unsupervised visitation is in a child’s best interest.

Note that many attorneys conflate or confuse the PSFRVA requirements for overcoming the custodial presumption with the requirements for obtaining unsupervised visits. The tests are different, and the burden to overcome the custodial presumption in favor of the abused parent is much higher than the burden to request unsupervised visits. Some lawyers who represent the party with a history of abuse will try to take advantage of this confusion and assert a lower burden for overcoming the custodial presumption.

  • 1La. R.S. 9:341.
  • 2La. R.S. 9:364(C) (2011).
  • 3La. R.S. 9:341(A).
  • 4La. R.S. 9:341.
  • 5La. R.S. 9:341(A).
  • 6See generally Merrells v. Dotray, 53,551 (La. App. 2 Cir. 7/8/20), 299 So. 3d 208, 214 (father’s prior conviction of domestic abuse battery against a previous dating partner relevant to risk of continuing abuse).

8.6.2 Selecting a Supervisor

8.6.2 Selecting a Supervisor aetrahan Tue, 08/29/2023 - 10:27

Selecting an appropriate visitation supervisor can present practical challenges for litigants and attorneys. The PSFVRA does not allow supervision by people associated with the party who is abusive, and it is generally not safe or appropriate for a victim’s friends or family to supervise. The best option is usually a supervised visitation center. In communities that lack supervised visitation centers (i.e., most communities), lawyers and clients have limited options. Petitioners may specifically request that the court appoint a police officer or competent professional as the supervisor.1  Supervisors can be police officers with some sensitivity to juvenile or domestic issues. These officers may be more willing and able to intervene to prevent harm to the child during a visit. Social workers in your community may also be available for supervision. It is a good idea to have a specific list of potential supervisors and their contact information available at the hearing on custody. Otherwise, the court may appoint a supervisor with whom you are unfamiliar and who may be ill-suited to supervise in a family violence case because they lack understanding about the physical and emotional risks to children.

When selecting a supervisor, keep in mind that people who abuse their intimate partners can be highly effective at manipulating and co-opting mental health and social work professionals, including visitation supervisors. Most mental health professionals have little, if any training in domestic violence, and even those that do rarely have enough to meaningfully understand basic dynamics of abuse.2  Parents with a history of perpetrating abuse are likely to be on their best behavior in settings where they know they must be. And children are often delighted to see even an abusive parent in a setting where they are safe and where “good daddy” shows up to see them. Courts often give far too much weight to testimony about parent-child observations in a supervised setting; information from these visits rarely leads to relevant or probative evidence in abuse cases.

For this reason, lawyers should be cautious about eliciting professional opinions from even trained visitation supervisors and should seek to exclude the testimony if offered by supervised party. A visitation supervisor’s testimony is usually not relevant to any issue that would be before the court, other than the abusive party’s violation of orders. The mere fact that a parent with a history of perpetrating abuse does not abuse in a supervised visitation setting, or that a child enjoys the parent’s company in a safe supervised setting has no probative value on issues such as whether there is a history of past abuse, whether there is a likelihood of future abuse, or whether unsupervised visitation is in a child’s best interest.

  • 1La. R.S. 9:362(7).
  • 2Joan S. Meier, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 J. Gender, Soc. Pol’y, & L. 657, 708 (2003).

8.7 Treatment Programs

8.7 Treatment Programs aetrahan Tue, 08/29/2023 - 10:29

8.7.1 General Principles

8.7.1 General Principles aetrahan Tue, 08/29/2023 - 10:29

For unsupervised visits, or to overcome the custodial presumption, the PSFVRA requires that a parent with a history of perpetrating domestic violence successfully complete a court-monitored domestic abuse intervention program as defined in R.S. 9:362. The program must have been completed since the last incident of abuse.1

A qualifying program and provider must meet the following standards:

  • The program must be comprised of at least twenty-six in-person sessions.
  • The program must follow a model designed specifically for perpetrators of domestic abuse, and must be monitored by the court.2
  • The provider must have experience working directly with perpetrators and victims of domestic abuse.
  • The provider must have experience facilitating batterer intervention groups.
  • The provider must have training in the causes and dynamics of domestic violence, characteristics of batterers, victim safety, and sensitivity of victims.3

If a client’s abusive former partner seeks a visitation modification under this provision, the modification may be contested on multiple grounds: whether the treatment program satisfies the statutory definition, whether the facilitator/provider possesses the requisite experience and expertise, and whether there is reason to believe the treatment was successful.

  • 1La. R.S. 9:364(B)(1).
  • 2La. R.S. 9:362.
  • 3La. R.S. 9:362(3).

8.7.2 Challenging the Program

8.7.2 Challenging the Program aetrahan Tue, 08/29/2023 - 10:32

Louisiana’s statute adopts standards associated with what is known as the “Duluth” model of batterer intervention.1  While the Duluth model is the most universally accepted among a variety of potential models for batterer intervention, studies show that it is imperfect and often ineffective.2  Research on the effectiveness of batterer intervention programs is controversial and sometimes conflicting.3  In recent years, many alternative models have emerged, including models that seem to have successfully incorporated principles of restorative justice.4  But the research on these emerging models is similarly controversial. For these reasons, lawyers should be prepared to address the unrealistic expectations clients sometimes have about the effectiveness of the batterer intervention their former partners are ordered to participate in. Clients are often overly optimistic about the prospects of behavioral change.

Before changes to the law in 2014, treatment program requirements were more ambiguous, and some courts accepted “anger management” classes as a substitute for batterer intervention. Lawyers should still be prepared to aggressively challenge whether a treatment program meets the statutory requirements. Many abusive former partners or their attorneys still attempt to obtain unsupervised visits by producing documents showing participation in “anger management” counseling or printable “certificates” showing completion of an on-line course. These documents should be excluded as unauthenticated hearsay. Even if admissible, they fail to satisfy the statutory requirements.5

As explained by the dissenting opinion in DOH v. TLH, which was decided before the 2014 changes, anger management programs do not provide meaningful rehabilitation for batterers.6  Anger management is not a course of therapy specifically designed for perpetrators of domestic violence, and it is not recognized as such by experts in domestic violence. If a therapist conflates the two types of therapies, that fact alone suggests that he or she is untrained in domestic violence. Moreover, many experts believe that anger management programs increase danger to victims. The United States Department of Justice Office on Violence Against Women, which funds domestic violence programs nationwide, asserts that the practice of substituting anger management for batterer intervention compromises victim safety and allows perpetrators to escape responsibility.7

  • 1What is the Duluth Model?, Domestic Abuse Intervention Programs.
  • 2Amie Zarling & Dan Russel, A Randomized Clinical Trial of Acceptance and Commitment Therapy and the Duluth Model Classes for Men Court-Mandated to a Domestic Violence Program, 90 J. Consulting & Clinical Psychology 326, 327 (2022); L.G. Mills, et al., The Next Generation of Court-Mandated Domestic Violence Treatment: A Comparison Study of Batterer Intervention and Restorative Justice Programs, 9 J. Experimental Criminology 65, 68 (2013).
  • 3Shih-Ying Cheng, et al. Compared to What? A Meta-Analysis of Batterer Intervention Studies Using Nontreated Controls or Comparison, 22 Trauma, Violence, & Abuse 427, 497, 505 (2021).
  • 4Mills, et al., Next Generation, supra, at 69.
  • 5On the statutory requirements for these programs, see Section 8.7.
  • 6D.O.H. v. T.L.H., 01-174 (La. App. 3 Cir. 10/31/01), 799 So. 2d 714, 722–32 (Woodard, J., dissenting).
  • 7See Off. of Violence Against Women, U.S. Dep’t of Just., FY 2023 Solicitation Companion Guide: OWW Grant Programs & Post-Award Information.

8.7.3 Challenging the Facilitator

8.7.3 Challenging the Facilitator aetrahan Tue, 08/29/2023 - 10:39

In addition to challenging the program itself, lawyers should carefully examine the training and qualifications of the program’s facilitator(s). Very few mental health professionals possess the training required by this statute.1  In the past, trial courts have primarily examined only the program itself, but this statutory provision also puts the burden on the defendant to prove the credentials of the specific program therapist or facilitator with whom they worked during their 26 weeks of therapy. The provider should be subpoenaed to court and subject to cross-examination. It is unclear how the parent with a history of abuse could meet his burden without testimony from the provider.2

  • 1La. R.S. 9:362(3).
  • 2See D.O.H. v. T.L.H., 01-174 (La. App. 3 Cir. 10/31/01), 799 So. 2d 714, 722–32 (Woodard, J., dissenting).

8.7.4 Successful Completion

8.7.4 Successful Completion aetrahan Tue, 08/29/2023 - 10:43

As described above,1  some studies suggest that burgeoning court reliance on batterer intervention programs is problematic because they largely fail to prevent or even reduce future violence.2  Based on the research available, it is more likely than not that the parent with a history of committing family violence will not meaningfully change his behavior because of the 26-week program he is ordered to participate in. This means that lawyers should be prepared to assert that the abusive parent’s completion of batterer’s intervention has not been “successful” as required under the PSFRVA.

“Successful” completion clearly requires more than mere attendance. Any statutory interpretation that imposes only the formal requirement of attendance belies the clear legislative purpose of the Act, the clear language of the statute, and renders the word “successful” meaningless.  A certificate of completion showing attendance at batterer intervention is not indicative of “successful completion” as a matter of fact or law.

Presumably, “successful” completion requires that a party not only meet the formal requirements of attendance and cooperation, but also show that he accepts responsibility for his abusive behavior and has gained insight into its impact on his former partner, his children, and his parenting behavior; these are key elements of the batterer intervention curriculum. So, if the abusive party “completes” a course by means of attendance but continues to blame the victim and deny the harm of his abusive behavior, the “success” of his therapy should be challenged.

An expert in batterer intervention can testify that the continuing denial of abuse is evidence that treatment has not been successful. He or she should also be able to provide examples of behavior that would reflect meaningful reform. When testifying on cross-examination, the parent with a history of violence is rarely willing to admit to their past violence or acknowledge its impact on those harmed by it. Instead, they will continue to minimize, deny, and blame, a tactic associated with unreformed domestic violence perpetrators. A lawyer who specializes in representing survivors can conduct a much more effective cross-examination of an abusive party if he or she has taken the time to learn about the goals and curriculum associated with batterer intervention programs.

  • 1See Section 8.7.2.
  • 2Michael Rempel, Batterer Programs and Beyond, in 1 Violence Against Women in Families and Relationships 180 (Evan Stark & Eve Buzawa. eds., 2009). Given the discouraging evidence on program efficacy, some experts suggest that batterer intervention programs should be used to promote a more achievable goal of accountability, rather than rehabilitation. Id. at 188.

8.8 Custody Evaluators

8.8 Custody Evaluators aetrahan Tue, 08/29/2023 - 10:45

8.8.1 General Principles

8.8.1 General Principles aetrahan Tue, 08/29/2023 - 10:45

Appointing a custody evaluator is unlikely to help in a family violence case and can often make things worse for victims and their children. Although most family attorneys simply capitulate to evaluator appointments—or even ask for them—lawyers representing victims should be especially weary. As explained below,1  the appointment of an evaluator makes it more likely that the parent with a history of abuse will be awarded child custody.

Realistically, it is not easy to avoid the appointment of an evaluator in some custody cases. But the following sections explain why lawyers should try and provide some basic tools and arguments to help.

8.8.2 Risks of Appointment

8.8.2 Risks of Appointment aetrahan Tue, 08/29/2023 - 10:46

A growing body of studies suggests that the appointment of a custody evaluator makes it less likely that family courts will respond appropriately to reports of abuse in custody cases.1  Some experts have concluded that the increasingly frequent appointment of custody evaluators and guardians ad litem is a principal reason that abusers routinely win custody.2  Many, if not most, custody evaluators lack meaningful training and expertise in even basic dynamics of domestic violence; they are unfamiliar with reputable professional literature in the field, and do not believe that domestic violence is an important factor to consider in making custody recommendations.3  In fact, a great deal of evidence suggests that evaluators are biased against believing reports of abuse because they are unaware that contested custody cases have much higher rates of domestic violence than uncontested cases.4  The National Council of Juvenile and Family Court Judges cautions against using custody evaluations in abuse cases and has published a guide for judges that explains the reasons.5  The guide is an excellent resource for attorneys opposing the appointment of an evaluator in domestic violence cases.

General mental health evaluations and psychological testing in domestic violence cases present similar problems. Many custody evaluations include both. Psychological testing tends to normalize abusers and pathologize victims.6  Domestic violence is not a mental health problem, and abusers typically appear “normal” in response to psychological testing and evaluation.7  People subjected to abuse, on the other hand, can present poorly in mental health evaluations that do not properly account for their experiences of abuse and are done by someone who lacks expertise in trauma and abuse. A poorly conducted mental health evaluation of a victim suffering from the effects of abuse will usually pathologize her normal responses.8  It is common for some psychological testing to result in victims being labeled anxious, paranoid, “histrionic,” borderline personality disordered, or even schizophrenic.9  And once an evaluator improperly labels a victim with a personality disorder, both the evaluator and the court sometimes conclude that the “conflict” between the parties is attributable to the “disorder,” not the abuse.10

Moreover, courts often give disproportionate weight to psychological testing because they wrongly assume that psychological testing is probative for determining whether someone is a perpetrator or victim of abuse, or for determining parenting capacity. No psychological testing is designed for these purposes. Even more, poorly trained mental health professionals are unlikely to connect a victim’s psychological presentation to the effects of abuse, or to recognize symptoms of Post-Traumatic Stress Disorder that can make victims seem less credible during the evaluation process and while testifying.11  Typically, this happens when victims appear to overreact to issues that seem “trivial” to an outside observer, when they lack emotional affect when describing violence, or when they giggle inappropriately.12  Similarly, poorly trained professionals can also wrongfully attribute trauma-related memory problems to a lack of credibility, such as when a victim has difficulty recounting events chronologically.13  When mental health professionals fail to properly contextualize these behaviors, they reinforce the court’s tendency to attribute them to a lack of credibility.

For all of these reasons, attorneys representing victims may need to oppose an evaluation, or at the very least, oppose an evaluation that includes psychological testing that was not designed to be used in the context of either a custody dispute or trauma. Though most psychological testing in this context evades meaningful scrutiny by lawyers and judges, there are persuasive legal arguments to exclude psychological testing, because the tests most used by evaluators lack scientific validity for use in the context of custody disputes or abuse.14

  • 1Evan Stark, Rethinking Custody Evaluation in Cases Involving Domestic Violence, 6 J. Child Custody 287, 299 (2009).
  • 2Id.; Joan S. Meier, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 J. Gender, Soc. Pol’y, & L. 657 (2003).
  • 3Stark, Rethinking, supra, at 298–99; Meier, supra, at 708; see Daniel G. Saunders, et al., Beliefs and Recommendations Regarding Child Custody and Visitation in Cases Involving Domestic Violence 22 Violence Against Women 651, 732-34 (2016); see Jason D. Hans, et al., Effect of Domestic Violence Allegations on Custody Evaluators’ Recommendations, 28 J. Fam. Psychology 957, 963–65 (2014).
  • 4Meier, supra, at 708. Ironically, many evaluators express skepticism about abuse allegations in “high conflict” cases, but fail to recognize that highly contested custody cases do in fact involve higher rates of abuse because batterers are more likely to engage in protracted custody litigation to punish their victims. Id.
  • 5Clare Dalton, et al., Nat’l Council Juvenile & Family Court Judges, Navigating Custody & Visitation Evalutions in Cases with Domestic Violence: A Judge’s Guide (2006).
  • 6Meier, supra, at 712–13.
  • 7Stark, Rethinking, supra, at 296.
  • 8Meier, supra, at 712–13.
  • 9Nancy Erickson, Use of the MMPI-2 in Child Custody Evaluations Involving Battered Women: What does Psychological Research Tell Us?, 39 Fam. L.Q. 87, 89 (2005).
  • 10Id.
  • 11Meier, supra, at 691.
  • 12Id. at 691–92.
  • 13For a quick and easy primer on trauma and memory, see mediaco-op, Trauma and the Brain, YouTube (Sept. 21, 2015).
  • 14Meier, supra, at 712–14.

8.8.3 Parental Alienation Claims

8.8.3 Parental Alienation Claims aetrahan Tue, 08/29/2023 - 10:57

The use of custody evaluations in abuse cases makes it much more likely that the parent with a history of abuse will benefit from inadmissible and discredited “parental alienation” theories.  A 2023 United Nations report described “parental alienation” as a “highly gendered” pseudo-psychological concept that has gained traction in family courts globally, despite having been rejected by the relevant medical, psychiatric, and psychological communities.1  As explained in the report, “[t]here is no commonly accepted clinical or scientific definition of ‘parental alienation’. Broadly speaking, parental alienation is understood to refer to deliberate or unintentional acts that cause unwarranted rejection by the child towards one of the parents, usually the father.”2  Perpetrators of abuse invoke “parental alienation” in custody cases as a way of discrediting legitimate reports of abuse—by accusing the abused parent, or the protecting parent of an abused child, of coaching or poisoning the child against them.3  Some states, like Louisiana, have adopted “friendly parent” provisions in their child custody statues that abusers often invoke when making parental alienation claims, asserting that the parent who is trying to protect a child is an “unfriendly” parent who is unwilling to facilitate a relationship with the other parent.4  The U.N. report provides a clear, comprehensive overview of “parental alienation” theory, its use by domestic violence perpetrators in family courts, and the devastating extent to which it has endangered victims of domestic violence and their children.5

The first thing lawyers need to know about “parental alienation” theory is that it is not a mental health diagnosis, it is a legal defense. The defense strategy involves accusing the abused or protecting parent of “parental alienation” if a child reports abuse to her or a third party or the parent who has been subjected to abuse seeks visitation or contact restrictions on the abusive parent. Under parental alienation theory, a child’s report of abuse, her alignment with the safe non-abusive parent, or her rejection of the abusive parent, is attributed not to the child’s experiences of abuse but to a mother who is vindictive and has “poisoned” a child against their father.6

The defense is highly effective, in part because the harder the mother tries to prove the abuse or protect the child, the stronger the abuser’s alienation claim becomes.7  For example, if the child continues to report abuse after being disbelieved, the reports become evidence of continued brainwashing and the mother’s recalcitrant position; if the child’s therapist opines that the child is abused, the therapist is demeaned as biased and contributing to the brainwashing at the mother’s behest; if the mother seeks to have her child professionally evaluated, her conduct is labeled medical or psychological abuse; if the mother provides reassurance or guidance to the child about how to distinguish between healthy relationships and abuse, or does anything to acknowledge how the child’s experiences with or exposure to abuse has impacted them, the mother is accused of undermining the other parent. “High-conflict” litigant has become a code word that courts and custody evaluators often use for victims who fight for appropriate restrictions on a dangerous parent.  Ironically, mothers who fail to respond appropriately to their children’s reports of abuse and fail to seek out treatment or assessment, risk losing their children for failure to protect. Because any course of action can be used against them, the “parental alienation” defense creates a legal “catch-22” for protecting parents of abused children.

The parental alienation defense is highly gendered and is especially effective against victims of abuse because of the way it plays into cultural tropes about vindictive women. It shifts the burden onto victims to show that they are not alienating the children, while the party making the alienation accusation need only prove that the child is afraid of them or aligned with the other parent. The party alleging alienation need not prove any actual conduct by the parent accused of alienation. Instead, they show only that the child disclosed abuse, aligned with the parent accused of alienation, or is fearful of the parent accused of abuse and then the alienation is presupposed. In other words, the evidence of abuse is the evidence of alienation.

The parental alienation defense is delivered to family courts primarily through testimony from custody evaluators who label victims “unfriendly parents” or “alienators” when they seek restrictions on an abusive parent. From a legal standpoint, testimony about parental alienation syndrome (or related parental alienation theories named differently) should be excluded under evidentiary standards for admissibility because it is not supported by empirical science and has been rejected by researchers.8  But from a practical standpoint, most courts conduct little evidentiary gatekeeping for custody evaluations or the flawed unscientific theories they rely upon, like parental alienation. So, attorneys should expect resistance from family courts if they contest custody evaluations or challenge the scientific validity of the testing and theories relied upon by evaluators. Courts routinely rely on concepts of parental alienation to find allegations of abuse not credible.

It is important to note that the unscientific “parental alienation” theories espoused by many evaluators differ from legitimate psychological concepts of alignment, estrangement, and alienation. Some parents do engage in behavior that denigrates the other parent and damages the relationship between the child and the other parent.9  In fact, this type of conduct is a prevalent feature of the parenting style seen in batterers.10  But instead of relying on testimony about a mystery syndrome that presupposes its conclusion, lawyers and experts should prove the conduct that the party is accused of engaging in. In other words, lawyers representing victims should present evidence and testimony to prove the ways the abusive parent deliberately undermines the victim’s parenting and denigrates her to the children—and avoid relying on unscientific theories that are harmfully deployed against victims.

  • 1Reem Alsalem (Special Rapporteur on Violence Against Women and Girls, Its Causes and Consequences), Custody, Violence Against Women and Violence Against Children, U.N. Doc. A/HRC/53/36 (Apr. 13, 2023).
  • 2Id. at 3.
  • 3Joan S. Meier, The Misuse of Parental Alienation Syndrome in Custody Suits, in 2 Violence Against Women in Families and Relationships 147 (Evan Stark & Eve Buzawa. eds., 2009). At most, parental alienation is a legal hypothesis to explain a problem in a parent-child relationship. Id. at 150. The theory is not supported by empirical evidence and has been broadly discredited as a scientific theory. Id.
  • 4See La. C.C. art. 134(12) (requiring that courts consider in awarding custody “[t]he willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child’s safety or well-being while in the care of the other party” (emphasis added). The italicized “except” clause above resulted from a recent amendment, which presumably makes it harder for an abuse perpetrator to use the statute against a victim parent or protecting parent.
  • 5Alsalem, supra.
  • 6Id. at 148.
  • 7Id. at 149–50.
  • 8See Nat’l Council of Juvenile & Family Court Judges, Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide (2006).
  • 9Cf. La. C.C. art. 134(A)(12) (requiring that courts consider when evaluating custody “[t]he willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child’s safety or well-being while in the care of the other party”). Note that the provision does not apply in domestic abuse cases. See La. C.C. art. 134(B).
  • 10Lundy Bancroft, et al., The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics 156 (2d ed. 2012).

8.8.4 Opposing Appointment

8.8.4 Opposing Appointment aetrahan Tue, 08/29/2023 - 11:06

In a “family violence” case, lawyers should usually oppose the appointment of a custody evaluator as premature, at least until the court has ruled on the allegations of “family violence.” In many cases, custody evaluators serve little function beyond substituting their own credibility determinations for those of the court. The presentation of testimony and evidence is the best way to determine whether abuse has occurred, and only the court should make credibility determinations regarding allegations of abuse. Psychological testing, mental health evaluations, and custody evaluations are not scientifically valid ways to determine whether someone is abused or an abuser. Once the abuse has been proven, the PSFRVA’s mandatory custody provisions are triggered and the mental conditions of the parties or the “best interest” assessments of evaluators should not be at issue.

A contradictory hearing to determine good cause should take place before a custody evaluator is appointed.1  A request for mental health evaluations is governed by La. R.S. 9:331, La. C.C.P. art. 1464, and, in PSFVRA cases, La. R.S. 9:365. These statutes require that evaluations be ordered only for good cause shown and upon notice to the other party.2  The existence of an abuse claim, standing alone, should not constitute “good cause” for a mental health evaluation.3  But if a custody evaluation is ordered in a case involving allegations of family violence, the evaluator must have “current and demonstrable training and experience working with both perpetrators and victims of family violence.”4  The enforcement of this provision is essential to protect survivors from the dangers of evaluations by poorly trained mental health professionals.

In most domestic violence cases, lawyers should contest both the issue of “good cause” and the qualifications of the evaluator. Procedurally, evaluations, parenting assessments, and best interest assessments should not occur before the perpetrator of family violence or domestic abuse has satisfied the pre-requisites for invoking the narrow exception to the custodial presumption. In other words, unless the abusive party has satisfied all of the conditions for rebutting the PSFVRA presumption and alleges that the child’s best interest requires the abusive party’s participation as a custodial parent because of the other parent’s absence, mental illness, substance abuse, or other circumstances affecting the child’s best interest, the motion should be denied.5

If the court orders an evaluation over your objection, request an opportunity to examine the proposed evaluator’s qualifications before the appointment or to submit a list of proposed evaluators whom you believe meet the statutory qualifications. Few mental health professionals have “current and demonstrable” experience and training working with both victims and perpetrators of abuse.6  The fact that the court has routinely relied on an evaluator in the past is not evidence that the evaluator meets the PSFVRA standards for appointment. And the fact that an evaluator may have conducted numerous prior evaluations in abuse cases—albeit incompetently—does not meet the statutory test for qualifications. If an evaluation is ordered, it must be paid for by the abusive parent and not split between the parties.7

If an evaluation has been ordered in your client’s case, you will probably need to identify potential evaluators from among professionals who do not routinely conduct court-appointed evaluations. Most people who maintain a regular court-appointed evaluation practice are not also experienced practitioners in the field of domestic violence. Also, it can be useful to identify previous cases in which evaluators have been involved and to review the frequency with which they discredited reports of abuse or relied upon unscientific and invalid theories or procedures. Even after an evaluator has been appointed over the victim’s objection, there may be opportunities to raise the issue again. Unqualified evaluators will sometimes utilize processes that are dangerous and highly inappropriate in family violence cases, such as joint meetings between the parties.

  • 1La. R.S. 9:331. A mental health evaluation may only be ordered for good cause shown. Id.
  • 2La. C.C.P. art. 1464.
  • 3Cf. Bourque v. Bourque, 03-1254 (La. App. 5 Cir. 3/30/04), 870 So. 2d 1088 (psychological evaluation denied where no psychological issues involved in case). But see Jones v. Jones, 19-66 (La. App. 5 Cir. 5/29/19), 274 So. 3d 811, 820 (trial court had good cause to order appointment of custody evaluator based on “acrimonious” history of the parties, including physical abuse, abusive conduct, and refusals to co-parent).
  • 4La. R.S. 9:365.
  • 5Under La. R.S. 9:364, the party with a history of family violence cannot have unsupervised visitation or move for custodial rights until he has successfully completed a treatment program designed for perpetrators of abuse, which usually takes 6 months, and is free from drug and alcohol abuse. Even then, the party with a history of abuse can only get unsupervised visitation if it is in the child’s best interest. And custodial rights are even more difficult for an abuser to obtain. The abuser must prove that the child’s best interest requires his participation as a custodial parent because of the other parent’s absence, mental illness, substance abuse, or other circumstances which affect the child’s best interest. This test is akin to proving parental unfitness, a high legal burden. For further discussion, see Section 8.3.2.
  • 6La. R.S. 9:365.
  • 7La. R.S. 9:367.

8.9 Modifying PSFVRA Orders

8.9 Modifying PSFVRA Orders aetrahan Tue, 08/29/2023 - 11:20

8.9.1 General Principles

8.9.1 General Principles aetrahan Tue, 08/29/2023 - 11:24

Parties seeking to modify PSFVRA orders bear onerous legal burdens designed to protect the children and discourage perpetrators of abuse from using custody and visitation litigation to perpetuate their abuse.1  Different legal standards apply to requests to modify PSFVRA custody and requests to modify PSFVRA visitation. These are discussed separately below.

  • 1La. R.S. 9:361.

8.9.2 Modifying Custody

8.9.2 Modifying Custody aetrahan Tue, 08/29/2023 - 11:24

Once a court has found there is a history of family violence and has awarded the non-abusive parent sole custody, the party with a history of family violence must satisfy both a 3-part test under the PSFRVA and the Bergeron test for a custody modification. When these tests are applied, no legal avenue exists to modify the custody order to joint custody.

The PSFRVA test for custody modification. The presumption in favor of sole custody to the non-abusive parent may only be overcome by satisfying the criteria set forth in 9:364(B). Under that provision, to modify the order, the party with a history of abuse would have to show (1) the perpetrating parent has successfully completed a court-monitored domestic abuse intervention program as defined in R.S. 9:362, (2) the perpetrating parent is not abusing alcohol or using illegal substances, and (3) the best interest of the child or children, considering the factors listed in La. C.C. art. 134, requires the perpetrating parent’s participation as a custodial parent because of the other parent’s absence, mental illness, substance abuse, or other circumstance negatively affecting the child or children.

The moving party’s burden under the third factor (i.e., to show that their role as a custodial parent is required because of some factor relating to the abused parent’s fitness (such as their absence, mental illness, or substance abuse)) precludes the possibility of joint custody. This is true because, if the court finds that the non-abusing parent is fit enough to be a joint custodial parent, then the moving party (i.e., the abusive parent) has by definition failed to carry the burden to show the non-abusing parents lack of fitness. In other words, it cannot both be true that the non-abusing parent is a fit joint custodial parent, and that the same parent’s fitness is so questionable that they are incapable of acting as a custodial parent such that the abusive parent’s participation as a custodial parent is “required.”

In addition to overcoming the PSFVRA presumption, the party with a history of abuse also bears the burden of meeting the Bergeron test for modification of a considered custody decree.1  Unlike the DAAA,2  the PSFVRA does not make findings, orders, or conclusions under the PSFVRA temporary or exempt from res judicata. So, once final, they cannot be relitigated.3  Under Bergeron, the party moving to modify a considered custody decree must prove:

that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.4

Although two outlier cases from the Fifth and Third Circuits held that PSFVRA cases are not “considered decrees” invoking the Bergeron modification test, recent legislative amendments and case law supersede them. Both cases relied on the flawed rationale that because a PSFVRA custody determination does not include an analysis of the best-interest factors under La. C.C. art. 134, PSFVRA orders are not “considered decrees.”5  Because a “considered decree” is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children6 —and a history of family violence, is, as a matter of law, evidence of parental unfitness to exercise care, custody and control of a child—the rationale of both decisions was logically flawed. Moreover, an explicitly stated purpose of the PSFVRA is to ensure that custody and visitation disputes do not become a forum to perpetuate abuse through vindictive litigation,7  so it is neither logical nor consistent with statutory purposes to apply a lower threshold for abusive parties to modify custody than that applied to non-abusive parents. Fortunately, 2018 legislative amendments explicitly incorporated the PSFVRA into Article 134, effectively resolving any question about whether PSFVRA orders are different from orders decided under Article 134.8

In sum, a “family violence case” is always a family violence case. There are no legal means by which a trial court may transform a family violence case back into an ordinary custody case governed by Article 134’s best interest factors alone. Custody modification may happen only if the La. R.S. 9:364 custodial presumption is overcome and the Bergeron test is satisfied. Only under the most extraordinary circumstances could both tests be met.

  • 1Garcia v. Hernandez, 21-338 (La. App. 5 Cir. 4/11/22), 339 So. 3d 61, 69 (holding that trial court’s custody judgment under PSFVRA was a considered decree). For more detailed discussion of Bergeron, see Section 4.4.3 of the chapter on family law.
  • 2La. R.S. 46:2134(E).
  • 3The fact that the legislature wrote an explicit exception into the DAAA but did not do so in the PSFVRA is evidence of its intent.
  • 4Bergeron v. Bergeron, 492 So. 2d 1193 (La. 1986).
  • 5Coleman v. Manley, 15-778 (La. App. 5 Cir. 3/16/16), 188 So. 3d 395 (holding that an award of domiciliary parentage under the PSFVRA to a party does not constitute a “considered decree” and thus the application of the heightened Bergeron standard in the child custody modification proceeding is inapplicable); Cloud v. Dean, 2015-1050 (La. App. 3 Cir. 1/13/16), 184 So. 3d 235 (mother’s award of sole custody pursuant to PSFVRA was not a “considered decree” and thus not permanent; custody would be reconsidered after the father successfully completed a domestic violence intervention training).
  • 6Rodriguez v. Wyatt, 11–82 (La. App. 5 Cir. 12/12/11), 102 So. 3d 109, 114 (citing Silbernagel v. Silbernagel, 06-879, p. 6 (La. App. 5 Cir. 4/11/07), 958 So.2d 13).
  • 7La. R.S. 9:361.
  • 8See also Garcia v. Hernandez, 21-338 (La. App. 5 Cir. 4/11/22), 339 So. 3d 61, 69 (holding that trial court’s custody judgement under PSFVRA was a considered decree).

8.9.3 Modifying Visitation

8.9.3 Modifying Visitation aetrahan Tue, 08/29/2023 - 11:35

Parents with a history of family violence may seek, but are not entitled to, either supervised or unsupervised visitation under the PSFVRA.1  PSFVRA visitation orders are subject to a variety of pre-conditions set forth by La. R.S. 9:341. The standard that applies to a request to modify visitation in a PSFVRA order depends upon whether the visitation being sought is supervised or unsupervised. Until a perpetrator of family violence proves he has met the requirements for unsupervised visits under La. R.S. 9:341,2  supervised visits cannot be modified in ways that do not include the safety-related restrictions of La. R.S. 9:362.

For a request to modify supervised visitation to unsupervised visitation, the abusive parent must prove he has satisfied a variety of conditions that include successful completion of a batterer intervention treatment program since the last incident of abuse.3  But unsupervised visits will not be granted merely because the treatment program was completed.4  At the hearing, the court must also consider evidence of the abusive parent’s current mental health condition and the possibility of continuing abuse. And the party seeking visitation must prove that visitation would be in the best interest of the child and would not cause physical, emotional, or psychological damage to the child. Even if proven, the court may continue the supervision and impose any restrictions, conditions, and safeguards necessary to minimize any risk of harm to the child.

All subsequent requests to modify or expand visitation in a PSFVRA case will continue to be governed by La. R.S. 9:341. There is no legal “work-around” that can change a PSFVRA case into an ordinary custody or visitation case subject to a best interest test alone. Some family law attorneys will assert that the passage of time or compliance with past orders should eventually entitle the parent with a history of abuse to assert custodial rights or request less onerous visitation restrictions than those set out in La. R.S. 9:341. This argument conflicts with the plain language of the governing statutes and is not supported by any legal authority.

  • 1La. C.C. art. 136; La. R.S. 9:341.
  • 2For further discussion of these requirements, see Section 8.6.1.
  • 3La. R.S. 9:341
  • 4Id.

8.10 Relocation

8.10 Relocation aetrahan Tue, 08/29/2023 - 11:39

While Louisiana generally requires notification of the noncustodial parent in the event of relocation,1  the PSFVRA exempts abused parents from Louisiana’s relocation notification statute.2  To be exempt, the parents must be protected by a current order of protection.3  Advise your clients about this rule and the possible need to extend non-permanent protective orders or injunctions (particularly Title 46 orders) if they plan to relocate.

Although the PSFVRA requires that all orders after a finding of family violence include an injunction against abuse,4  sometimes sole custody decrees or divorce judgments are entered without the required protective order. If this is your case, you should carefully assess whether compliance with the relocation statute is required. There do not appear to be any appellate decisions on this issue.

Even if compliance with the relocation statute is not required, there may be a need to seek modification of visitation if the abusive former partner has a court order for visitation with which the client can no longer comply from her new location. Failure to seek modification may expose the victim to a contempt motion even if the relocation statute authorized her to move without notice and court approval. Under La. R.S. 9:346(H), a pattern of willful and intentional violation (i.e., failure to allow court-ordered visitation, without good cause) can be grounds for custody or visitation modification. However, because the PSFVRA states exclusive grounds for custody determinations in family violence cases, La. R.S. 9:346(H) does not exempt a parent with a history of abuse from the PSFVRA presumption against sole or joint custody. So, any request to modify visitation under La. R.S. 9:346 would still be subject to the onerous modification burdens that apply to all family violence cases under the PSFRVA.5  Additionally, a modification under this section must also comply with the best interest and Bergeron tests.6

If your client is not exempt from the relocation statute, she must notify the other parent of her intent to relocate.7  Absent consent, court authorization is required to relocate a child before a final decision on the proposed relocation.8  Providing notice of a proposed relocation is not a change of circumstance warranting a change of custody.9  The factors for determination of a contested relocation are listed in La. R.S. 9:355.14. The relocating parent must show that the relocation is in good faith and the child’s best interest.10  The relocation statute mandates that the court consider family violence and substance abuse when considering opposition to relocation.11  The existence of domestic violence and stalking behavior, even when the behavior has abated, should strongly favor relocation of the abused parent.12

Under La. R.S. 9:355.17, moving without prior notice or moving in violation of a court order may constitute a change in circumstances warranting modification. However, La. R.S. 9:355.17 does not create an exception to the Bergeron test for modification of considered custody decrees.13  Nor does it create an exception to the PSFRVA requirements for custody or visitation modification. This means that the party seeking a custody modification on grounds that the other party either failed to give notice or moved in violation of an order must still meet the requirements of the PSFRVA, and also prove either that the present custody is so deleterious to the child it justifies a modification of the custody decree, or prove by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.14

  • 1For further discussion, see Section 4.9.2 of the chapter on family law.
  • 2La. R.S. 9:355.2(D)(2).
  • 3Id. Eligible orders may be granted under the PSFVRA, the DAAA, the PDVA, or the Children’s Code. Id. Orders entered under general injunction statutes may also qualify. See id.
  • 4La. R.S. 9:366.
  • 5For discussion of these burdens, see Section 8.9.
  • 6Jaligam v. Pochampally, 2016-0249, p. 17 (La. App. 4 Cir. 12/7/16), 206 So. 3d 298, 309 (concluding that trial court conducted a best interest test and Bergeron analysis sufficient to support modification under La. R.S. 9:346).
  • 7La. R.S. 9:355.3–.4.
  • 8La. R.S. 355.11.
  • 9La. R.S. 9:355.17.
  • 10La. R.S. 355.10.
  • 11La. R.S. 9:355.14(11).
  • 12H.S.C. v. C.E.C., 2005-1490 (La. App. 4 Cir. 11/8/06), 944 So. 2d 738, 750 (reversing order denying relocation request); see also Jaligam v. Pochampally, 2012-1510 (La. App. 4 Cir. 4/24/13), 115 So. 3d 694, 701 (affirming order allowing relocation on grounds that relocation was necessary, in part, because of father’s past abuse and controlling behavior).
  • 13Gray v. Gray, 2011-548 (La. 7/1/11), 65 So. 3d 1247, 1260. Note that the Gray decision refers to the previous version of La. R.S. 9:355.11 which became La. R.S. 9:355.17 when the statute was amended in 2012. Both versions state that moving without prior notice or moving in violation of a court order may constitute a change of circumstances warranting custody modification, so the Gray holding still applies. See also Jaligam, 2016-0249, p. 17, 206 So. 3d at 309 (applying best interest test and Bergeron to a similar provision that says failure to allow court-ordered visits can warrant custody modification).
  • 14Bergeron, 492 So. 2d 1193.

8.11 Client Autonomy

8.11 Client Autonomy aetrahan Tue, 08/29/2023 - 11:48

People subjected to abuse by an intimate partner sometimes minimize or do not know about the effects of domestic violence on their children. Or sometimes they have strongly held beliefs that children should have close and continuing contact with the other parent, regardless of a history of abuse. Not only can it be painful for parents to acknowledge the true effects of violence on their children, but survivors also receive conflicting messages from family, friends, religious institutions, and society that prioritize two-parent households over freedom from abuse. It is the lawyer’s job to give clients the information they need to make informed decisions—not to tell them what to do or to substitute their own judgment about what is best for their children. Ultimately, it is the client’s decision whether to plead the PSFVRA and whether to pro-actively seek restrictions on an abuser’s access to children.

Lawyers can help clients make informed choices by encouraging them to consider questions such as whether it is realistic to believe that the other parent can engage is safe shared parenting without intimidation or emotional abuse (i.e. does his past behavior support this conclusion), whether it is realistic to assume that unsupervised visitation will take place in a manner that is physically and emotionally safe for the child(ren), and whether the decision is informed by research about the impact of domestic violence on children and parenting. Make sure to advise clients that if co-parenting and shared decision making proves impossible, they could be prevented from raising the issues of abuse later in subsequent custody litigation or be disbelieved because those issues weren’t raised sooner.

Additionally, the law now requires that PSFVRA restrictions be imposed against parents with a history of family violence even if no party pleads or invokes the Act.1  So, lawyers should advise their clients that any hearing on child custody could result in PSFVRA restrictions whether or not they want them.

  • 1La. C.C. art. 134(B).

8.12 Interstate Child Custody Issues

8.12 Interstate Child Custody Issues aetrahan Tue, 08/29/2023 - 11:49

8.12.1 General Principles

8.12.1 General Principles aetrahan Tue, 08/29/2023 - 11:49

Lawyers representing survivors of intimate partner violence or protecting parents of abused children must know and understand child custody interstate jurisdiction issues.1  Scenarios that lawyers may need to address include: 1) the survivor wishes to relocate with the child either before or after an initial custody determination; 2) the survivor has fled with the child to Louisiana; and 3) the survivor has fled from Louisiana to a state of refuge and the abusive former partner files to force the child’s return to Louisiana.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)2  applies to all “child custody proceedings” in which legal custody, physical custody, or visitation is at issue.3  A “child custody proceeding “includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from family violence, in which the custody or visitation issue may appear.”4  In domestic violence cases, interstate jurisdiction issues typically arise when a victim moves out of state to get away from an abusive former partner. If a victim relocates to a new state but is made to litigate contentious custody issues in the first state, her safety and stability may be compromised. In these cases, lawyers may be called upon to represent survivors who need help asking Louisiana courts to either accept or decline jurisdiction under the UCCJEA’s domestic violence provisions. The UCCJEA includes important protections for domestic violence victims and their children that can help lawyers advocate for them in these circumstances.

The UCCJEA’s inconvenient forum and emergency jurisdiction rules include protections for victims who flee the child’s “home state” to escape violence.5  Under the UCCJEA, a child’s “home state” has jurisdiction to decide custody. Home state is defined in La. R.S. 13:1813 as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” Once Louisiana makes an initial child custody determination as the “home state,” it has exclusive, continuing jurisdiction until it determines that neither the child, nor the child and one parent, have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships.6  In some cases, Louisiana will be the home state and the victim may need to establish or protect its status as such. In other cases, Louisiana may be the home state, but the victim instead needs help asking Louisiana to decline to exercise its continuing jurisdiction in favor of a refuge state. Alternatively, Louisiana may be the refuge state, not the home state, and a victim needs help establishing temporary emergency jurisdiction for protection here.

  • 1For additional discussion of interstate child custody issues, see Section 4.10 and Section 4.11 of this manual’s chapter on family law.
  • 2La. R.S. 13:1801–1842.
  • 3La. R.S. 13:1802(4).
  • 4Id.
  • 5See Stoneman v. Drollinger, 64 P.3d 997, 1001–02 (Mont. 2003); Kovach v. McKenna, 2011-C-0228 (La. App. 4 Cir. 4/1/11) (unpublished writ opinion). In Kovach, the appellate court reversed a trial court’s denial of a motion to decline its home state jurisdiction in favor of the family violence victim’s refuge state. In its opinion, the Kovach Court found that the “domestic violence and residence of the child in another state for more than six months predominates over all other considerations in La. Rev. Stat. Ann. § 13:1819.”
  • 6La. R.S. 13:1814(A)(1). Continuing jurisdiction also ends when neither the child, the child’s parents nor any person acting as a parent reside in Louisiana. La. R.S. 13:1814(A)(2).

8.12.2 Flight from Louisiana

8.12.2 Flight from Louisiana aetrahan Tue, 08/29/2023 - 11:53

When a victim flees domestic violence, litigation of custody in the refuge state can enhance the victim’s safety and economic welfare. Under La. R.S. 13:1819, a Louisiana court with UCCJEA jurisdiction may decline home state jurisdiction in favor of a domestic violence victim’s refuge state by conducting an “inconvenient forum” analysis. Although the inconvenient forum analysis includes a list of factors for consideration, the two factors that are most often determinative on the issue of whether a Louisiana court should decline jurisdiction are domestic violence and the length of time that the child has resided outside of Louisiana. When representing a survivor who has left Louisiana for a refuge state, lawyers should consider whether to file a motion under La. R.S. 13:1819 requesting that Louisiana decline jurisdiction.1  

The leading case on applying the domestic violence factor in an inconvenient forum analysis is Stoneman v. Drollinger.2  Additionally, in an unpublished writ opinion, Kovach v. McKenna, a Louisiana appellate court ordered declination of Louisiana’s home state jurisdiction under La. R.S. 13:1819 and dismissal of the abusive party’s Louisiana custody suit. In doing so, the Kovach Court concluded that “domestic violence and residence of the child in another state for more than six months predominated over all other considerations in La. R.S. 13:1819.”3  As in Kovach, many trial courts may find an absence from the state of 6 months or more (even if it occurs after the initial filing) weighs heavily in favor of declining jurisdiction under a section 1819 “inconvenient forum” analysis. Louisiana’s courts of appeal have upheld declination as inconvenient forum when the child has been absent for a lengthy time.4  The ruling on a motion to decline as inconvenient forum is reviewable for abuse of discretion by supervisory writs.5

Additionally, if the victim of domestic violence left Louisiana after a Louisiana court issued an order regarding custody, lawyers should determine whether the previous order is an “initial custody consideration” that would give rise to continuing jurisdiction.6  If the prior order was only interim or temporary and was not a considered decree or a final judgment or consent judgment that took best interest factors into account, it may not be the kind of order that gives rise to continuing jurisdiction.7

  • 1La. R.S. 13:1819(A).
  • 264 P.3d 997 (Mont. 2003); see also Rainbow v. Rainbow, 990 A.2d 535 (Me. 2010) (declination of home state jurisdiction in favor of refuge state was appropriate where there was domestic violence).
  • 3Kovach v. McKenna, 2011-C-0228 (La. App. 4 Cir. 4/1/11) (unpublished writ opinion).
  • 4Burds v. Skidmore, 2019-0263, p. 1 (La. App. 4 Cir. 3/22/19), 267 So. 3d 192, 193 (where mother and child had been living in Georgia for 6 years, Georgia had the most significant connections and was the forum most convenient); Wootton v. Wootton, 49,00, p. 1 (La. App. 2 Cir. 5/14/14), 138 So. 3d 1253 (affirming trial court order declining to exercise continuing jurisdiction despite Louisiana consent judgment with provision indicating Louisiana would retain jurisdiction, where mother and child had lived in Mississippi for four years); Kovach, 2011-C-0228; see also Addington v. McGehee, 29729-CA (La. App. 2 Cir. 1997), 698 So. 2d 702, 704.
  • 5Kovach, 2011-C-0228; see also Addington, 29729-CA, 698 So. 2d at 704.
  • 6See La. R.S. 13:1802(3), (8).
  • 7See Burds, 2019-0263, 267 So. 3d 192.

8.12.3 Refuge in Louisiana

8.12.3 Refuge in Louisiana aetrahan Tue, 08/29/2023 - 14:24

La. R.S. 13:1816 addresses a Louisiana court’s authority to issue temporary emergency orders to protect family violence victims who have fled to Louisiana. La. R.S. 13:1816(A) expressly allows temporary emergency jurisdiction to protect a child if the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.

However, La. R.S. 13:1816 emergency orders provide only temporary relief. The custody case must be resolved in the state that has proper jurisdiction under La. R.S. 13:1813–1815 unless that state declines jurisdiction under the inconvenient forum test. If no prior custody order exists and no suit has been commenced in a state with La. R.S. 13:1813 subject matter jurisdiction, a temporary emergency order will remain in effect until an order is obtained from the home state or a state that has proper section 1813 jurisdiction.1  If a prior custody order exists, the judge must confer with the other state’s judge.2  Then, the court with temporary emergency jurisdiction must specify a reasonable time limit for the petitioner to obtain an order from the state with proper jurisdiction under La. R.S. 13:1813­–1815 or to seek declination from that court.3  The temporary emergency order will remain in effect until an order is obtained from the other state or the time limit expires.4

Because Louisiana can assume only temporary jurisdiction under La. R.S. 13:1816, using it can present legal risks for survivors. There is always a danger that the court in the “home state” will view the victim’s request for an emergency order as forum shopping or contumacious. This risk is especially high if the judge in the other state has issued prior orders declining to find domestic violence or minimizing the danger of abuse. In cases like that, the use of this provision can sometimes create more problems for the victim and child when the case eventually returns to the home state.

  • 1See La. R.S. 13:1816(B).
  • 2La. R.S. 13:1816(D).
  • 3La. R.S. 13:1816(C).
  • 4Id.

9 Specific Populations

9 Specific Populations aetrahan Tue, 08/29/2023 - 14:26

9.1 Immigrant Survivors

9.1 Immigrant Survivors aetrahan Tue, 08/29/2023 - 14:26

9.1.1 General Principles

9.1.1 General Principles aetrahan Tue, 08/29/2023 - 14:26

Follow some basic rules for representing immigrant survivors subjected to abuse by an intimate partner. 

  • Do not obtain a final divorce order for any immigrant survivor client before filing a VAWA self-petition. A divorce decree will preclude a self-petition.
  • Obtain details about immigration-related abuse (e.g., threats to deport, withholding assistance, or preventing the survivor from being able to work legally).
  • A client should always speak to an immigration law expert before speaking with ICE. ICE may arrest them and deport them before they have a chance to speak to a lawyer.
  • Clients should not sign ICE documents without first speaking to an immigration lawyer.
  • A self-petitioning domestic violence victim must show battering or extreme cruelty.1  A state-court proceeding that builds the factual record can help a self-petitioning victim.

  • Findings in the custody case may help a self-petitioning immigrant prove “extreme hardship,” if deported.

  • Consider including a provision in the protective order that prohibits the abusive spouse from withdrawing an application for permanent residence filed on the victim’s behalf, or from contacting immigration, any government agency, or law enforcement for purposes of interfering with her status in any way. The evidence and paperwork needed for an application for permanent residence with a spousal sponsor is lower than that required for a self-petition under VAWA.2

  • If the abusive party has stolen or retained documentation or records essential to your client’s immigration case, consider asking the judge to order their return during the protective order proceeding.

  • Plan to respond and object if the abuser raises immigration issues in court. Alternatively, immigration abuse can be a part of your abuse case.

  • If the abuser has sponsored the victim, obtain copies of the Affidavit of Support he signed. This can help with support hearings.

  • Talk to your client about the immigration status of her children. If the children have been victims of abuse, abandonment, or neglect in their home country or in the US, they may be eligible for Special Immigrant Juvenile status (SIJ).  This process is different from a U-Visa or VAWA petition and requires certification by a family or juvenile court that the child is eligible for SIJ.  Help your client obtain a knowledgeable immigration attorney to help with the initial process of determining SIJ eligibility.


9.1.2 Communication

9.1.2 Communication aetrahan Tue, 08/29/2023 - 14:30

If English is not the survivor’s first language and the lawyer does not have fluency in the survivor’s first language, the lawyer must quickly establish a communication plan that includes professional interpreters and a protocol for communication that reduces stress on the client.1  Lawyers should avoid using the victim’s friends and family as interpreters for client meetings for a variety of reasons, including client confidentiality and the risk of waiving attorney-client privilege.

For court, attorneys should file a motion under La. C.C.P. art. 192.2 requesting an interpreter as soon as possible. The court is required, under that article, to appoint an interpreter before the Rule to Show Cause for a protective order hearing under title 42.2  Costs for a professional interpreter must be paid out a court fund,3  or paid by the abusive party.4

Prepare your client for testimony through interpreters. When possible, have your own interpreter in court, in addition to the court-appointed interpreter, so that you may communicate confidentially with your client during court proceedings and breaks. At the very least, it is a good idea to have a non-witness friend, relative, or other person who speaks the same language as your client listen to testimony to tell you if the professional interpreter is interpreting accurately.

  • 1For detailed discussion of the use of interpreter to facilitate access to justice for individuals with limited English proficiency, see this manual’s chapter on language access.
  • 2La. C.C.P. art. 192.2(C).
  • 3La. C.C.P. art. 192.2(B).
  • 4La. R.S. 46:2136.1; La. R.S. 9:367.

9.1.3 Immigration Expertise

9.1.3 Immigration Expertise aetrahan Tue, 08/29/2023 - 14:32

After securing an interpreter, a crucial next step is to find and consult an immigration expert about any risks your client may face by taking any particular course of action in the legal system. Lawyers should use extreme caution to avoid inadvertently creating immigration problems for their clients and should seek to protect clients from immigration abuse. Many lawyers do not understand how easy it is to create problems for a client’s immigration case for what may seem like unrelated actions. Even consent judgments in family law cases can positively or negatively affect a client’s immigration situation.

Immigration-related risks to clients can be especially high cases involving a concurrent criminal case. Because of language barriers, victims who lack proficiency in English can be vulnerable to arrest when interacting with police during domestic violence calls, especially if the abuser speaks English and is more easily able to communicate his version of events. If the client is charged with a crime, a guilty plea could mean immediate deportation and loss of status, which should be discussed with a client as part of any settlement calculation. The failure to discuss these issues with a client can result in harm to the client, lawyer malpractice, and disciplinary action taken by the state bar association.

Most lawyers do not have overlapping expertise in domestic violence and immigration. If this is you, consult an expert right away to make sure that your planned course of action for the client does not involve risks unknown to you. There are excellent resources available to lawyers advocating for immigrant survivors. If you are unsure what to do, or who to consult for help, a good first step would be to reach out to an organization that provides expert technical assistance and consultation to lawyers, such as ASISTA.1

9.1.4 Avoiding Deportation

9.1.4 Avoiding Deportation aetrahan Tue, 08/29/2023 - 14:35

Immigrant survivors who leave their abusive partners may face enhanced vulnerability to deportation through their partners’ actions or inactions.  Specifically, abusive partners often threaten to pull previous support for permanent residency for victims, refuse to assist in the seeking of residency, fail to pass on documents and correspondence from immigration proceedings, or, in the most extreme cases, contact I.C.E. to report the victims as being in the country illegally. Lawyers should make sure that immigrant survivors of abuse receive legal advice about deportation risks and potential avenues for protection. These avenues include:

  • U- Visa – allows immigrant victims of certain types of crimes, including domestic violence, who have been helpful in the investigation of prosecution of the crime to apply for a visa that may lead to green card status.1
  • VAWA – allows an abused spouse or child of a U.S. citizen or lawful permanent resident to self-apply for lawful permanent status and also allows for employment and access to public benefits.2
  • T-Visa – allows human trafficking survivors to apply for permanent status and employment authorization.3

If a survivor may be eligible for these immigration protections, assist them in securing representation by an immigration attorney or advocate.

9.1.5 LSC Concerns

9.1.5 LSC Concerns aetrahan Tue, 08/29/2023 - 14:39

LSC attorneys are allowed to represent immigrant domestic violence survivors. The Violence Against Women Act was specifically amended to allow the use of VAWA funds to represent battered immigrant spouses.1

  • 1Immigration law is complex and frequently changes. You should develop a relationship with an immigration expert for cases where a battered immigrant spouse needs legal help to avoid deportation.

9.2 LGBTQI+ Survivors

9.2 LGBTQI+ Survivors aetrahan Tue, 08/29/2023 - 14:40

9.2.1 General Principles

9.2.1 General Principles aetrahan Tue, 08/29/2023 - 14:40

Cases involving LGBTQI+ survivors of abuse can present challenges that lawyers need to be prepared to address. Most domestic violence attorneys have little experience representing LGBTQI+ survivors, in part because a history of homophobia or ignorance among mainstream service providers has led to distrust and a lack of organizational competence to provide services. Although there is a commonly held belief that intimate partner violence is more pervasive in heterosexual relationships than in others, studies show similar rates of intimate partner violence among same-sex couples.1  And transgender women experience some of the highest rates of gender-based violence but are among the least likely to access services or to have options for culturally competent services.2

An important part of being accessible to LGBTQI+ survivors is recognizing the need for specialized training and support. The American Bar Association’s Commission on Domestic & Sexual Violence has an LGBTQI+ Legal Access Project that provides training, support, and individualized technical assistance to lawyers and programs providing legal services to LGBTQI+ survivors.3  The Project can provide support to programs seeking to improve their accessibility and organizational competence with respect to LGBTQI+ survivors, as well as technical assistance on individual cases.

Some of the challenges LGBTQI+ survivors face include the fact that law enforcement tends to be less competent in identifying the predominate aggressor when responding to calls for service, more likely to minimize the danger to a victim, and more likely to make dual arrests.4  LGBTQI+ survivors can face abuse in the form of threats to “out” the victim or to take away children to which the victim may have limited or no custodial rights. Furthermore, survivors may find it difficult to avoid an abusive former partner in a local, socially insular LGBTQI+ community and may face homophobia or transphobia among law enforcement, service providers, and courts when they seek help.

Especially in protective order cases involving same-sex partners and transgender women, the often ineffectual or harmful responses by police can make litigation more challenging by painting a picture of mutual violence. Lawyers should develop evidence to show how the purpose and the effect of the abusive party’s violence is different from physical violence the victim may have used to resist or defend against control and abuse. For example, an abusive party may laugh at or taunt a victim who strikes the abuser, suggesting that the abuser does not actually fear the victim; the absence of fear undercuts the notion that both parties are equal aggressors. Additionally, the type of violence used can also be an important way of helping judges understand distinctions between the abusive party and the victim when there are dueling claims of abuse. For example, strangulation is a behavior only an abusive party engages in, and an expert in strangulation may be able to explain the pervasive tactic of strangulation in abusive relationships to a judge.

9.2.2 Child Custody Issues

9.2.2 Child Custody Issues aetrahan Tue, 08/29/2023 - 14:45

It can sometimes be complicated to advise LGBTQI+ clients about their parental rights in Louisiana. This is especially true in cases involving children shared by unmarried same-sex partners. In some cases, the victim may be the sole party with an adoptive or biological filiation to the child or children. In other cases, the victim may be the parent with no adoptive or biological filiation to a child they have raised since birth. In the latter situation, victims can feel especially trapped and fearful of losing rights and access to shared children. Louisiana’s courts of appeal have applied varying and confusing standards to cases like these, and outcomes in both trial and appellate courts have been unpredictable and sometimes conflicting.1

Technically, under Louisiana law, these cases would fall under La. C.C. art. 133’s test for non-parent custody. Under Article 133, a non-parent seeking custody bears the heavy burden of proving that “substantial harm” would result to the child if the legal parent is awarded custody. In multiple cases, however, Louisiana’s trial and appellate courts have applied a standard much more akin to a “best interest” test if the child or children’s conception occurred during the relationship and as a result of a shared decision, or where the parent with the biological or adoptive filiation had previously consented to prior a judgment of shared or joint custody.2

It is worth noting that, in 2019, Louisiana’s Fifth Circuit Court of Appeal decided an unusual case that created helpful precedent for parents of shared children who do not meet the current legal definition of “parent” in Louisiana; at the same time, the case created dangerous precedent for domestic violence victims. In Ferrand v. Ferrand, the Fifth Circuit reversed a trial court order that had denied custodial rights to Vincent Ferrand, a transgender man who was not a “legal” parent under Louisiana law but had acted as a parent to the children for the first four years of their lives. Mr. Ferrand had also been convicted for battery of the children’s mother, after physically attacking her in the children’s school yard and spitting on her in front of the children. The mother had been awarded a permanent order of protection and, before that, had filed for protective orders on grounds that Mr. Ferrand had abused her and threatened to shoot her in the head when she attempted to retrieve the children from him. In the custody case, the Fifth Circuit overruled the trial court’s credibility determinations and findings of abuse (despite a conviction), and instead adopted Mr. Ferrand’s factual allegations about the mother in the “Facts” of its opinion. The court then conducted a best interest analysis based on those “Facts,” discredited expert testimony from the children’s therapist that the children feared Mr. Ferrand and that contact with him created anxiety and behavior problems and concluded that the mother had “alienated” the children from Mr. Ferrand. The Fifth Circuit awarded Mr. Ferrand shared custody of the children, five years after the children had last seen or visited with him.3

The Ferrand decision created legal precedent that may be helpful for LGBTQ parents with no biological or adoptive filiation to their children. But the opinion reflected palpable disdain for the mother, who had been subjected to abuse. The court made repeated reference to the mother’s “choice” to stay in a relationship with Mr. Ferrand for eleven years. And it opined that three earlier incidents of domestic violence, including a strangulation, even if true, would have “no bearing on the children’s psychological and emotional well-being” because of their remoteness in time.4  The court referred to the video-recorded incident during which Mr. Ferrand flung the mother to the ground by her hair and spit in her face in front of children and schoolteachers as “extremely poor judgment.” And although the trial court concluded that Mr. Ferrand’s own conduct had led to the children’s “alienation” from him, the Fifth Circuit concluded instead that the mother was at fault for having alienated the children from Mr. Ferrand. The Court applied a lower legal burden to Mr. Ferrand—who had been convicted for his abuse of an intimate partner—than the PSFVRA burden that would have applied to a “legal” parent under Louisiana law.

  • 1Cook v. Sullivan, 53,741, p. 20 (La. App. 2 Cir. 11/18/20), 307 So. 3d 1121, 1130, aff’d, 2020-01471 (La. 9/30/21); 330 So. 3d 152 (finding that shared custody between unwed same-sex couple was improper under 133 standard). But see Ferrand v. Ferrand, 18-618, p. 1 (La. App. 5 Cir. 12/6/19), 287 So. 3d 150 (finding that joint custody between unmarried same-sex couple was appropriate under 133 standard).
  • 2See In re J.E.T., 2016-0384, p. 14 (La. App. 1 Cir. 10/31/16), 211 So. 3d 575 (explaining the approach under Article 133 to nonparent custody termination).
  • 3Ferrand, 287 So. 3d 150.
  • 4This rationale conflicts directly with the Post-Separation Family Violence Relief Act, which imposes no recency requirement for family violence and does not give courts discretion to conclude that family violence committed by one parent against the other has no bearing on children’s well-being.

10 Client Financial Independence

10 Client Financial Independence aetrahan Tue, 08/29/2023 - 14:48

10.1 Basic Principles

10.1 Basic Principles aetrahan Tue, 08/29/2023 - 14:48

Helping to secure and protect a client’s economic and consumer rights after separation from an abusive partner is essential to the client’s long-term personal and household well-being. The National Center for Survivor Agency and Justice is a national organization that provides excellent training and resources for attorneys on how to effectively identify and advocate for the economic needs of domestic violence survivors.1  A good place to start is this Consumer Rights Screening tool.2  Clients may need assistance with other issues such as public benefits, tax, subsidized housing, evictions, foreclosures, consumer debt, employment, etc.

10.2 Subsidized housing

10.2 Subsidized housing aetrahan Tue, 08/29/2023 - 14:52

Domestic violence survivors who live in subsidized housing1  may require assistance with issues that includes:

  • Challenging or avoiding an eviction or subsidy termination for alleged crimes by the abuser or victim’s temporary absence due to flight from abuser.
  •  Requesting the housing authority remove the abuser from the lease.
  •  Advocating for the portability of a voucher to another apartment or city.
  •  Facilitating transfer to another apartment for safety reasons.
  •  Advocating for rent decrease or minimum rent because of loss of family income.
  •  Obtaining early lease termination.
  •  Advocating for an admission preference due to domestic abuse.

10.3 Tax

10.3 Tax aetrahan Tue, 08/29/2023 - 14:53

Many married survivors of domestic violence have substantial tax debt problems that could cripple them economically if not resolved.1  Sometimes the problems are unknown to them until after they leave an abusive spouse. Fortunately, there are “innocent spouse” relief laws that can relieve many domestic violence victims of their federal tax debt. The innocent spouse relief laws are complex. We recommend that you refer your client to low-income tax specialists, such as the Low-Income Taxpayer Clinic at Southeast Louisiana Legal Services (504-529-1000).

You should counsel your client against signing any joint returns with her abusive former partner. Often an abusive former partner will exert pressure to sign a joint return, claiming it will result in a refund that may be split. However, it is not worth the risk of being held liable for a fraudulent or improper joint tax return. In event that the return is proper, the victim likely will never see the refund because the abusive former partner will find a way to intercept the refund.

It is important for survivors to file their annual income tax returns even if they do not know how or have the funds available to pay a preparer. The IRS provides free tax preparation at Volunteer Income Tax Assistance (VITA) clinics for low-income earners (generally under $60,000), persons with disabilities, and/or limited English-speaking taxpayers. You may refer your client to the IRS overview on VITA, which contains a VITA Locator Tool.2  In New Orleans, Tulane Law School and the United Way both serve as VITA locations.

10.4 Benefits

10.4 Benefits aetrahan Tue, 08/29/2023 - 14:56

A client’s options for benefits should be explored. Food assistance programs like Supplemental Nutrition Assistance Program benefits (SNAP) and Women, Infants, and Children (WIC) may be applied for on an expedited basis. Financial assistance programs like FITAP benefits (or TANF) take longer to get. The 24- and 60-month limits on FITAP benefits may be waived for domestic violence victims.1

Clients who lose their jobs should look to see if they qualify for unemployment insurance and should contact an attorney if they are improperly denied, as an administrative appeal is possible.2  Client’s families which include non-parents who are caring for displaced children, may be eligible for the Kinship Care Subsidy, which can be as much as $222 a month for each eligible child.3

  • 1La. R.S. 46:460.9.
  • 2For more detailed discussion of the appealing a denial of unemployment compensation, see Section 5.6 of this manual’s chapter on employment law.
  • 3See Additional Resources for You, La. Dep’t of Child. & Fam. Servs.

11 Miscellaneous Topics

11 Miscellaneous Topics aetrahan Tue, 08/29/2023 - 14:59

11.1 Military Servicemembers

11.1 Military Servicemembers aetrahan Tue, 08/29/2023 - 15:00

Military Regulations do not tolerate domestic violence.1  The military services have Family Advocacy Programs which try to help reduce family violence. Commanding officers and military family advocates have the ability to ensure that victims receive victim advocacy services, medical care, risk assessments, safety planning, Military Protective Orders, counseling, and legal assistance.

Military Protective Orders are similar to civil protective orders. They may be issued by commanding officers, and formal hearings are not required. They are usually issued for up to 10 days. If a longer order is needed, the commanding officer gives the victim and alleged offender an opportunity to respond. A commanding officer must direct or make a formal inquiry into charges of domestic violence against a service member. The offender may face non-judicial punishment or courts-martial. Until 2018, domestic violence was not a recognized crime in the Uniform Code of Military Justice (UCMJ). Service members could be charged with other similar crimes, like assault, but not domestic violence. Now, as a result of a court martial proceeding, service members can face punishments ranging from the docking of their pay to a dishonorable discharge as a result of domestic violence.

In practice, although the military has policies against domestic violence, the person enforcing these rules is the commanding officer who often attempts to counsel or mediate a resolution rather than protect the victim. Further, civil police do not have jurisdiction over incidents that occur on military bases. So, if an incident of abuse occurs on base, military police are in charge of responding to any call for help or subsequent investigation.

11.2 Occupational Licensing Boards

11.2 Occupational Licensing Boards aetrahan Tue, 08/29/2023 - 15:20

If an abuser is a member of a profession or occupation that is regulated by a licensing board, he may be subject to rules of professional conduct that prohibit spouse abuse. For example, attorneys have been disciplined for abusing their spouses.1

  • 1In re Magid, 655 A.2d 916 (N.J. 1995); In re Nevill, 704 P.2d 1332 (Cal. 1985).

12 Practical Tips

12 Practical Tips aetrahan Tue, 08/29/2023 - 15:23

12.1 Case Assessment

12.1 Case Assessment aetrahan Tue, 08/29/2023 - 15:23

12.1.1 General Principles

12.1.1 General Principles aetrahan Tue, 08/29/2023 - 15:23

When domestic violence victims are turned away by legal services providers, they often have no place else to turn. Lawyers face pressure to diligently assess cases and to err on the side of providing essential advocacy. Legal services attorneys in particular must balance considerations of clients’ needs, the capacity of the firm, and the likelihood of accomplishing meaningful client outcomes. While a victim hospitalized for a broken leg may have compelling safety concerns that need to be addressed, a victim whose injuries are more difficult to prove and whose abuser has never been arrested may be more at risk of losing custody of her children to an abusive former partner. Balancing out competing needs for legal advocacy in the context of limited resources is challenging. It can also sometimes be a real challenge to assess cases without making personal judgments about clients who may seem unlikeable, angry, ungrateful, or uncooperative. Sometimes survivors facing the most complex legal needs do not present the most compelling narrative. And sometimes survivors facing the most danger do not expressly state that they fear the person who has abused them. Many survivors minimize their abuse by using language that inaccurately suggests mutuality of violence between the parties. To complicate matters even more, some victims who truly need legal help sabotage their own cases by not being honest with their attorneys about important negative facts that attorneys need to know about to prepare. Over time, a skilled interviewer will begin to catch these nuances and learn to investigate further so that victims in need of help are not turned away, and they are prepared to address unfavorable facts. The following sections contain tips for assessing a case for representation.

12.1.2 Key Questions

12.1.2 Key Questions aetrahan Tue, 08/29/2023 - 16:11

Certain key questions may assist with accurate case evaluation.

  1. What is the extent and nature of the abuse?
  • Is the violence escalating?
  • Is there a pattern of stalking, control, or regulation and monitoring of daily activities?
  • Has the violence ever involved strangulation or use of weapons?
  • Does the abusive party have access to a gun?
  • Does the abusive partner show disregard for legal consequences, such as by violating restraining orders?
  • Has the abusive party made death threats?
  • Have there been threats of suicide?
  1. Is the client particularly vulnerable in the court system?
  • Does the client have limited capacity to express herself or articulate her situation because of mental health issues, intellectual disabilities, or the effects of trauma?
  • Does the client have limited English proficiency?
  • Does the abusive party have an attorney?
  • Does the abusive party have significantly more financial assets for litigation than the victim?
  • Has the abusive partner initiated litigation against the victim?
  • Does the case involve complicated issues that require expert testimony or testimony from medical professionals?
  • Was the client wrongfully arrested for domestic violence?
  • Does the client have a criminal record that she will be unable to adequately address if representing herself?
  • Are there other negative facts that the victim will have difficulty explaining without the assistance of an attorney?
  1. Can meaningful legal outcomes be realized for the client?
  • If you do prevail, will the outcome improve safety and stability for the victim or her children?

12.1.3 Reasons Not to Decline Representation

12.1.3 Reasons Not to Decline Representation aetrahan Tue, 08/29/2023 - 16:12

In general, when assessing a case for representation, try not to decline representation based solely on reasons such as these:

  • There is no evidence to corroborate the client’s reports of abuse.1
  • There are no visible physical injuries.
  • The client is unlikeable.
  • The client has resisted an abusive partner by engaging in self-defense or in futile retaliatory violence.
  • The client has a criminal record.
  • The client has substance abuse or mental health issues resulting from the abuse or that may be used to undermine her credibility.
  • The client withholds negative facts in early interviewing processes for fear that you will not take the case.
  • The client has initiated contact with an abuser after separation or after obtaining a protective order.
  • 1It is not at all unusual for victims to have never called the police nor sought medical attention. Similarly, the abusive partner may have destroyed her phone or deleted her cloud to destroy pictures or texts showing the abuse.

12.1.4 Assessing Need for Emergency Relief

12.1.4 Assessing Need for Emergency Relief aetrahan Tue, 08/29/2023 - 16:13

Not all domestic violence cases should be addressed through emergency proceedings. Once you have determined that you will assist a victim in addressing her legal needs, it is important to be realistic with clients about what can be accomplished through legal action. In some cases, the complexity of the facts or evidence makes it impossible to competently litigate cases in the time frame demanded by a protective order statute. For example, cases that require expert testimony to address issues relating to victim behavior, children who align with an abuser, or child sex abuse, can be difficult to prepare for in the 21 days or fewer between the filing of a petition for protection from abuse and the hearing. In those cases, lawyers should speak frankly with their clients about immediate safety considerations, long-term litigation goals, and options for different proceedings. Rushing to court for a protective order can do more harm than good if the case cannot be litigated properly and the court makes findings and orders that pre-dispose decisions against your client in the future.1

  • 1For discussion on developing a thoughtful, comprehensive case strategy, see Section 2.6.

12.2 Pre-Trial Case Planning

12.2 Pre-Trial Case Planning aetrahan Tue, 08/29/2023 - 16:14

12.2.1 General Principles

12.2.1 General Principles aetrahan Tue, 08/29/2023 - 16:14

Domestic violence protective order cases can present pre-trial practice challenges. The emergency nature of protective order proceedings means that in many cases, formal pre-trial discovery is unavailable or is fast-tracked. In some cases, lawyers must prepare for court, but there is little time to conduct important investigative functions. Lawyering in these cases requires pre-trial preparation for multiple possible scenarios that cannot be determined before the hearing. But diligent pre-trial practice, even in this setting, makes it possible to avoid a true “trial by surprise” scenario.

12.2.2 Developing a Case Theme

12.2.2 Developing a Case Theme aetrahan Tue, 08/29/2023 - 16:15

There is so much work to prepare for court that lawyers sometimes forget the basics. But taking the time to be thoughtful about a case theme that is specific to your client and her case can go a long way toward helping the judge see your client as a person instead of just another petitioner. A case theme does not need to be complicated. Think of it as an idea that creates a lens through which the judge will hear the evidence. It must be threaded throughout the case. For example, a case theme can be something as simple as “Ms. Smith and her children deserve peace in their home.” Or “No one should have to live like this. Ms. Smith should not have to spend one more day looking over her shoulder, wondering if today is the day he will make good on his promise.” By contrast, a case theme can also be about the abusive party, which can sometimes be helpful if you want to forecast to the court that the defendant will be accusing your client of misconduct: “Mr. Smith will never take responsibility for his conduct and will always find a way to blame Ms. Smith for his problems.”

Some general rules: (1) a case theme should be simple and have logical appeal; (2) it must always be provable and not overstate your case; (3) it should give the judge a reason to care; (4) it should anticipate issues or unfavorable facts the other side might raise; (5) it should be broad enough that it can play a role in each part of your case. The case theme should always be shared with your client in advance of court. If you got it right, your client will feel heard and validated because it speaks to her experience. Sharing your case theme with your client helps confirm that you “got it right” and will help your client stay focused on the issues that matter most when testifying.

An effective case theme can also present the opportunity to respond to the other side in the earliest stages of litigation. Your client almost always knows what her abusive former partner will say about her. Ask your client directly “what is he going to say about you” or “what is the worst thing he will try to say about you, true or not.” When it makes sense, work those issues into your case theme. For example, if financial, housing, and employment instability are issues the abusive party may try to use to his advantage for custody, connect those problems to his own bad acts (e.g., harassment on the job, fleeing to shelter because of abuse), and incorporate that into your case theme (i.e., “Mr. Smith hopes the court will reward him for his own bad acts and the harm they have caused to his family.”). The same argument could apply to mental health issues attributable to the abuse, such as depression and anxiety. Be careful, however, not to feature or highlight unfavorable facts that will play only a peripheral role in the case.

12.2.3 Investigation and Discovery

12.2.3 Investigation and Discovery aetrahan Tue, 08/29/2023 - 16:15

Lawyers representing survivors in protective order cases must not only conduct quick, focused investigations, they must quickly decide when to edit evidence and testimony that detracts from the client’s “core story” and fails to support the case theme.

Quickly determine what, if any, witness testimony to present in addition to the client’s testimony. Even within a shortened time frame, each witness should be prepared for court by running through the direct, preparing for cross, and explaining the process of objections.

In most jurisdictions, it is not customary to conduct formal discovery in protective order proceedings, even though it may be possible. Sometimes there is insufficient time to conduct written discovery, but sufficient time to notice a deposition. Consider opportunities to conduct formal discovery before a protective order hearing. When a defendant fails to respond, it may justify a continuance that includes maintaining the TRO in place while you obtain (and, if necessary, compel) discovery. Discovery is valuable in any case to help you prepare for the defendant’s version of events, but in a case involving child or spousal support, it can ensure that you can produce the best evidence of the other party’s income and ability to pay.

Once you examine your discovery options within the time frame set by the rules of civil procedure,1  make a case plan that establishes what you need to prove, and whether the sources of proof will require that you obtain them through interrogatories, requests for production, requests to admit, depositions, or subpoena.

Many domestic violence perpetrators manipulate the legal system. Do not rely on the abusive party to respond honestly or timely to discovery. Whenever possible, try to get the information directly from a third party, e.g., employer, hospital, day care center, Internal Revenue Service, etc. Approach depositions with caution, and carefully explore safety considerations for both you and your client. Arrange for depositions to take place in a secure setting, such as a courthouse with metal detectors and security, and do not allow the abusive party to be alone with your client.

  • 1See La. C.C.P. arts. 1421 (General Discovery), 1457­–1458 (Interrogatories), 1461–1463 (Production of Documents), 1466–1468 (Admissions), 1437–1439 (Depositions).

12.2.4 Selecting Evidence

12.2.4 Selecting Evidence aetrahan Tue, 08/29/2023 - 16:16

Do not try to prove everything and every incident. Plan to prove a limited number of incidents, and choose your best evidence. In general, your case plan should include proving:

  • The two most recent incidents of abuse
  • Two or three of the worst incidents of abuse
  • The general nature and frequency of abuse
  • Incidents resulting in serious bodily injury or requiring medical attention
  • Incidents involving the use of guns or other weapons
  • Incidents involving strangulation
  • Threats to kill
  • Stalking and surveillance
  • Incidents result in police action, especially if criminal charges are pending
  • Incidents for which you have strong corroborative evidence, such as photographs, medical records, or eyewitness testimony

​​​​​The most frequent sources of evidence to corroborate abuse include:

  • Photographs of injuries or property damage
  • Phone records
  • Voice mail messages
  • Emails/text messages (take screenshots when possible)
  • Torn or bloody clothing
  • Police reports
  • 911 recordings
  • Medical records

In addition to client testimony, witnesses often include:

  • Children
  • Police
  • Neighbors
  • Family
  • Friends
  • Co-workers

Finally, consider the other types of evidence you will need:

  • Evidence in the abuser’s control or possession
  • Evidence that supports ancillary claims such as child and spousal support, child custody, and housing
  • Evidence necessary to rebut claims from the other side
  • Evidence of positive parenting or previous caretaking history

12.2.5 Unfavorable Facts

12.2.5 Unfavorable Facts aetrahan Tue, 08/29/2023 - 16:18

Once you have decided to represent a survivor in need of legal services, do not be afraid of the facts. Make sure to follow up with your client on issues or allegations that you don’t “feel” good about. Whatever issues you see, the court will find them and likely focus on them, often to your client’s detriment. Clients are imperfect, but their actions are mostly rational and can be explained. It is the lawyer’s job to take the time necessary to understand any confusing or complicated facts or behavior and to present them effectively to the judge.

People subjected to abuse by their intimate partners rarely conform to societal notions of “good” or “deserving” victims. Representing survivors can be challenging not only because clients are imperfect, but also because society imposes unrealistic expectations on them. Most people expect a victim to appear afraid of her abuser, not angry at him. As a result, it is important that attorneys prepare to deal with allegations that your client is the aggressor or is mutually violent. In some cases, police may have wrongfully arrested a victim when she called for help, bolstering the abusive party’s claim. In cases like these, it can be useful to present testimony and evidence that draws a distinction between the purposes and effects of violence used by either party in the relationship. Victims tend to use violence as a form of resistance, in either self-defense or retaliatory resistance to abuse and control. Victims’ use of force tends not to result in the same level of physical or emotional harm to the abusive party unless the victim uses a weapon to equalize a physical power imbalance. Domestic violence perpetrators, on the other hand, tend to use force and violence to exert control over and enforce compliance from their partner, and the violence they use tends to cause greater harm and create more far-reaching consequences for the victim.

Some other issues that may require special consideration by lawyers include:

  • Survivors with substance dependence issues
  • Survivors with mental health issues
  • Survivors who injured the abuser
  • Survivors with an arrest history
  • Survivors who maintain contact with an abusive former partner after obtaining a TRO

Make sure to “connect the dots” if the abuse or resulting trauma gave rise to any of the issues above. The National Center on Domestic Violence, Trauma & Mental Health has an excellent resource guide on representing clients with mental health issues.1

  1. Victim Stereotypes.

Victim and perpetrator stereotypes often come into play in domestic violence cases. Effective case planning includes preparation for a variety of predictable defenses that abusive former partners use against survivors, most of which play upon gendered and/or racist stereotypes such as (1) the lying, vindictive, or scorned woman; (2) the hysterical, crazy, or exaggerating woman; (3) the provocateur; or (4) the cheating manipulator. Your client is likely to know which of these the batterer will use. Do not underestimate the effectiveness of these powerful cultural archetypes.

In addition to the gendered stereotypes that abusive former partners and their lawyers frequently exploit, commonly held beliefs about “real victims” of domestic violence also come into play. For example, when victims present as angry or resistant to their abusers or even simply insistent in pursuing legal protections, they are readily cast as mutually violent perpetrators and as “high-conflict” or “contentious” litigants.

  1. Perpetrator Stereotypes.

Lawyers must also prepare for the role that stereotypes about domestic violence perpetrators will play in their case. The race, economic privilege, and professional status of the party who is abusive often dictates which stereotypes about victims and abusers rise to the surface. The commonly held belief that domestic violence is primarily committed by people of lower socioeconomic status can make it harder for victims whose perpetrators have financial resources and professional credentials. Additionally, the party who is abusive often benefits from the tendency to conflate domestic violence with “anger management” problems. Although many abusers tend to be experts at managing their anger and directing it to only one safe target (their intimate partner), judges often expect them to present as volatile and angry. When they appear calm and controlled in court, their behavior is wrongly perceived as incongruous with abuse. Similarly, judges who wrongly believe that domestic violence is a mental illness often think that psychological testing will reveal some kind of pathology that is probative of the issue of domestic violence.

By thinking through how these issues will play out between the parties in a case, lawyers can prepare to meet them, and sometimes even confront them directly in closing.

12.3 Client Testimony

12.3 Client Testimony aetrahan Tue, 08/29/2023 - 16:21

12.3.1 General Principles

12.3.1 General Principles aetrahan Tue, 08/29/2023 - 16:21

A compelling direct examination is the foundation of a successful trial. A weak direct will lose your case much more quickly than a weak cross-examination. In domestic violence cases, direct examination sometimes makes up your entire case-in-chief, and the importance of conducting it skillfully cannot be overstated. The challenges associated with conducting the direct examination of a client who still suffers from the effects of abuse make the task of preparing for direct even more arduous. Many survivors, even those represented by attorneys, may clam up on direct examination in ways that can negatively affect their cases. Counsel clients on the need to tell their story to the judge and why.

In short, an effective direct examination of your client will do the following:

  • Support your case theme with facts and details.
  • Evoke specific and compelling imagery of your client’s experiences of being subjected to abuse.
  • Minimize the impact of stereotypes about victims and strategies abusive former partner and their attorneys use against victims in family court.
  • Establish the necessary factual basis for your legal claims.

12.3.2 Outline for Direct Examination

12.3.2 Outline for Direct Examination aetrahan Thu, 08/31/2023 - 16:27

Every case is different, and lawyers should avoid a “one size fits all” approach to direct. But this section proposes a general outline for direct that can help structure direct examination in most protective order cases.

  1. Establish the identity of the parties and their relationship to one another.
    • Include any other foundational facts that you need to prove as a preliminary matter to entitle her to a protective order. For example, how long the parties have been in a relationship, when the relationship ended, and whether they have children. If the client’s petition lists children as protected persons, ask about their names, ages, and relationship to each party.
  2. Ask one or two introductory questions that help your client feel more comfortable and will tell the judge a little bit about her – other than the fact that she is a victim of abuse.
    • Does she work outside the home? Is she a full-time parent? Where are the children in school? Is she in the military? The key is to ask simple questions that the client can answer easily – these often serve to help calm a client down and lift the anxiety felt while testifying in open court. These questions also present the opportunity to make a favorable impression on the judge, by allowing your client to talk about something positive in her life that is not related to the abuse she has experienced. Keep in mind that many clients will not necessarily associate a job with their sense of personal identity, so be respectful of that and don’t always use employment as a way of introducing your client to the court. But if your client has a job that places her in a position of trust or responsibility, that information can be used to help paint a picture of your client that is helpful.
  3. Provide preliminary information about any children who are the subject of a request for protection or temporary custody.
    • If you haven’t done so already, make sure your client testifies upfront about the children’s names and ages and usually their schools and what grade they are in. Often, judges want to know right away what their living situation is. Have your client testify about where the children are living and how long they have lived there. If there are complicated custody issues because an abusive party has recently taken the children, provide a brief overview of that, and come back to it in more detail later – after testimony about the history of abuse (as it may then be viewed in a different light – as part of a pattern of abuse). Try not to get in depth on custody issues at this stage of direct – you do not want to leave the court with the impression that your case is a custody dispute veiled as a protective order proceeding.
  4. Ask preliminary questions that put the most recent incident of abuse in context.
    • An effective direct examination will begin “painting a picture” for the trier of fact and trigger the listener’s imagination. The lawyer must direct the testimony so that the client stays focused on the core narrative but also contextualizes it enough to make it vivid and compelling. You should begin this process by “setting the stage.” Ask your client where she was and when, and elicit any other key information about the setting (the time of day, which room in the house, etc.). Eliciting details like this will help trigger your client’s active memory of the event, which is helpful for avoiding generalized descriptions such as “we were fighting and he hit me.”
  5. Follow up and clarify. Ask questions about anything your client “glossed over” and clarify any vague or confusing language.
    • If your client is protecting herself emotionally by giving vague descriptions of the abuse she experienced, it is your job to ask more questions and elicit the details necessary. Your client may have left out key information about threats the abuser made during the incident, or other important information. In addition to clarifying and following up about missing information, also go back and “elongate” testimony about important incidents, such as those involving strangulation. Ask your client for details such as whether the abusive party used one hand or two, whether her breathing was restricted, what she was thinking and feeling, and details she remembers about the abusive person during the strangulation, such as what he was saying or the look in his eyes.
    • Another issue you may need to clarify at this stage is any statements your client may have made that made it sound like the violence or “fighting” was mutual.
  6. Go through each additional incident you plan to present similarly, and then wrap up with testimony about the general frequency of the conduct.
    • Ideally, select three or four of the most compelling incidents for detailed testimony. Highlight the most recent incidents, incidents involving strangulation, death threats, guns, weapons, injuries, arrest, or stalking, and any incidents involving the children. If there are countless incidents like these, highlight three or four of the strongest, and then provide more general information about the nature and frequency of the abuse.
  7. Ask questions that wrap up the story of the abuse and move the client out of trauma before she must answer questions from opposing counsel or the defendant.
    • While it can be tempting to end direct at the most powerful moment, it can be self-defeating to turn your client over for cross examination while she is still reeling from testimony about the abuse. Order your direct so that you can transition your client to topics not related to the abuse before it ends. Typically, you can do this by asking questions about entitlement to ancillary relief. This may be a good time to return to any custody issues, including testimony about your client’s role as a primary caregiver to any children at issue.
  8. Address negative facts to take the sting out of her anticipated cross-examination. “Bury” this in the middle of the direct.
    • ​​​​​​​In this section, you should address any issues you expect to be weaponized against your client during cross-examination, such as why she didn’t call police, why she didn’t tell people about the abuse, whether she also hit the defendant, prior arrests, etc. The goal is to frame unfavorable facts before the defendant or his attorney has a chance to do so, but not to “highlight” them. Make sure that you have reconciled any issues that can be used against your client to make her seem not credible or mutually violent. For example, this is where you may need your client to explain facts such as post-TRO contact she initiated with the other party.
  9. Ask questions that establish her entitlement to ancillary relief, such as custody, support, use and possession of a home or car, etc.
    • Make sure to ask questions that lay the foundation for ancillary relief.  For example, if you don’t have your client testify about the fact that she needs the family car to drive the children to and from school and then to her job, the court may be inclined to grant the car to the abusive partner, especially if it is registered in his name.
  10. Finish strong.
    • At this point, the testimony about abuse has often been followed by testimony about issues like child support and financial issues.  Make sure to go back at the end and remind the court why your client is here. End by asking a question or two that will allow your client to communicate something about either her fear of the defendant, how her life and/or her children have been affected by the abuse, or how the defendant’s behavior is escalating. This can be a good time to elicit testimony about the emotional toll of abuse and stalking, or to have your client describe the burden of changing daily routines and activities to stay safe.
    • Remember to always plan ahead about where in this outline you will authenticate and introduce exhibits, and prepare objection responses in advance.

12.3.3 Preparing Your Client for Direct

12.3.3 Preparing Your Client for Direct aetrahan Thu, 08/31/2023 - 16:31

Always schedule time to meet with your client and go through her direct examination before court. Begin by explaining your goals for the direct examination, what issues will be important, and what issues will not. Talk to your client about any tendencies she may have to gloss over details, to appear angry or defensive, or to minimize abuse. Then role play the direct examination, giving the client feedback about anything unclear or confusing, as well as her pacing and demeanor. The role play will help you adjust your direct examination outline as needed before the hearing. Other tips for client preparation:

  • Frankly discuss the emotions the hearing might trigger.
  • Don’t discourage emotional expression during her testimony.
  • Encourage honest emotional responses in the courtroom (except anger, which can be weaponized to suggest she is the aggressor or mutually violent).
  • Explain why it is important that your client tell what happened to her.
  • Advise her about the importance of tone and body language for credibility, as the court will be watching both of them while they are testifying and even while they are not.
  • Make sure your client understands that being “tough” to prove something to her abuser in court can backfire.
  • Reconcile all inconsistencies or seemingly illogical facts and behavior in advance of court, by pointing them out and addressing them.
  • Ask your client whether she is worried about any issues that might be brought up in court.
  • Make sure your client understands your case theme, and what facts and evidence in her case are most compelling and best support her claims. While a lawyer should never manufacture a client’s testimony, it is critical that the lawyer prepare the client to testify about what is important to the judge and to leave out what is unimportant.
  • Encourage your client to use language and style that is natural to her (except when it is necessary to slow her down).
  • Avoid discussing domestic violence terminology that, if repeated during client testimony, will sound disingenuous and coached (e.g., “He’s obsessed with power and control.”).
  • Identify a client’s tendency to be distracted by issues that do not support her “core story” (e.g., the abusive former partner’s infidelity). Talk to her about what the focus should be on in court, and why.
  • Identify and address a client’s tendency to “gloss over” details of painful events. Practice doing it differently.
  • Identify and address client’s tendency to minimize, deny, or use language that characterizes abuse as mutual.
  • Ask the client to make a timeline of abuse that can serve as a reference point for both of you.
  • Make sure she understands the process of objections.
  • Practice the direct, for both substance and pace, and to ensure that the client can tell her full story.
  • Prepare the client for a judge’s questioning style, as some judges use an inappropriate questioning style that may intimidate or traumatize a victim. You do not want your client to be surprised by an untrained or unkind judge’s aggressive style.

12.3.4 Preparing your Client for Cross

12.3.4 Preparing your Client for Cross aetrahan Thu, 08/31/2023 - 16:32

An essential part of preparing your client for court is preparing her for cross-examination. She needs to know what to do when questioned by opposing attorneys or a pro se defendant. Explain the process and what types of questions the abuser or opposing counsel might ask. Reiterate that this is not a time to get into an argument, but rather to answer questions concisely and without a lot of explanation if possible. Explain that they should pause before answering so that you have a chance to object, and make sure they know to stop talking if they hear you object. Explain that often the party conducting the cross will be trying only to prove that she is an “angry” woman and so getting into an argument will only help the abuser’s case.

It is especially important to talk with clients about the possibility of being cross-examined by her former abusive partner. Reassure her that it is your job to object to any inappropriate questions or aggressive conduct and that you will come back after the cross is finished to ask questions and clarify any answers that seemed incomplete or misinterpreted. Also, tell your client that if it feels more comfortable, she may look at the judge, instead of the defendant, when answering his questions.

After you have discussed these issues with your client, role play the cross-examination. Make sure your client clearly understands that it is a role play to help her practice for court, and you will pretend to be aggressive and insensitive. Before the role play, you should brainstorm all potential issues for cross and focus on some of the most unfavorable facts in the case. Be sure to consult with your client about what she believes the abusive party’s strategy will be, and what kinds of things he will try to say or bring out to make her look bad or not credible.

12.3.5 Child Testimony

12.3.5 Child Testimony aetrahan Thu, 08/31/2023 - 16:32

In domestic violence cases, children are often the only witnesses who can corroborate the victim’s testimony about abuse in the home. But many judges believe strongly that children should not testify because of the risk that the experience of testifying will be traumatic. In some cases, however, the child’s testimony is essential to securing orders of protection that will prevent future harm. The child’s testimony can make it more likely that the child will be safer in the future. But children, like all people, are complicated. They can exhibit a wide range of responses to their experiences of abuse, all of which must be planned for. Clients often accurately predict how children will respond to questioning, and this can help lawyers decide whether to call a child witness and how to prepare.

In Louisiana, children’s testimony in family law cases is generally taken through a Watermeier hearing.1  Although some courts expect attorneys to file motions for a Watermeier hearing if they intend to call a child witness, most courts will not allow child testimony through any other process anyway, unless the child is 16 or over. During a Watermeier hearing, the child’s testimony is taken in chambers on the record rather than in the courtroom, and the questioning is conducted by the judge instead of the attorneys. Attorneys should be allowed to provide proposed questions for the child in advance of the hearing, though there is no guarantee that the judge will ask every question proposed.2  Attorneys are also afforded the opportunity to be present in chambers for the child’s testimony. Opinions differ about this practice. Many attorneys feel strongly that it is essential to be present when the judge speaks to the child, so that he or she can assess whether follow up questions are needed or whether the questioning sufficiently addressed key issues. It can also be important for attorneys to know exactly what was said without the necessity of ordering a transcript because it may be necessary to incorporate the evidence into argument or to present evidence in rebuttal. On the other hand, some attorneys choose to waive their presence in chambers during the child’s testimony, especially if the defendant is pro se and would be entitled to personally sit in on the testimony if the lawyer does. To avoid the possibility of intimidation, it could sometimes make sense to have neither the petitioner’s attorney nor the defendant present. Carefully consider the risks associated with foregoing the opportunity to personally observe the interaction, as well as the risk of intimidation.

If a Watermeier hearing is desired, the attorney should file a motion with the court requesting a hearing to determine whether the Watermeier process is necessary and appropriate for the child. Children who are too young will likely not be allowed to testify, and children over the age of 16 are often required to take the stand to allow for cross examination by an attorney or the other parent.

  • 1Watermeier v. Watermeier, 462 So. 2d 1272 (La. App. 5. Cir. 1985).
  • 2See D.M.S. v. I.D.S., 2014-0364, p. 5 (La. App. 4 Cir. 3/4/15), 225 So. 3d 1127, 1132 (providing detailed account of Watermeier procedure and factual findings).

12.4 Abuser Testimony

12.4 Abuser Testimony aetrahan Thu, 08/31/2023 - 16:33

Contrary to widespread belief, cross-examination skills are not a gift that some lawyers possess and others do not. A good cross-examination can be conducted by any lawyer who prepares diligently. The key to a strong cross-examination in a domestic violence case is to work closely with your client to anticipate how your client’s former abusive partner will present and what he will focus on in his testimony. Often, abusive former partners inadvertently corroborate a victim’s testimony about things such as his fixation on fidelity issues and stalking by discussing those matters on direct (e.g., “I checked her cell phone, so I knew she had been calling him.”).

The number one mistake that many attorneys make during cross-examination is asking one question too many. That last question sometimes allows the witness to explain something away, or, worse yet, allows him to deny a fact that he did not deny in his own direct examination. If he did not deny a specific incident in his direct, the worst thing you can do is raise it during cross.

Another common mistake by attorneys in these cases is over-reliance on questions asking the abuser if he committed specific incidents of abuse. These questions are rarely, if ever, fruitful.

Cross-examination of the abusive former partner should be tailored to the lawyer’s style and what is known about the abuser’s likely strategy and demeanor. An overly aggressive cross-examination of a pro se defendant can look like the attorney is picking a fight and trigger sympathy for the party who is abusive. Give these issues thoughtful consideration in advance of the hearing, and do not plan your cross by relying on hope that a dramatic movie-style moment will transpire. Be realistic.

Finally, the cross-examiner should plan to make a few clear, concise points and stop. Important points will lose their impact if obscured amidst a rambling barrage of questions that make trivial points, if any. In assessing your cross-examination plan, consider these questions:

  • Have I limited myself to only a few, discrete, and important points?
  • Is each question simple, direct, and clear?
  • Have I asked only leading questions?
  • Have I limited myself to only one fact per question?
  • Have I avoided “why” questions?
  • Does every question have a purpose and a point worth making in my closing?*
  • Have I examined each question to make sure it does not give the abusive party an opportunity to explain himself?
  • Can I control the answer to every question, even if I don’t know the answer?
  • Do I have a plan for every possible answer?
  • Does the question require a yes/no answer?
  • Am I clear about which question is “one question too many?”
  • Have I avoided being overly transparent such that the witness might catch on and do damage control?
  • Did I save the important points for closing argument?
  • Is my strategy consistent with the advice my client gave me about how he will behave and what he will say?
  • Have I done my homework to discover all possible sources of impeachment material?
  • Have I avoided trying to get evidence from a hostile witness that I can get from a more predictable or more friendly source?
  • Have I prepared myself to be flexible, and to follow my witness?
  • Do I have a plan to move on when the going gets rough?

​​​​​​​*Examples of some points worth making so that you can feature them in closing include: showing the defendant lied by impeaching them with materials or prior statements, showing a history of abuse against other women (assuming you have a good faith basis and evidence to present), re-iterating controlling and jealous behavior he may have already shown, demonstrating that he accepts no responsibility and blames the victim for everything, showing that he feels entitled to know about your client’s activities or to restrict them, showing that he has learned nothing from prior batterer intervention courses. Remember, lay the groundwork in cross, and save the point itself to make during closing argument.  By saving for closing, you don’t afford the defendant a chance to create an excuse, and you get the opportunity to contextualize it for the judge.

12.5 Opening & Closing

12.5 Opening & Closing aetrahan Thu, 08/31/2023 - 16:35

Judges will often discourage opening statement and closing argument in these cases. Do it anyway, but do not waste the court’s time with a rote recitation of facts. Opening is your opportunity to tell the court what the case is about and what is at stake. It is where you introduce your theme and provide a lens through which the court can ultimately view the evidence presented by both sides. Closing is our chance to connect the dots, tie your evidence to the law, tell your client’s story and why the court should believe it, and address any sticky issues that the court appears to be focusing on. These functions are essential to a successful trial, and even a truncated argument is better than none.

12.6 Evidentiary Issues

12.6 Evidentiary Issues aetrahan Thu, 08/31/2023 - 16:35

12.6.1 Special Evidentiary Rules for Custody Cases

12.6.1 Special Evidentiary Rules for Custody Cases aetrahan Thu, 08/31/2023 - 16:35

In child custody cases and protective order cases with child custody claims, special evidentiary rules apply. Under the La. C.E. art. 1101, the rules of evidence serve only as “guidelines” in proceeding involving child custody.1  In other words, the rules of evidence still apply in custody proceedings, but only “to the extent they promote the purposes of the proceeding.”2  The reason for relaxed evidentiary rules in child custody cases is that strict application of the rules does not always serve the best interests of the child.

The judge has significant discretion when determining what evidence to “allow in” under Article 1101. Although the flexibility of Article 1101 can be helpful in some custody proceedings, the rule can also be used by the abusive party to get in documents, statements, or even witness testimony that would usually not be allowed. Consider this risk when deciding how much flexibility you want the court to apply to the evidence you plan to present.

When planning to either offer or object to evidence under this rule, a good way to approach the argument is to think about the purposes of evidentiary rules in general. Evidentiary rules exist to ensure that evidence considered in court is both relevant and reliable. Evidentiary rules exist to ensure that the evidence that judges consider in court is both relevant and reliable. So, any party seeking to enter evidence under Article 1101 should be expected to demonstrate the evidence is both relevant to the issues before the court, and reliable enough to be considered. For example, one could argue that a certified police report that was prepared within hours of a call for service meets this test because it meets a general test for authenticity (i.e., it is what is says it is because it is certified) and reliability (i.e., it was prepared contemporaneously with the investigation, includes a statement against interest by the defendant or an excited utterance from the victim). If it is the other side attempting to introduce evidence under this article, be prepared to argue why the evidence’s authenticity should be called into question, why it may not be a reliable source of information, or why it may not be relevant (e.g., a letter indicating an abuse allegation was “unfounded” by child protective services could not meet a basic test for authenticity, does not fall under a hearsay exception, and is not relevant because it cannot be used as proof that the abuse allegations were more or less likely to be true).

  • 1La. C.E. art. 1101(B)(2).
  • 2Id.; see Gonzales v. Gonzales, 21-172, p. 2 (La. App. 5 Cir. 7/2/21), 2021 WL 2766900, writ denied, 2021-01211 (La. 11/10/21), 326 So. 3d 1251.

12.6.2 Prior Bad Acts or Convictions

12.6.2 Prior Bad Acts or Convictions aetrahan Thu, 08/31/2023 - 16:37

Evidence of similar crimes, wrongs, or acts involving domestic abuse, family, violence, or sexual abuse, may be admitted in a civil case under La. C.E. art. 412.5, so long at its probative value outweighs unfair prejudice under La. C.E. art. 403. As a matter of law, prior bad acts or crimes against the petitioner by the defendant are a key issue that must be considered."1  The probative value of this evidence in protective order and PSFVRA cases should pass an article 403 balancing test with only rare exception because under the DAAA, the court must consider “any and all history of abuse, or threats thereof” and the abuse need not be “recent, immediate, or present.”2  And in custody determinations under La. R.S. 9:364, the court is required to make a determination about whether there is a “history of family violence. So there is no question that prior acts of abuse are relevant and therefore admissible both protective order and custody cases.”3

Abuse against a different intimate partner or acts of violence against others should fall within this rule as well, if they are probative to issues such as the victim’s fear (if the prior abuse is known to her), the possibility of the children’s exposure to future abuse, and the defendant’s dangerousness to intimate partners. Prior bad acts against other intimate partners may also be relevant to prove intent, motive, or absence of mistake.4

Although there is a general prohibition against introducing convictions more than 10 years old under La. C.E. art. 609(B), arguably, the provisions of the more specific article, La. C.E. art. 412.5, should govern domestic abuse-related convictions. Article 412.5 does not create a time limit. Moreover, the imposition of a time limit arguably conflicts with both the DAAA and PSFRVA, which require that courts examine the history of domestic abuse or family violence.

Some of the strongest evidence of prior abuse is a conviction from a criminal proceeding. Even if the defendant has been convicted, do not rely on him to admit the conviction in court, and always plan to prove it without his testimony. To easily avoid authentication challenges, present the court with a certified copy of the conviction. A certified copy will also allow the judgment to be entered under the hearsay exception.5

Prior bad acts or convictions that are not related to domestic abuse or family violence must have a nexus to an issue relevant to the case, such as the victim’s fear, the likelihood of future abuse, a parent’s fitness, or the children’s safety during visits. It can often backfire to attempt to use prior criminal records for more general purposes, such as proving general bad character. Convictions for other crimes are not admissible for purposes of attacking a witness’s credibility, unless the conviction involves dishonesty or false statement.6  If introducing the conviction for a permissible purpose other than showing a prior history of domestic violence, it must not be more than 10 years old.7

  • 1See Raney v. Wren, 98-0869, pp. 6–8 (La. App. 1 Cir. 11/6/98), 722 So. 2d 54, 58; Michelli v. Michelli, 93 CA 2128 (La. App. 1 Cir. 5/5/95), 655 So. 2d 1342, 1349-50. Even acts that occurred prior to a custody decree should be admissible. Raney, 722 So. 2d at 58.
  • 2La. R.S. 46:2135(A); see also Shaw v. Young, 2015-0974 (La. App. 4 Cir. 8/17/16), 199 So. 3d 1180, 1185–86 (affirming protection order where petitioner “lived in constant fear that, because of the physical violence in the past, as soon as there was not a protective order in place, the ‘harassment will step up and it won’t be just electronic harassment.’”); Wise v. Wise, 02-574 (La. App. 5 Cir. 11/13/02), 833 So. 2d 393; Cruz-Foster v. Foster, 597 A.2d 927, 930 (D.C. 1991) (noting that abuser’s past conduct is perhaps the most important evidence of his future conduct).
  • 3See Raney v. Wren, 98-0869, p. 6–8 (La. App. 1 Cir. 11/6/98), 722 So. 2d 54, 58; Michelli v. Michelli, 93-2128, pp. 11–12 (La. App. 1 Cir. 5/5/95), 655 So. 2d 1342, 1349–50. Even acts that occurred prior to a custody decree should be admissible. Raney, 722 So. 2d at 58.
  • 4La. C.E. arts. 404(B), 402.
  • 5La. C.E. art. 803(22).
  • 6La. C.E. art. 609(A)(2).
  • 7La. C.E. art. 609(B).

12.6.3 Police Reports & Arrest Records

12.6.3 Police Reports & Arrest Records aetrahan Fri, 09/01/2023 - 09:11

Louisiana law requires the police to write a report whenever they respond to a domestic violence call.1  A well-written police report will include the defendant’s admissions, excited utterances by those present, and a description of injuries. In Louisiana, however, police reports are generally inadmissible.2  You may be able to introduce a police report if the defendant does not object. Police reports (or testimony about them) are sometimes admissible in child custody actions under the limited applicability rules of La. C.E. art. 1101.3

In practice, many judges do not allow police reports in under Article 1101 and make a victim’s proof of domestic violence more difficult by excluding them.  Police officer witnesses may use the police report to refresh their recollection. Although police reports are generally inadmissible, a police report may still be used to cross-examination or impeach a defendant with prior inconsistent statements or omissions, which do not require a report’s admission into evidence. Additionally, a related arrest may be admissible even if the report is not, as discussed below.

Arrest records, on the other hand, are generally admissible in custody cases when relevant to an issue other than witness credibility, such as a parent’s fitness.  Although La. C.E. art. 609(F) prohibits an arrest, indictment, or prosecution from being used to attack a witness’s credibility, if the arrest tends to make the existence of any other fact of consequence to the determination of the action more or less probable, it is relevant and admissible.  So, for example, arrest records showing a parent’s history of serial abuse against prior intimate partners should be relevant to show lack of moral fitness or risk that the child will be exposed to future abuse. Arrest records that speak to the children’s best interests are admissible under La. C.E. art. 1011(B)(2).

  • 1La. R.S. 46:2141.
  • 2La. C.E. art. 803(8)(b); State v Sigur, 578 So. 2d 143, 147 (La. App. 1 Cir. 1990).
  • 3But see Gautreau v. Gautreau, 96-1548, pp. 7–8 (La. App. 3 Cir. 6/18/97), 697 So. 2d 1339, 1346.

12.6.4 Admissions Against Interest

12.6.4 Admissions Against Interest aetrahan Fri, 09/01/2023 - 09:19

Partners who are abusive may make admissions to investigating police officers relative to acts of violence. Although they often minimize or justify their behavior, even the minimized behavior they admit to may constitute battery or assault which would constitute grounds for a protective order or finding of family violence. Such admissions are admissible as an exception to the hearsay rule.1

  • 1La. C.E. arts. 801(D)(2), 804(B)(3). The applicable rule depends on the circumstances.

12.6.5 Threats to Harm

12.6.5 Threats to Harm aetrahan Fri, 09/01/2023 - 09:20

A threat by the abuser to harm the victim is not hearsay. It is an admission by a party opponent.1

  • 1La. C.E. art. 801(D)(2)(a); see, e.g., State v. Burmaster, 97-517, p. 18 (La. App. 3 Cir. 2/25/98), 710 So. 2d 274, 283.

12.6.6 Abuser’s Writings

12.6.6 Abuser’s Writings aetrahan Fri, 09/01/2023 - 09:21

Letters, texts, or emails by the abusive party are his own statements and therefore are not inadmissible hearsay.1

Emails can be particularly easy to spoof, so it is important that a witness authenticate an email through testimony that establishes the history of party communication through the same email address, the existence of any substance or topic in the email that is specific to the defendant, how the witness knows the email is from the defendant, whether the witness printed copies of the email, whether the email copy has been altered in anyway, and whether the printed email is a true and accurate copy of the email the witness received.

  • 1La. C.E. art. 801(D)(2)(a); State v. Strickland, 94-0025, p. 22 (La. 11/1/96), 683 So. 2d 218, 229.

12.6.7 Flight from Crime Scene

12.6.7 Flight from Crime Scene aetrahan Fri, 09/01/2023 - 09:21

Evidence of an abuser’s flight from crime scene (e.g., assault and battery of victim) is relevant and admissible as an indication of consciousness of guilt.1

  • 1State v. Mills, 505 So. 2d 933, 948 (La. App. 2 Cir. 1987).

12.6.8 Former Testimony

12.6.8 Former Testimony aetrahan Fri, 09/01/2023 - 09:22

Former testimony in another hearing may be admissible if the defendant is an “unavailable witness” because of his refusal to testify in current proceeding.1  Additionally, testimony from any previous court proceeding, deposition, or sworn statement may be used for impeachment on cross-examination.

  • 1La. C.E. art. 804(B)(1); State v. Adams, 609 So. 2d 894, 895–96 (La. App. 4 Cir. 1992).

12.6.9 Audiotapes

12.6.9 Audiotapes aetrahan Fri, 09/01/2023 - 09:23

Audiotapes of the defendant’s statements or threats, even secretly recorded telephone conversations, may be admissible.1  Louisiana is a single-party consent state when it comes to recording conversations. That means that only one party to the conversation needs to know that it is being recorded.2  911 tapes can be very compelling evidence. Defendants may leave threats on a telephone voicemail. Audio recordings of the defendant may be authenticated through the victim’s testimony that she recognizes the voice on the recording and how (e.g., she has talked to him on the phone many times).

  • 1State v. Jeanlouis, 96-474, p. 7 (La. App. 3 Cir. 11/6/96), 683 So. 2d 1355, 1360; Briscoe v. Briscoe, 25,955, pp. 9–10 (La. App. 2 Cir. 8/17/94), 641 So. 2d 999, 1006–07.
  • 2R.S.15:1303(B)(4).

12.6.10 Excited Utterances

12.6.10 Excited Utterances aetrahan Fri, 09/01/2023 - 09:24

An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition.1  Well-written police reports may contain excited utterances by the victim or children to which the police officer may testify. Also keep in mind that other hearsay statements like this that do not fall within the excited utterance exception can sometimes be later admitted in re-direct as a prior consistent statement once the witnesses’ credibility has been attacked.2

  • 1La. C.E. art. 803(2).
  • 2La. C.E. art. 801(D)(1)(b).

12.6.11 Child’s Hearsay Statements

12.6.11 Child’s Hearsay Statements aetrahan Fri, 09/01/2023 - 09:25

A child’s hearsay statements to a doctor, mental health professional, or abuse expert may be admissible.1  The Louisiana Supreme Court (and several courts of appeal) have concluded that a child’s hearsay statements should be admissible in child custody cases, PSVRA cases, and DAAA cases under the relaxed evidentiary standard of La. C.E. art. 1101.2

Note that not all statements made by children are hearsay. For example, if you are introducing the child’s statement to simply show that the child said something, rather than to show that what the child said was true, the statement would not be hearsay because it is not being offered for the truth of the matter asserted. An example of this would be a child calling his mother an obscene name that he has heard his abusive father call the mother.

  • 1S.L.B. v. C.E.B., 2017-0978, pp. 24–26 (La. App. 4 Cir. 7/27/18), 252 So. 3d 950, 967–68 (affirming trial court’s admission of child’s audiotaped interview with doctor 4 days after injury where it was part of medical record in DAAA protective order hearing); G.N.S. v. S.B.S., 35,348, pp. 19–21 (La. App. 2 Cir. 9/28/01), 796 So. 2d 739, 750–51.
  • 2For additional discussion, see Section 12.6.1.

12.6.12 Fifth Amendment

12.6.12 Fifth Amendment aetrahan Fri, 09/01/2023 - 09:27

The defendant may assert the Fifth Amendment privilege in a protective order hearing if there is a concurrent criminal prosecution. But his silence can be construed against him in a civil proceeding.1  And the existence of a pending criminal case does not constitute “good grounds” for a continuance.2  A petitioner’s constitutional right to a civil remedy prevails when weighed against a criminal defendant’s Fifth Amendment rights.3  So, it is not a violation of due process or the Fifth Amendment right against self-incrimination for a criminal defendant to have to defend a related civil proceeding.

Keep in mind that sometimes victims are wrongfully charged when poorly trained police respond to an incident of abuse. A common scenario in which this occurs is when the victim of abuse is trying to retrieve children from an abusive partner, and the police erroneously conclude your client is the aggressor or is not fearful because she has gone to his home. In cases like these, you may need to carefully consider any risks of client testimony. Although a finding in a protective order or hearing cannot be res judicata in a subsequent proceeding under La. R.S. 46:2134(E), any testimony given in civil court can be used against them in a criminal proceeding and for purposes of impeachment.

  • 1See McCann v. McCann, 09-1341, pp. 7–8 (La. App. 3 Cir. 3/10/10), 33 So. 3d 389, 395 (applying adverse inference in a DAAA proceeding); Miles v. La. Landscape, 97-118, p. 4 (La. App. 5 Cir. 6/30/97), 697 So. 2d 348, 351.
  • 2Malmay v. Sentry Ins. Co., 550 So. 2d 366, 369 (La. App. 3 Cir. 1989).
  • 3Id.; Green v. Champion Ins. Co., 577 So. 2d 249, 262 (La. App. 1 Cir. 1991); Barbee v. Pigott, 398 So. 2d 137, 138 (La. App. 3 Cir. 1981); Bank of Com. & Tr. Co. v. Prejean, 262 So. 2d 798, 799 (La. App. 3 Cir. 1972).

12.6.13 Medical Records

12.6.13 Medical Records aetrahan Fri, 09/01/2023 - 09:31

Certified medical records may be admitted into evidence without a witness. La. R.S. 13:3714(A) governs the admission of medical records in Louisiana. That statute provides that a certified copy of a medical record shall be received in evidence as “prima facie proof” of its contents, upon the condition that the opposing party has the opportunity to summon the author as witness for cross-examination.1  Because medical records are considered inherently reliable, certification is the only requirement to lay a foundation of authenticity.

In domestic violence cases, medical records can present three common evidentiary issues that lawyers should plan for in advance: (1) notice to the opposing party, (2) hearsay within the medical record, and (3) statements made by your client that conflict with her testimony because she lied about the cause of her injuries. First, the notice requirement of this statute premises admissibility on fair notice to the other side. In non-emergency cases, this means attorneys should provide copies to opposing counsel of the records they intend to use far enough in advance of trial to allow for issuance of a subpoena.2  In emergency cases, notice is a trickier issue. Judges tend to admit certified medical records in emergency proceedings, but it is still a good idea to let opposing counsel know before the case begins that you will be introducing medical records. If opposing counsel nonetheless objects to the record’s admission on notice grounds, there is a strong argument to be made in favor of admitting the records. In emergency cases where a TRO has been issued, it is the defendant’s due process rights that require a quick hearing—to ensure that he is not subjected unfairly to an order of which he had no notice. If the defendant decides that he cannot fairly defend the case on such short notice, it is his right to request more time before being made to do so. If the defendant did not feel he could be prepared to meet the evidence, he could have requested more time to prepare. If he did not, even after being told that petitioner would introduce the records, that was a strategic decision. (Then, if necessary, indicate the extent to which you made efforts to comply with the notice requirement as best as possible).

The two other issues you should plan to deal with relate to the contents of the records. If there is hearsay within the document that you intend to admit as substantive evidence to prove the truth of matter asserted, you may need to argue other hearsay exceptions. To be clear about the rule, the statute allows the contents of the record to be taken as “prima facie proof.” But if, for example, there is a hearsay statement within the report, the report is simply prima facie proof that the statement was made, not of the truth of the statement. For that hearsay to be admitted as substantive proof, it must fall within a hearsay exception. Those exceptions will usually include statements in aid of medical treatment, excited utterance, and prior consistent statement. If medical records show your client attributing her injuries to a source other than abuse by her partner but provide good proof of the injuries, you should often seek to admit them anyway and prepare your client to testify about why she did not report the abuse to her doctor. In some cases, it is because the abusive partner accompanied her to the hospital or told her what to say. In other cases, it is attributable to shame or fear. Know why she told the doctor what she told them and make sense of it to the judge during her direct examination. Don’t forget to prepare your client for tough questioning on this in cross.

  • 1La. R.S. 13:3714(A); see also Judd v. State, Dep’t of Transp. & Dev., 95-1052, pp. 9–10 (La. 11/27/95), 663 So. 2d 690, 696.
  • 2Compare Perniciaro v. Hamed, 20-62, pp. 27–30 (La. App. 5 Cir. 12/16/20), 309 So. 3d 813, 834–36 (medical report that opposing counsel was unaware of until trial and for which no witness was called to authenticate was inadmissible under La. R.S. 13:3714(A)), with State ex rel. C.F., 52,741, pp. 13–14 (La. App. 2 Cir. 5/22/19), 273 So. 3d 1265, 1273 (medical records admissible where certified by medical provider in court and opposing counsel had opportunity to subpoena author of records but decided not to).

12.6.14 Electronic Evidence

12.6.14 Electronic Evidence aetrahan Fri, 09/01/2023 - 09:34

Electronic evidence in the form of emails, text messages, Facebook posts, etc., present both opportunities and challenges for domestic violence litigation. Some of the best evidence of stalking and threats can be found in these sources. The mechanics of having them admitted into evidence can be tricky and require advance planning.

  1. Text messages.
    • When possible, attorneys introducing text messages should have the cell phone with text messages available in court, but should present the evidence through either a printout of the messages or screenshots of them.1  You should rely on your client, not the abusive party, to lay the necessary foundation to authenticate them and to establish both the sender and the recipient of the communication. In general, you should ask your witness to identify the number and the name associated with that number, on the phone. The witness should testify how they know the number is associated with the other party (e.g., the parties had a history of text exchanges on those same numbers and the victim had previously received texts from the person on that number). In some cases, you may want to draw upon something in the substance of the exchange that is specific to the abusive party, such as a reference to something only he would know about, or the use of a nickname or other reference regularly used by the defendant (i.e., referring to a shared child by a nickname only the parties use).
    • Note that in addition to authenticating the substance/sender of the text messages as described above, you may also need to authenticate the photograph or printout of the text messages in the same manner as you would authenticate a photograph through testimony that the printout/photo fairly and accurately depicts the text messages as they appeared on the phone and has not been altered in any way.
  2. Social Media Posts and Other Electronic Evidence.
    • Other forms of electronic evidence such as online videos, social media posts, or even surveillance videos must also be authenticated by a person familiar with the content and the people or places depicted. Louisiana courts have not drawn strict bright line rules for authentication of this type of evidence but have generally allowed the evidence where there is sufficient indication that the evidence is what you say it is.2
  3. Evolving Technology

    • As “spoofing” and deepfakes of electronic have become more common, it is increasingly important that attorneys are well prepared to both authenticate and challenge the authenticity of electronic evidence. Practitioners should routinely update their knowledge on these issues as they evolve and utilize up to date resources that provide guidance.3

  • 1Archaga v. Johnson, 19-85, p. 13 (La. App. 5 Cir. 10/16/19), 280 So. 3d 331, 341 (holding that texts and emails were properly authenticated when the sender’s name was on the printout and when witness testified to receiving the texts on her phone, screenshotting them, and printing them herself); see also State v. Haydin, 17-234, p. 12 (La. App. 5 Cir. 12/20/17), 235 So. 3d 1293, 1301 (holding that a text message was properly authenticated when the witness testified to receiving it on their cell phone, saved the sender’s contact information in their phone, had previously communicated with the sender via phone, and was present when a picture of the text was taken).
  • 2State v. Smith, 2015-1359, pp. 9–10 (La. App. 4 Cir. 4/20/16), 192 So. 3d 836, 842 (applying the “reasonable juror” standard to authentication of social media posts, in which a party must provide enough evidence to support a finding that proffered evidence is what they say it is”); see also State v. Gray, 2016-1195, pp. 25, 30 (La. App. 4 Cir. 6/28/17), 2017 WL 3426021, at *13, *16 (holding that YouTube videos were sufficiently authenticated when witness testimony identified all three YouTube videos, identified the person in the videos, and identified the locations within the videos); State v. Groves, 2020-0450, p. 31-32 (La. App. 4 Cir. 6/10/21), 323 So. 3d 957, 977 (holding that Instagram videos and screenshots were authenticated/admissible when witness testimony identified the videos, screenshots, persons in the videos, when the videos were made, and how they were obtained); State v. Rice, 2017-0446, p. 3 (La. 6/29/17), 222 So. 3d 32, 33-34 (holding that authentication was sufficiently shown for surveillance video evidence when a witness testified that they personally maintained the surveillance system, personally knew the video, and explained how the video was created). But see State ex rel. J.H., 2022-0324, p. 13 (La. App. 4 Cir. 8/9/22), 2022 WL 3210100, at *6–7 (holding that video evidence was not properly authenticated when there was no testimony about the video’s accuracy and when chain of custody was not established).
  • 3See generally Riana Pfefferkorn, ”Deepfakes” in the Courtroom, 29 B.U. Pub. Int. L.J. 245 (2020) (explains what deepfakes are, offers thoughts and guidance on how to challenge suspected deepfakes and defend against deepfake allegations, all from a POV that believes current rules of evidence will be sufficiently equipped to handle growing issue).

12.6.15 Expert Testimony

12.6.15 Expert Testimony aetrahan Fri, 09/01/2023 - 09:40

The admissibility of expert testimony is governed by La. C.E. art. 702. That article provides, “[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”1  Expert testimony can be used in a variety of ways in domestic violence cases. Topics for experts might include showing why a victim’s fear is rational by contextualizing the abuse, illuminating the effects of abuse on the victim or family dynamics, explaining the parenting deficits associated with domestic violence perpetrators, explaining the effects of domestic violence on children, explaining why a child might show fear of, or alignment with, an abusive parent, rebutting allegations of parental alienation, or educating the judge about strangulation, lethality, trauma, or memory.

In practice, many judges believe that testimony from experts with medical or doctorate degrees—such as psychiatrists or psychologists—should be given more weight than testimony from experts with less advanced degrees. But few professionals in these fields have received specialized training in intimate partner violence. Licensed clinical social workers and others working directly with survivors often have the most relevant expertise for cases involving intimate partner violence or child abuse, and they can be qualified as experts. The Post-Separation Family Violence Relief Act creates standards for demonstrative experience that can help practitioners overcome judicial bias that favors advanced degrees over substantive training and expertise. And in at least one Louisiana case, the defendant raised a Daubert challenge to testimony from a clinical social worker with a specialty in domestic violence intervention and prevention, and the Louisiana Fifth Circuit Court of Appeal upheld the trial court’s admission of the testimony.2

  • 1La. C.E. art. 702(A)(1).
  • 2McFall v. Armstrong, 14-1041, pp. 10–11 (La. App. 5 Cir. 9/13/11), 75 So. 3d 30, 37–38; Duplessy v. Duplessy, 12-69, p. 5 (La. App. 5 Cir. 6/28/12), 102 So. 3d 209, 212.

12.6.16 Relevance Issues

12.6.16 Relevance Issues aetrahan Fri, 09/01/2023 - 09:47

Child custody cases under the PSFRVA present important relevance issues that must be raised by lawyers representing victims. Because the PSFVRA mandates specific outcomes once a determination of “family violence” is made, the “best interests” evidence normally considered in custody determinations is usually not relevant. The perpetrator may want to testify that he takes his kids to church every Sunday or coaches the soccer team, but that type of evidence has no bearing in a PSFVRA case. Lawyers should be diligent in objecting to that type of evidence so that it does not detract from the relevant abuse issues.