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