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.

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.’”).

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.

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.

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).

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.

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.

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).

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).

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.

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).

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.

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).

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).

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.

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.

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).

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).

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.

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.

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.

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.

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).

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.

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

• 1La. C.C.P. art. 3607.1; see Louisiana Protective Order Registry Index of Uniform Abuse Prevention Order Forms, La. Sup. Ct.
• 2For further discussion, see Section 3.5.

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).