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.

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).

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).

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).

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.

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.

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.

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.

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).

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).

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.

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.

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).