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.