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).

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.

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.

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.

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.

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.

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).

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.

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.

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).

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).

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.

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.

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.