7.2.2 Selecting an Injunction

When assessing which injunction best meets your client’s needs consider the following:

Differences in Relief. In general, the three injunctions mentioned in the previous section are similarly enforceable, but provide different relief. The PSFVRA explicitly defines injunctions to include restrictive stay-away and no-contact provisions that are not available through injunctions with divorce that merely prohibit abuse.1  Another key difference is the effect of violations on custody determinations. If a petitioner is awarded an injunction under La. R.S. 9:366 (the PSFVRA), any violation of that injunction requires that the abusive parent’s visitation be terminated.2  This law can function both as a strong deterrent for the abusive party and as an important tool to protect victims and their children. It is not available under La. R.S. 9:372 injunctions ancillary to divorce.

On the other hand, La. R.S. 9:372 injunctions against abuse ancillary to divorce include generic prohibitions against conduct that is already illegal (i.e., physical and sexual abuse). La. R.S. 9:372 includes no explicit language regarding stay away provisions, prohibitions on contact, or restrictions on conduct that is not already illegal.3  Even though an Injunction Ancillary to Divorce appears to prohibit only behavior that is already criminal, many courts will include additional remedies, like stay away provisions, if they are specifically pled. In fact, the Louisiana Protective Order Registry Form for section 372 injunctions includes remedies not specifically enumerated in the statute, and those forms create persuasive authority in favor of expanded relief.4

Enforceability. Even a very limited Injunction Against Abuse Ancillary to Divorce creates an important remedy for victims because it creates additional criminal enforcement mechanisms. These orders, like all injunctions prohibiting abuse, are entered into the Louisiana Protective Order Registry and are a crime to violate.5  So an abuser who violates either type of injunction could potentially be charged both with violation of the order and with any underlying crime committed during the violation.

Making a Decision. Given these differences, lawyers should consider how the protections available under each statute fit a client’s specific circumstances, whether the visitation termination provision of the PSFVRA is likely to be invoked against an abuser who violates an injunction, and whether the evidence satisfies the requisite burdens. A petitioner who desires the flexibility of more substantial contact because of shared children may find a no-contact provision impractical and instead opt for a less restrictive order in an Injunction Ancillary to Divorce under section 372. On the other hand, a petitioner who has been stalked and harassed or who feels the risk of future harm is imminent or likely may want a more restrictive order under the PSFVRA to prevent her abuser from using shared children as an excuse to facilitate unwanted or dangerous contact. These issues should be discussed in detail with clients so that lawyers can request and draft orders that are tailored to meet each client’s specific needs and also so that ultimate decisions affecting client safety are the client’s, not the lawyer’s.6  If the client elects not to seek a permanent injunction under the PSFVRA, you should document this decision in writing to the client, after a full discussion of the advantages and disadvantages of the injunction.

• 1La. R.S. 9:361.
• 2La. R.S. 9:366(B).
• 3However, Louisiana’s Protective Order Forms include no contact provisions for injunctions issued under La. R.S. 9:372. See Legal Forms, La. Sup. Ct.
• 4McCann v. McCann, 09-1341, p. 10 (La. App. 3 Cir. 3/10/10), 33 So. 3d 389, 396.
• 5La. R.S. 14:79.
• 6While lawyers should defer to client decisions on issues regarding safety, some clients minimize the risk of future harm and, initially, can be unrealistic about the possibility of safe contact with abusers. See Jacquelyn C. Campbell, et al., The Danger Assessment: Validation of a Lethality Risk Assessment Instrument for Intimate Partner Femicide, 24 J. Interpersonal Violence 653 (2008). In this situation, the lawyer might ask the client to consider whether her expectations of an abuser’s future conduct are supported by the abuser’s past conduct. An unrealistic order that anticipates cooperation by an abuser can be unsafe for victims and can also increase the likelihood of future litigation, which can be quite expensive.