The PSFVRA imposes mandatory standards for determining custody and visitation where there is a “history of family violence.” It is important for advocates to be prepared to argue that these mandatory standards displace much of the discretion available under a traditional “best interest” test.

The PSFVRA creates a custodial presumption in favor of the abused parent and prohibits an award of sole or joint custody to a parent with a history of family violence.1

The custodial presumption in favor of the parent subjected to abuse can be overcome only by meeting a three-part test that includes the existence of circumstances suggesting parental unfitness. To overcome the presumption, the abusive parent must prove: 1) that he has successfully completed a court-monitored domestic abuse intervention program or a treatment program designed for sexual abusers, since the last instance of abuse;2  2) that he is not abusing alcohol or drugs; and 3) that the best interest of the child or children requires the perpetrating parent’s participation as a custodial parent because of the other parent’s absence, mental illness, substance abuse, or other circumstance negatively affecting the child or children.3

The third prong of this test imposes a higher burden than an ordinary “best interest” test. Under the rule of ejusdem generis, “other circumstances” must be like the preceding terms, which include only factors suggesting parental unfitness.4  In other words, mere “best interest” circumstances that do not rise to a level of parental unfitness are not sufficient. If they were, the statute would not have given as examples only factors regarding parental unfitness. In other words, if one interprets the statute to require only a showing of “best interest” circumstances, the statute’s specific reference to an “abused parent’s absence, mental illness, substance abuse” is rendered superfluous and meaningless. This interpretation violates rules of construction requiring that a statute be read to give effect to all its words and parts.5

• 1La. R.S. 9:364(A).
• 2The treatment program must comply with the rigorous requirements set forth in La. R.S. 9:362(3).
• 3La. R.S. 9:364.
• 4Under the statutory construction rule of ejusdem generis, general words are restricted to a sense analogous to the less general words. Pumphrey v. City of New Orleans, 2005-0979 (La. 4/4/06), 925 So. 2d 1202, 1211.
• 5Ritchie v. La. Dep’t of Pub. Safety & Corrections, 595 So. 2d 1158, 1160 (La. App. 1 Cir. 1991).

The PSFVRA prohibits courts from denying custody to the parent subjected to abuse because of problems attributable to the abuse.1  This provision is key because many survivors are dealing with problems attributable to the abuse while litigating custody. Abusive former partners attempt to frame the problems they cause as parenting deficits in the abused parent and weaponize those problems during custody disputes. One common example is mental health issues such as depression and anxiety in the parent subjected to abuse. Other examples include financial, employment, and housing instability created or exacerbated by the violent parent’s abusive and controlling conduct or the exigent circumstances of the separation.

• 1La. R.S. 9:364(C).

Initially, a parent with a history of family violence can only be awarded supervised visitation,1  which must occur in the immediate presence of the supervisor, cannot be overnight or in the abusive party’s home, and must be paid for by the abuser.2

The PSFVRA prohibits the parent with a history of abuse from exercising unsupervised visitation until he satisfies a variety of conditions that include proving successful completion of a batterer intervention treatment program since the last incident of abuse.3  After that, he may petition to have unsupervised visitation, but unsupervised visits will not be granted merely because the treatment program was completed.4  At the hearing, the court must consider evidence of the abusive parent’s current mental health condition and the possibility of continuing abuse. In addition, the parent must prove that visitation would be in the best interest of the child and would not cause physical, emotional, or psychological damage to the child. Even if proven, the court may continue the supervision and impose any continuing or additional restrictions, conditions, and safeguards necessary to minimize any risk of harm to the child.5

The PSFVRA specifically prohibits courts from using an abusive party’s friends, relatives, therapist, or associates as visitation supervisors.6  The requirement that visitation be “supervised” is easily undermined by the appointment of supervisors who would not meaningfully monitor the visitation. Although the court may appoint a victim’s friends or family to supervise visitation if the victim consents,7  supervision by a friend or family member of the victim is rarely a safe or reliable option. Lawyers should explore other safe supervision options in their community in advance of court.

• 1La. R.S. 9:341, 364(E).
• 2La. R.S. 9:362(7).
• 3La. R.S. 9:341(A).
• 4Id.
• 5Id.
• 6La. R.S. 9:362(7); Hollingsworth v. Semerad, 35,264-CA (La. App. 2 Cir. 10/31/01), 799 So. 2d 658 (amending trial court judgment to require “unbiased” supervisor even where PSFVRA was held inapplicable).
• 7La. R.S. 9:362(7).

The PSFVRA prohibits courts from ordering mediation in family violence cases.1  A party who shows that she or any of the children has been a victim of family violence perpetrated by the other spouse or parent may not be ordered to mediate a divorce, child custody, visitation, child support, or community property proceeding.2  This rule applies for any family violence case and does not require that there be a “history” of family violence.3

• 1La. R.S. 9:363.
• 2Id.
• 3Only the PSFVRA’s custodial presumption requires that petitioner show a “history” of family violence that includes either more than one incident of family violence, or one incident resulting in serious bodily injury. La. R.S. 9:364(A).

The PSFVRA mandates permanent protective orders for victims.1  Under the PSFVRA, all orders entered in family violence cases shall include an injunction against abuse. This rule applies for any family violence case and does not require proof of a “history” of family violence.2  The Act defines “Injunction” to include specifically enumerated protections.3  Unless otherwise specified, the injunctions are permanent.

• 1La. R.S. 9:366.
• 2Only the PSFVRA’s custodial presumption requires that petitioner show a “history” of family violence that includes either more than one incident of family violence, or one incident resulting in serious bodily injury. La. R.S. 9:364(A).
• 3La. R.S. 9:362(5).

The PSFVRA requires that visitation available to a parent with a history of family violence be terminated altogether if that parent violates an injunction against abuse.1  This termination appears to be permanent.2

In addition, an abusive former partner’s visitation rights must be completely terminated if it is proven by clear and convincing evidence that the parent sexually abused the child.3  The prohibition on visitation continues until the abusive parent proves that he has successfully completed a treatment program for sexual abusers and that supervised visitation would be in the child’s best interest.4  Even after this is proved, only supervised visitation can be allowed. If necessary, the protecting parent can also invoke Article 1570(F) of the Children’s Code to suspend visits until the child reaches majority.

• 1La. R.S. 9:366(B).
• 2The legislative history of the Post-Separation Family Violence Relief Act makes it clear that the legislature intended to eliminate the courts’ power to allow visitation for violators of injunctions. Compare Act 1091 of 1992 with Act 888 of 1995 and Act 750 of 2003. A brief on this issue is available here.
• 3La. R.S. 9:364(F).
• 4Buchanan v. Langston, 36,520-CA (La. App. 2 Cir. 9/18/02), 827 So. 2d 1186. If sex abuse is proven, however, La. C.Ch. art. 1570(F) may be invoked instead to suspend visitation until the child is eighteen years old.

The PSFVRA creates strict standards for the appointment of mental health professionals in family violence cases.1

La. R.S. 9:365 mandates that any mental health professionals appointed to conduct a custody evaluation in a case where family violence is an issue must have “current and demonstrable training and experience working with perpetrators and victims of family violence.”2  Many attorneys who are untrained in intimate partner violence assume that mental health professionals are knowledgeable and helpful in cases involving family violence. But the vast majority of mental health professionals are not experts in family violence, and an untrained mental health professional could botch the evaluation and endanger the parties and the children.3

When appropriate, contest an evaluator’s qualifications under La. R.S. 9:365.4  Failure to object to an unqualified evaluator at the time of appointment could waive the objection.5  Consider not only objecting to an evaluator’s qualifications, but also opposing the appointment of a custody evaluator entirely.6

• 1 La. R.S. 9:365. For more detailed discussion, see Section 8.8.
• 2Many mental health professionals do not have this training because it is not a required course in professional schools. A minimum of forty hours of specialized domestic violence training should be expected for court-appointed evaluators.
• 3Evan Stark, Rethinking Custody Evaluation in Cases Involving Domestic Violence, 6 J. Child Custody 287 (2009); Robert Geffner, et al., Conducting Child Custody Evaluations in the Context of Family Violence Allegations: Practical Techniques and Suggestions for Ethical Practice, 6 J. Child Custody 189 (2009); Nat’l Council Juvenile & Family Court Judges, Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide (2006).
• 4See, e.g., Ledet v. Ledet, 03-CA-537 (La. App. 5 Cir. 10/8/03), 865 So. 2d 762, 765.
• 5See Babcock v. Martin, 2019-0326, p. 12 (La. App. 1 Cir. 10/24/19), 289 So. 3d 606, 614 (citing Leard v. Schenker, 2006-1116, p. 3 (La. 6/16/06), 931 So. 2d 355, 357); Evans v. Terrell, 27615-CA, p. 8 (La. App. 2 Cir. 12/6/95), 665 So. 2d 648, 653.
• 6See Nat’l Council Juvenile & Family Court Judges, supra. For further discussion of the special requirements for mental health evaluators in PSFVRA cases, see Section 8.8.4.

The PSFVRA exempts abused parents from Louisiana’s relocation notification statute.1  This exemption also exists when an “order” has been issued pursuant to the Domestic Abuse Assistance Act, the Protection from Dating Violence Act, or La. Ch.C. art. 1564. A parent is also exempt if a restraining order, preliminary injunction, permanent injunction, or protective order prohibiting a person from harming or going near the other person is in effect, other than an injunction under La. R.S. 9:372.1 injunction.2

If a custody and visitation order already exists, however, your client may need to request that it be modified if the relocation prevents her from complying with the order’s visitation provisions.

• 1La. R.S. 9:355.2(D)(2).
• 2Id. Note that an injunction against abuse ancillary to divorce under La. R.S. 9:371 qualifies for exemption, but an injunction against harassment under La. R.S. 9:372.1 is not exempt.

The PSFVRA shifts costs and attorney fees to the party who has perpetrated abuse. 

Many perpetrators of abuse continue their harassment of the victim through protracted custody and visitation litigation. The PSFVRA discourages vindictive litigation by abusive former partners by mandating that all attorney fees and costs be paid by the perpetrator of family violence. The party who committed family violence must pay all attorney fees incurred by the victim while enforcing her rights under the Act, including attorney fees associated with defending against the abusive parent’s requests for increased visitation or custody modification. The perpetrator of abuse must pay the victim’s reasonable attorney fees even if he is the prevailing party in subsequent litigation.  The trial court is obliged to award attorney fees under this provision even if not pled by the non-abusing parent.

The custody and visitation provisions of the PSFRVA are triggered by finding that there is a “history of family violence.” The Act defines a “history of perpetrating family violence” as either one incident of family violence resulting in serious bodily injury or more than one incident of family violence.1

A petitioner may also invoke PSFVRA protections when a parent has subjected any of his or her children, stepchildren, or any household member to sexual abuse, or when a parent has willingly permitted another to abuse any of his children or stepchildren, despite having the ability to prevent the abuse.2

• 1La. R.S. 9:364(A). Note that this definition resulted from a statutory amendment that occurred in response to a bad decision in Simmons v. Simmons, in which the court refused to apply the PSFVRA even though the husband admitted to hitting his wife several times – but never in the presence of the children and because he was “provoked” by his wife’s adultery. 26,414-CA (La. App. 2 Cir. 1/25/95), 649 So. 2d 799. The Simmons definition of history of family violence has been legislatively overruled. As noted by Hicks v. Hicks, the outdated Simmons test for history of family violence is wrong. 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261. Generally, cases on “history of family violence” decided before the 1995 amendment are likely to be wrong.
• 2La. R.S. 9:364(A).

“Family violence” includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code, except negligent injury and defamation, committed by one parent against the other parent or any of the children.1  This definition of family violence tracks the definition of “domestic abuse” in the Domestic Abuse Assistance Act. The two definitions differ only in that the PSFVRA limits acts of “family violence” to acts perpetrated by one parent upon the other parent (as opposed to the various relationships between parties that can invoke application of the DAAA).2  Amendments made to La. C.C. art. 134(B) in 2018 appear to have erased this distinction, so that acts of domestic abuse against other household members or dating partners now also trigger the PSFVRA custody and visitation restrictions.3   If so, the change would supersede prior case law excluding incidents of abuse committed by a parent against a non-parent, such as a girlfriend or a stepmother.4

Because the definitions are the same, case law on what constitutes “domestic abuse” under the DAAA is controlling when determining “family violence” under the PSFVRA.5  “Family violence,” like domestic abuse, includes battery, even if merely offensive and not injurious; it also includes threats to injure without touching, and forced sex.6  The violence does not have to be frequent or continuous.7  The definition is subject to broad interpretation because of the “including but not limited to” language, but as in DAAA cases, courts are unlikely to apply the PSFVRA in cases that do not involve physical violence, threats, assault, or an offense against the person that constitutes a violation of the criminal code.8  Because stalking is an offense against the person that violates the criminal code, the Post-Separation Family Violence Relief Act should apply in intimate partner stalking cases, even in the absence of direct threats or physical violence.

Though courts will not usually apply the PSFVRA in cases that involve no threats of harm or physical violence, lawyers should consider whether some cases with less typical fact patterns still warrant the Act’s application. For example, in Cockheran v. Christopher, the Fourth Circuit affirmed the trial court’s application of the PSFVRA where one of the acts of “family violence” was the father’s attempt to control the mother by threatening to turn her over to a former sex-trafficker from whom she was hiding.9  There is a legitimate argument that, from the standpoint of effecting the Act’s protective purpose, abuse in the form of extreme control, coercion, and intimidation should sometimes be included within the meaning of the statute. Research suggests that control and coercion are stronger predictors of lethality and other negative outcomes for victims than are the frequency or severity of past physical abuse.10  So, a victim who has not been physically abused but who is not allowed to leave her home without her husband’s permission, who has been “punished” by abuse of a family pet, or whose activities are routinely monitored and restricted, may face lethality risks upon separation that would make the Act’s application consistent with its statutory purpose.

Even when a good faith argument exists for applying the Act’s protections in absence of physical abuse, these cases can sometimes present challenges and require expert testimony. Attorneys and their clients should carefully weigh the risk that the victim may lose credibility with a judge who could conclude that she is exaggerating the seriousness of her situation and making unsubstantiated claims of abuse. The abusive party may accuse the victim of making baseless claims to interfere with the parent/child relationship and mount a “parental alienation” defense. Cases involving claims of parental alienation can result in dangerous custody outcomes.11

• 1La. R.S. 9:362(3); G.N.S. v. S.B.S., 35,348-CA (La. App. 2 Cir. 9/28/01), 796 So. 2d 739 (granting sole custody based on violence to child); Duhon v. Duhon, 01-0731 (La. App. 3 Cir. 12/12/01), 801 So. 2d 1263 (unjustified corporal punishment of child constituted “family violence”); Hollingsworth v. Semerad, 35,264-CA (La. App. 2 Cir. 10/31/01), 799 So. 2d 658 (a father’s abuse of the stepmother does not allow the mother to invoke the PSFVRA to restrict custody and visitation); Hudson v. Strother, 2017-1044 (La. App. 3 Cir. 5/2/18), 246 So. 3d 851 (a boyfriend’s abuse of the mother does not allow the father to invoke the PSFVRA to restrict custody and visitation). But see Merrells v. Dotray, 53,551 (La. App. 2 Cir. 7/8/20), 299 So. 3d 208, 214 (holding that La. C.C. art. 134(B) requires consideration of violence against prior dating partner under the 2018 amendments).
• 2At least one court of appeal has concluded that this distinction no longer exists since Article 134 was amended in 2018. Article 134(B) now states that “in cases involving a history of committing family violence, as defined in La. R.S. 9:362, or domestic abuse, as defined in R.S. 46:2132,” visitation must be determined under La. R.S. 9:341 and La. R.S. 9:364. See Merrells, 53,551, 299 So. 3d at 214.
• 3Merrells, 53,551, 299 So. 3d at 214 (finding that district court abused its discretion in awarding domiciliary custody to father under best interest test because under Article 134(B), trial court was bound to consider father’s prior conviction of domestic abuse battery against a dating partner and incident where he damaged mother’s front door and raised hand to threaten to hit her).
• 4Hollingsworth, 35,264-CA, 799 So. 2d 658 (holding that a father’s abuse of the stepmother does not allow the mother to invoke the PSFVRA to restrict custody and visitation).
• 5For further discussion, see Section 4.4.1.
• 6See Hicks v. Hicks, 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261; Michelli v. Michelli, 93 CA 2128 (La. App. 1 Cir. 5/5/95), 655 So. 2d 1342; Harper v. Harper, 537 So. 2d 282 (La. App. 4 Cir. 1988).
• 7Michelli, 93 CA 2128, 655 So. 2d 1142; Merrells, 53,551, 299 So. 3d at 214 (finding that district court abused its discretion in awarding domiciliary custody to father under best interest test where court failed to consider father’s prior conviction of domestic abuse battery against a dating partner and for incident where he damaged mother’s front door and raised hand to threaten to hit her).
• 8Smith v. Smith, 44-663 (La. App. 2 Cir. 8/19/09), 16 So. 3d 643, 651 (holding the trial court did not err in refusing to apply the PSFVRA where evidence showed that each party provoked verbal and physical altercations and no serious bodily injury had occurred); Bourgeois v. Bourgeois, 16-676 (La. App. 5 Cir. 4/12/17), 218 So. 3d 684 (holding the trial court did not err in refusing to apply the PSFVRA where evidence showed that wife’s angry and violent behavior stemmed from being confronted with husband’s infidelity and instances did not continue post-separation).
• 9Cockheran ex rel. Cockheran v. Christopher, 2021-0370, p. 3 (La. App. 4 Cir. 10/28/21), 331 So. 3d 389, 392.
• 10Evan Stark, Rethinking Custody Evaluation in Cases Involving Domestic Violence, 6 J. Child Custody 287, 293 (2009); Jacquelyn Campbell, et al., Risk Factors for Femicide in Abusive Relationships, 93 Am. J. Pub. Health 1089 (2003). This study found that three factors (1) separation, (2) the presence of a weapon, and (3) the existence of control increased lethality risk nine-fold. The frequency and severity of past violence was a less accurate predictor of dangerousness. Id.
• 11For further discussion of the misuse of “parental alienation” as a defense, see Section 8.8.3.

The best interest factors enumerated in La. C.C. art 134 do not apply once a finding of family violence triggers application of the PSFVRA.1  The “best interest” standard is not operative in a family violence case except in two specific situations. One situation in which the standard may be operative occurs after the parent with a history of family violence or domestic abuse has satisfied the requirements to request unsupervised visitation under La. R.S. 9:341(A). In order to obtain unsupervised visitation, that parent must show that unsupervised visits would be in the child’s best interest and would not cause physical, emotional, or psychological damage to the child. The second situation arises when the parent with a history of family violence or domestic abuse is seeking to overcome the custodial presumption and has already proven successful completion of a court-monitored domestic abuse intervention program, that he is not abusing alcohol or using illegal substances, and that the other parent’s absence, mental illness, substance abuse or similar issue relating to unfitness requires the abusive parent’s participation as a custodial parent.2

• 1La. C.C. art. 134(B).
• 2La. R.S. 9:364(B). For discussion on the necessity that the “best interest” factors in this situation must relate specifically to the custodial parent’s fitness, see Section 8.3.2. For discussion of this three-part test in a modification case, see Section 8.9.2.

Once a party pleads the PSFVRA, the court should use a logical procedure for determining whether it applies. The court should first examine each alleged incident of family violence to determine whether it was proved and, for each incident that was proved, whether it meets the definition of “family violence.” If any one incident proved by the petitioner resulted in serious bodily injury or if the petitioner proved more than one incident, she has met her burden of showing a “history of family violence” and the Act must apply.1

• 1See Hicks v. Hicks, 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261.

Unfortunately, in many cases involving intimate partner violence, family courts treat victims as if they are mutually violent and equally responsible for family “conflict.” As a result, the court may find that both your client and her abusive former partner have a history of perpetrating abuse. The PSFVRA addresses this scenario. Where a court finds that both parents have a history of perpetrating abuse, it must award sole custody to the parent who is less likely to continue the family violence.1  Lawyers should be prepared to present evidence, testimony, and argument on this issue, should it become necessary during the litigation.

All case planning in domestic violence cases should anticipate that abusive former partners will allege that the victim is either the primary aggressor or mutually violent. Although anger is the prevailing emotional response to abuse, judges often believe that anger is inconsistent with the way “real victims” behave. When victims present as angry or resentful toward the partners who have abused them or when they admit to fighting back, many courts are quick to conclude they are mutually violent.2  Women of color – particularly Black women – are more often perceived as mutually violent, in part because of racist stereotypes.3  Pervasive cultural stereotypes that “real” victims are fearful and passive and suffer from “learned helplessness” contribute to this problem. Carefully consider how these issues will play out in your case, and plan accordingly.

• 1La. R.S. 9:364(D).
• 2Leigh Goodmark, When Is A Battered Woman Not A Battered Woman? When She Fights Back, 20 Yale J.L. & Feminism 75 (2008). Ironically, decades of judicial education programming have exacerbated this problem by promoting simplistic concepts of “learned helplessness,” and “battered women’s syndrome.” Both concepts tend to be presented in ways that essentialize the experiences of women subjected to abuse, pathologize the rational ways that women respond to abuse, and reinforce the false stereotype of a passive, white, and heterosexual victim. This article is a great resource for attorneys representing domestic violence survivors in civil litigation. Goodmark calls out some of the most common ways that lawyers seek to make their client’s courtroom narratives conform to unrealistic and harmful myths about victims and challenges us to collaborate with our clients to develop “counter stories” that more authentically reflect their experiences, beliefs, and actions.
• 3Id.

You may sometimes be faced with a situation where you wish to introduce evidence of family violence that occurred before a prior considered decree or stipulated judgment. In custody cases, it is common for victims to have previously litigated or negotiated a custody case without raising issues of domestic violence. Many family law attorneys do not adequately advise their clients about domestic violence in custody litigation, resulting in stipulated or considered decrees that fail to address domestic violence or victim and children safety.

In a case for custody modification, the court will determine whether to admit evidence of abuse that predates a prior custody decree on a case-by-case basis.1  The evidence should neither be automatically excluded nor automatically admitted.2  Instead, the evidence should be admitted if it is relevant and material and involves an issue that the parties did not have a “full and fair opportunity to litigate” in the prior proceeding.3  Where issues of abuse have never been meaningfully considered, the interests of justice and the best interest of the child would require the Court’s consideration. This logic rings particularly true in cases where the abused parent was awarded primary custody in a prior consent decree, so it was not necessary that she litigate the issue of abuse. If, thereafter, the parent with a history of family violence seeks increased custodial access, equitable principles and the best interest of the children require examination of the abuse.

For custody cases that were “actually adjudicated,” res judicata may bar specific claims,4  but cannot bar modification. In Louisiana, judgments awarding custody are “always subject to modification and thus are never final.”5   Courts have opined that children and family circumstances will change throughout a child’s lifetime, so in general, the doctrine of res judicata does not apply to child custody cases.6  To the contrary, the court is bound to consider all matters relevant to the best interests of the child, including parental conduct that occurred prior to the last custody decree.7

Even if, however, res judicata applied to custody cases, it would not apply where the interests of justice are not served by its use. Louisiana’s res judicata statute explicitly contemplates equitable application of the doctrine. La. R.S. 13:4232(1) creates a provision for “exceptional circumstances,” and the official comments to the statute explain, “this discretion is necessary to allow the court to balance the principle of res judicata with the interests of justice.”8

• 1Raney v. Wren, 98 CA 0869 (La. App. 1 Cir. 11/6/98), 722 So. 2d 54, 58.
• 2Id.
• 3Id. at 57 (citing Smith v. Smith, 615 So. 2d 926, 931 (La. App. 1 Cir. 1993)). The trial court erred in a custody modification case by excluding evidence of physical and verbal abuse that occurred prior to the stipulated custody judgment. Id. The court found that the trial court erred because the parties did not have previous opportunity to litigate the issue. Id.
• 4La. R.S. 13:4232(3); see also Redman v. Bridgefield Casualty Insurance Co., 11 CA 651 (La. App. 5 Cir. 2/28/2012), 88 So. 3d 1087, 1092.
• 5Kaptein v. Kaptein, 2019-0784, p. 3 (La. App. 4 Cir. 1/22/20), 289 So.3d 1198, 1200.
• 6La. R.S. 13:4232. The Official Comments to section 4232 explain that “the general principle of res judicata is subject to the exceptions set forth in La. R.S. 13:4232 and to any other exceptions that may be provided for in the substantive law as, for example, in cases of family matters.” See also La. R.S. 13:4232(3) (excepting matters incidental to divorce from doctrine of res judicata except as to matters actually adjudicated); Hulshoff v. Hulshoff, 11-1055 (La. App. 3 Cir. 12/7/11), 81 So. 3d 57; Granger v. Granger, 11-77 (La. App. 3 Cir. 6/15/11), 69 So. 3d 666; Kleiser v. Kleiser, 619 So. 2d 178 (La. App. 3 Cir. 1993); Hansel v. Hansel, 2000-CA-1914 (La. App. 4 Cir. 11/21/01), 802 So. 2d 875.
• 7La. R.S. 13:4232(A)(1).
• 8Id.

If the petitioner proves a history of family violence, the court must apply the protections of the PSFVRA.1  Louisiana’s courts of appeal have consistently admonished trial courts on the Act’s mandatory application.2  Even more, the trial court may not avoid application of the Act’s protections by refusing to decide the question of whether there is a “history of family violence.”3  Once the Act has been pled, all custody determinations must be predicated on a finding about family violence; the court may not even issue an interim or temporary custody order without first determining that issue.4  Even where the PSFVRA has not been pled, it is improper to make a custody determination before resolving outstanding pleadings alleging domestic violence, because related DAAA proceedings could determine whether the PSFVRA applies.5

La. C.C. art. 134(B) requires that cases involving family violence be determined in accordance with the PSFVRA “whether or not a party has sought relief under any applicable law.”6  This provision was adopted in 2018 and supersedes prior conflicting case law holding that the Act’s application was discretionary if the Act had not been pled.7  An appellate court may render judgment applying the Act, where the trial court findings show a history of family violence.8

• 1See La. C.C. art. 134(B). Although the trial court has discretion in its factual determination on “family violence,” once the finding has been made, the court is bound to apply the Act.
• 2Barak v. Saacks, 2021-0756 (La. App. 4 Cir. 10/12/22), 2022 WL 6944282, at *14, writ denied, 2022-01734 (La. 1/11/23) (reversing trial court that made finding that there was a history of family violence but awarded father unsupervised visitation before completion of court-monitored batterer’s intervention program); see Durand v. Rose, 2022-0300 (La. App. 4 Cir. 9/15/22), 2022 WL 4244409, writ denied, 2022-01727 (La. 1/18/23), 353 So. 3d 127; see also Melancon v. Russell, 18-48 (La. App. 5 Cir. 10/17/18), 258 So. 3d 955 (PSFVRA relief becomes operable once there is a finding of a history of family violence, regardless of whether specific Act pled); Ledet v. Ledet, 03-CA-537 (La. App. 5 Cir. 10/8/03), 865 So. 2d 762 (reversing and remanding for a determination on family violence); Lewis v. Lewis, 34,031-CA (La. App. 2 Cir. 11/3/00), 771 So. 2d 856; Hicks v. Hicks, 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261 (reversing custody award to father where uncontroverted evidence proved at least on act of family violence resulting in serious bodily injury, but trial court failed to apply the act); Crowley v. Crowley, 96-CC-2413 (La. 10/11/96), 680 So. 2d 661 (reversing trial court that made finding that there was a history of family violence but did not apply the act’s requirement that the victim be awarded sole custody).
• 3Ledet, 865 So. 2d 762. In Ledet, the trial court refused to hold an evidentiary hearing on the abuse allegations and suspended ruling on the abuse allegations for sixty days. The appellate court ordered the trial court to (1) hold and complete a hearing on the “family violence” allegations within fifteen days, (2) make findings on the “family violence” allegations, and (3) set custody in accordance with those findings and the PSFVRA. Id.
• 4Id.; Ford v. Ford, 01-387 (La. App. 3 Cir. 10/17/01), 798 So. 2d 316; McFall v. Armstrong, 10-1041 (La. App. 5 Cir. 9/13/11), 75 So. 3d 30, 40.
• 5La. C.C. art. 134(B); see also McFall, 75 So. 3d at 40 (reversing custody determination made before Domestic Abuse Assistance Act (DAAA) petition was resolved and holding that the DAAA proceeding will determine whether the court is mandated to apply the Post-Separation Family Violence Relief Act).
• 6La. C.C. art. 134(B)
• 7Melancon v. Russell, 18-48 (La. App. 5 Cir. 10/17/18), 258 So. 3d 955 (PSFVRA relief becomes operable once there is a finding of a history of family violence, regardless of whether specific Act plead). But see Nguyen v. Lee, 07-CA-81 (La. App. 5 Cir. 5/15/07), 960 So. 2d 261, 265 (PSFVRA cannot be pled for the first time on appeal).
• 8Durand, 2022-0300, 2022 WL 4244409 (granting sole custody to mother and reversing trial court that made finding that there was a history of family violence but awarded father joint custody despite no evidence being presented that father had completed treatment program as required by the PSFVRA).

In most cases, a court cannot refuse to make a finding of “family violence” if the evidence is uncontroverted. Even though the trial court’s “family violence” determination is entitled to great weight and will not be disturbed on appeal absent clear abuse of discretion,1  the trial court must apply the Act as written and may not impose a higher burden on the petitioner than that demanded by the Act.2  Thus, where the victim offers unrefuted testimony about specific acts of family violence, she does not also have to produce corroborating evidence.3  The uncontradicted evidence must be taken as true in the absence of circumstances in the record casting suspicion on its reliability.4  Of course, as a practical matter, lawyers should introduce all corroborating evidence available.

As a result, the court may grant relief on the victim’s testimony alone. Often, a victim is the only witness to her abuse. The burden of proof for family violence is on the victim. However, this burden can be met by the victim’s testimony if the court finds her credible.5  Of course, corroborating evidence is very helpful in what are often referred to as “she said/he said” cases.

• 1Buchanan v. Langston, 36,520 (La. App. 2 Cir. 9/18/02), 827 So. 2d 1186; Melancon v. Russell, 18-48 (La. App. 5 Cir. 10/17/18), 258 So. 3d 955 (citing Dufresne v. Dufresne, 08-215 (La. App. 5 Cir. 9/16/08), 992 So. 2d 579, 586).
• 2Hicks v. Hicks, 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261, 1266.
• 3Id. at 1264.
• 4Id. (citing Chargois v. Guillory, 97–439 (La. App. 3 Cir. 10/29/97), 702 So. 2d 1068; Donahoe v. Jefferson Council on Aging, 04-CA-178 (La. App. 5 Cir. 10/26/04), 887 So. 2d 549, 552.
• 5See, e.g., Porter Parson v. Parsons, 2009-2120 (La. App. 1 Cir. 6/11/10), 2010 WL 2342759 (protective order affirmed despite fact that husband and two of his friends denied the abuse); see also McCann v. McCann, 09-1341 (La. App. 3 Cir. 3/10/10), 33 So. 3d 389, 395.

Legislative amendments in 2018 eased visitation restrictions on parents with a history of family violence.1  Prior to the change, a parent with a history of family violence was allowed only supervised visitation, and “completion of” a treatment program for batterers was a pre-condition to even supervised visits.2  Now, a parent with a history of family violence may be awarded supervised visitation without first satisfying any pre-conditions. It is important to note that the change makes supervised visits permissible without pre-conditions; it does not create an entitlement of supervised visits for the parent with a history of abuse. Nothing in the statute would prevent a court from imposing pre-conditions to supervised visits or even denying supervised visits altogether, if necessary to protect the child.3

Successful completion of a 26-week batterer intervention program since the last incident of abuse is now one of several pre-conditions to unsupervised visits.4  Importantly, the 2018 revisions created an explicit requirement that the treatment program have been completed “since the last incident of domestic violence or family abuse.” This addition is helpful to lawyers representing survivors because many abusive former partners have previously completed batterer intervention classes as the result of prior arrests or convictions for abuse. Even if this requirement did not exist, acts of abuse occurring after completion of a treatment program could be proof that the treatment was not “successful.”

In addition to the requirement of batterer intervention, at a hearing to decide unsupervised visitation the court must consider evidence of the abusive parent’s current mental health condition, the possibility of continuing abuse, and whether the perpetrating parent has proven that visitation would be in the best interest of the child and would not cause physical, emotional, or psychological damage to the child. Even if these conditions are satisfied, the court may continue the supervision and impose any restrictions, conditions, and safeguards necessary to minimize any risk of harm to the child.5  A parent’s history or pattern of abuse against previous dating or intimate partners would be relevant to the issue of whether there is a possibility of continuing abuse, even if abuse of other dating partners was not considered in the original PSFVRA determination.6  Additionally, an abusive party’s unwillingness to acknowledge the abuse or the harm it caused has direct relevance to the issue of whether expanded visitation could cause emotional or psychological damage to the child.

For reasons described throughout this chapter, it may never be in the best interest of a child who has been subjected to physical, sexual, or emotional abuse to have unsupervised visitation with the abusive parent. Continued or unmonitored contact with an abusive parent can cause confusion and fear, especially in cases where the abusive parent refuses to acknowledge the abusive behavior and wants to ignore that it ever happened. Lawyers may consider asking that such acknowledgement, in a therapeutic setting with an expert in trauma and abuse, be made a pre-condition to even supervised visits. Whether the child was the subject of abuse, or witnessed it against a parent, it can take a long time (and a lot of therapy) before unsupervised visitation is in a child’s best interest.

Note that many attorneys conflate or confuse the PSFRVA requirements for overcoming the custodial presumption with the requirements for obtaining unsupervised visits. The tests are different, and the burden to overcome the custodial presumption in favor of the abused parent is much higher than the burden to request unsupervised visits. Some lawyers who represent the party with a history of abuse will try to take advantage of this confusion and assert a lower burden for overcoming the custodial presumption.

• 1La. R.S. 9:341.
• 2La. R.S. 9:364(C) (2011).
• 3La. R.S. 9:341(A).
• 4La. R.S. 9:341.
• 5La. R.S. 9:341(A).
• 6See generally Merrells v. Dotray, 53,551 (La. App. 2 Cir. 7/8/20), 299 So. 3d 208, 214 (father’s prior conviction of domestic abuse battery against a previous dating partner relevant to risk of continuing abuse).

Selecting an appropriate visitation supervisor can present practical challenges for litigants and attorneys. The PSFVRA does not allow supervision by people associated with the party who is abusive, and it is generally not safe or appropriate for a victim’s friends or family to supervise. The best option is usually a supervised visitation center. In communities that lack supervised visitation centers (i.e., most communities), lawyers and clients have limited options. Petitioners may specifically request that the court appoint a police officer or competent professional as the supervisor.1  Supervisors can be police officers with some sensitivity to juvenile or domestic issues. These officers may be more willing and able to intervene to prevent harm to the child during a visit. Social workers in your community may also be available for supervision. It is a good idea to have a specific list of potential supervisors and their contact information available at the hearing on custody. Otherwise, the court may appoint a supervisor with whom you are unfamiliar and who may be ill-suited to supervise in a family violence case because they lack understanding about the physical and emotional risks to children.

When selecting a supervisor, keep in mind that people who abuse their intimate partners can be highly effective at manipulating and co-opting mental health and social work professionals, including visitation supervisors. Most mental health professionals have little, if any training in domestic violence, and even those that do rarely have enough to meaningfully understand basic dynamics of abuse.2  Parents with a history of perpetrating abuse are likely to be on their best behavior in settings where they know they must be. And children are often delighted to see even an abusive parent in a setting where they are safe and where “good daddy” shows up to see them. Courts often give far too much weight to testimony about parent-child observations in a supervised setting; information from these visits rarely leads to relevant or probative evidence in abuse cases.

For this reason, lawyers should be cautious about eliciting professional opinions from even trained visitation supervisors and should seek to exclude the testimony if offered by supervised party. A visitation supervisor’s testimony is usually not relevant to any issue that would be before the court, other than the abusive party’s violation of orders. The mere fact that a parent with a history of perpetrating abuse does not abuse in a supervised visitation setting, or that a child enjoys the parent’s company in a safe supervised setting has no probative value on issues such as whether there is a history of past abuse, whether there is a likelihood of future abuse, or whether unsupervised visitation is in a child’s best interest.

• 1La. R.S. 9:362(7).
• 2Joan S. Meier, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 J. Gender, Soc. Pol’y, & L. 657, 708 (2003).

For unsupervised visits, or to overcome the custodial presumption, the PSFVRA requires that a parent with a history of perpetrating domestic violence successfully complete a court-monitored domestic abuse intervention program as defined in R.S. 9:362. The program must have been completed since the last incident of abuse.1

A qualifying program and provider must meet the following standards:

• The program must be comprised of at least twenty-six in-person sessions.
• The program must follow a model designed specifically for perpetrators of domestic abuse, and must be monitored by the court.2
• The provider must have experience working directly with perpetrators and victims of domestic abuse.
• The provider must have experience facilitating batterer intervention groups.
• The provider must have training in the causes and dynamics of domestic violence, characteristics of batterers, victim safety, and sensitivity of victims.3

If a client’s abusive former partner seeks a visitation modification under this provision, the modification may be contested on multiple grounds: whether the treatment program satisfies the statutory definition, whether the facilitator/provider possesses the requisite experience and expertise, and whether there is reason to believe the treatment was successful.

• 1La. R.S. 9:364(B)(1).
• 2La. R.S. 9:362.
• 3La. R.S. 9:362(3).

Louisiana’s statute adopts standards associated with what is known as the “Duluth” model of batterer intervention.1  While the Duluth model is the most universally accepted among a variety of potential models for batterer intervention, studies show that it is imperfect and often ineffective.2  Research on the effectiveness of batterer intervention programs is controversial and sometimes conflicting.3  In recent years, many alternative models have emerged, including models that seem to have successfully incorporated principles of restorative justice.4  But the research on these emerging models is similarly controversial. For these reasons, lawyers should be prepared to address the unrealistic expectations clients sometimes have about the effectiveness of the batterer intervention their former partners are ordered to participate in. Clients are often overly optimistic about the prospects of behavioral change.

Before changes to the law in 2014, treatment program requirements were more ambiguous, and some courts accepted “anger management” classes as a substitute for batterer intervention. Lawyers should still be prepared to aggressively challenge whether a treatment program meets the statutory requirements. Many abusive former partners or their attorneys still attempt to obtain unsupervised visits by producing documents showing participation in “anger management” counseling or printable “certificates” showing completion of an on-line course. These documents should be excluded as unauthenticated hearsay. Even if admissible, they fail to satisfy the statutory requirements.5

As explained by the dissenting opinion in DOH v. TLH, which was decided before the 2014 changes, anger management programs do not provide meaningful rehabilitation for batterers.6  Anger management is not a course of therapy specifically designed for perpetrators of domestic violence, and it is not recognized as such by experts in domestic violence. If a therapist conflates the two types of therapies, that fact alone suggests that he or she is untrained in domestic violence. Moreover, many experts believe that anger management programs increase danger to victims. The United States Department of Justice Office on Violence Against Women, which funds domestic violence programs nationwide, asserts that the practice of substituting anger management for batterer intervention compromises victim safety and allows perpetrators to escape responsibility.7

• 1What is the Duluth Model?, Domestic Abuse Intervention Programs.
• 2Amie Zarling & Dan Russel, A Randomized Clinical Trial of Acceptance and Commitment Therapy and the Duluth Model Classes for Men Court-Mandated to a Domestic Violence Program, 90 J. Consulting & Clinical Psychology 326, 327 (2022); L.G. Mills, et al., The Next Generation of Court-Mandated Domestic Violence Treatment: A Comparison Study of Batterer Intervention and Restorative Justice Programs, 9 J. Experimental Criminology 65, 68 (2013).
• 3Shih-Ying Cheng, et al. Compared to What? A Meta-Analysis of Batterer Intervention Studies Using Nontreated Controls or Comparison, 22 Trauma, Violence, & Abuse 427, 497, 505 (2021).
• 4Mills, et al., Next Generation, supra, at 69.
• 5On the statutory requirements for these programs, see Section 8.7.
• 6D.O.H. v. T.L.H., 01-174 (La. App. 3 Cir. 10/31/01), 799 So. 2d 714, 722–32 (Woodard, J., dissenting).
• 7See Off. of Violence Against Women, U.S. Dep’t of Just., FY 2023 Solicitation Companion Guide: OWW Grant Programs & Post-Award Information.

In addition to challenging the program itself, lawyers should carefully examine the training and qualifications of the program’s facilitator(s). Very few mental health professionals possess the training required by this statute.1  In the past, trial courts have primarily examined only the program itself, but this statutory provision also puts the burden on the defendant to prove the credentials of the specific program therapist or facilitator with whom they worked during their 26 weeks of therapy. The provider should be subpoenaed to court and subject to cross-examination. It is unclear how the parent with a history of abuse could meet his burden without testimony from the provider.2

• 1La. R.S. 9:362(3).
• 2See D.O.H. v. T.L.H., 01-174 (La. App. 3 Cir. 10/31/01), 799 So. 2d 714, 722–32 (Woodard, J., dissenting).

As described above,1  some studies suggest that burgeoning court reliance on batterer intervention programs is problematic because they largely fail to prevent or even reduce future violence.2  Based on the research available, it is more likely than not that the parent with a history of committing family violence will not meaningfully change his behavior because of the 26-week program he is ordered to participate in. This means that lawyers should be prepared to assert that the abusive parent’s completion of batterer’s intervention has not been “successful” as required under the PSFRVA.

“Successful” completion clearly requires more than mere attendance. Any statutory interpretation that imposes only the formal requirement of attendance belies the clear legislative purpose of the Act, the clear language of the statute, and renders the word “successful” meaningless.  A certificate of completion showing attendance at batterer intervention is not indicative of “successful completion” as a matter of fact or law.

Presumably, “successful” completion requires that a party not only meet the formal requirements of attendance and cooperation, but also show that he accepts responsibility for his abusive behavior and has gained insight into its impact on his former partner, his children, and his parenting behavior; these are key elements of the batterer intervention curriculum. So, if the abusive party “completes” a course by means of attendance but continues to blame the victim and deny the harm of his abusive behavior, the “success” of his therapy should be challenged.

An expert in batterer intervention can testify that the continuing denial of abuse is evidence that treatment has not been successful. He or she should also be able to provide examples of behavior that would reflect meaningful reform. When testifying on cross-examination, the parent with a history of violence is rarely willing to admit to their past violence or acknowledge its impact on those harmed by it. Instead, they will continue to minimize, deny, and blame, a tactic associated with unreformed domestic violence perpetrators. A lawyer who specializes in representing survivors can conduct a much more effective cross-examination of an abusive party if he or she has taken the time to learn about the goals and curriculum associated with batterer intervention programs.

• 1See Section 8.7.2.
• 2Michael Rempel, Batterer Programs and Beyond, in 1 Violence Against Women in Families and Relationships 180 (Evan Stark & Eve Buzawa. eds., 2009). Given the discouraging evidence on program efficacy, some experts suggest that batterer intervention programs should be used to promote a more achievable goal of accountability, rather than rehabilitation. Id. at 188.

Appointing a custody evaluator is unlikely to help in a family violence case and can often make things worse for victims and their children. Although most family attorneys simply capitulate to evaluator appointments—or even ask for them—lawyers representing victims should be especially weary. As explained below,1  the appointment of an evaluator makes it more likely that the parent with a history of abuse will be awarded child custody.

Realistically, it is not easy to avoid the appointment of an evaluator in some custody cases. But the following sections explain why lawyers should try and provide some basic tools and arguments to help.

• 1See Section 8.8.2.

A growing body of studies suggests that the appointment of a custody evaluator makes it less likely that family courts will respond appropriately to reports of abuse in custody cases.1  Some experts have concluded that the increasingly frequent appointment of custody evaluators and guardians ad litem is a principal reason that abusers routinely win custody.2  Many, if not most, custody evaluators lack meaningful training and expertise in even basic dynamics of domestic violence; they are unfamiliar with reputable professional literature in the field, and do not believe that domestic violence is an important factor to consider in making custody recommendations.3  In fact, a great deal of evidence suggests that evaluators are biased against believing reports of abuse because they are unaware that contested custody cases have much higher rates of domestic violence than uncontested cases.4  The National Council of Juvenile and Family Court Judges cautions against using custody evaluations in abuse cases and has published a guide for judges that explains the reasons.5  The guide is an excellent resource for attorneys opposing the appointment of an evaluator in domestic violence cases.

General mental health evaluations and psychological testing in domestic violence cases present similar problems. Many custody evaluations include both. Psychological testing tends to normalize abusers and pathologize victims.6  Domestic violence is not a mental health problem, and abusers typically appear “normal” in response to psychological testing and evaluation.7  People subjected to abuse, on the other hand, can present poorly in mental health evaluations that do not properly account for their experiences of abuse and are done by someone who lacks expertise in trauma and abuse. A poorly conducted mental health evaluation of a victim suffering from the effects of abuse will usually pathologize her normal responses.8  It is common for some psychological testing to result in victims being labeled anxious, paranoid, “histrionic,” borderline personality disordered, or even schizophrenic.9  And once an evaluator improperly labels a victim with a personality disorder, both the evaluator and the court sometimes conclude that the “conflict” between the parties is attributable to the “disorder,” not the abuse.10

Moreover, courts often give disproportionate weight to psychological testing because they wrongly assume that psychological testing is probative for determining whether someone is a perpetrator or victim of abuse, or for determining parenting capacity. No psychological testing is designed for these purposes. Even more, poorly trained mental health professionals are unlikely to connect a victim’s psychological presentation to the effects of abuse, or to recognize symptoms of Post-Traumatic Stress Disorder that can make victims seem less credible during the evaluation process and while testifying.11  Typically, this happens when victims appear to overreact to issues that seem “trivial” to an outside observer, when they lack emotional affect when describing violence, or when they giggle inappropriately.12  Similarly, poorly trained professionals can also wrongfully attribute trauma-related memory problems to a lack of credibility, such as when a victim has difficulty recounting events chronologically.13  When mental health professionals fail to properly contextualize these behaviors, they reinforce the court’s tendency to attribute them to a lack of credibility.

For all of these reasons, attorneys representing victims may need to oppose an evaluation, or at the very least, oppose an evaluation that includes psychological testing that was not designed to be used in the context of either a custody dispute or trauma. Though most psychological testing in this context evades meaningful scrutiny by lawyers and judges, there are persuasive legal arguments to exclude psychological testing, because the tests most used by evaluators lack scientific validity for use in the context of custody disputes or abuse.14

• 1Evan Stark, Rethinking Custody Evaluation in Cases Involving Domestic Violence, 6 J. Child Custody 287, 299 (2009).
• 2Id.; Joan S. Meier, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 J. Gender, Soc. Pol’y, & L. 657 (2003).
• 3Stark, Rethinking, supra, at 298–99; Meier, supra, at 708; see Daniel G. Saunders, et al., Beliefs and Recommendations Regarding Child Custody and Visitation in Cases Involving Domestic Violence 22 Violence Against Women 651, 732-34 (2016); see Jason D. Hans, et al., Effect of Domestic Violence Allegations on Custody Evaluators’ Recommendations, 28 J. Fam. Psychology 957, 963–65 (2014).
• 4Meier, supra, at 708. Ironically, many evaluators express skepticism about abuse allegations in “high conflict” cases, but fail to recognize that highly contested custody cases do in fact involve higher rates of abuse because batterers are more likely to engage in protracted custody litigation to punish their victims. Id.
• 5Clare Dalton, et al., Nat’l Council Juvenile & Family Court Judges, Navigating Custody & Visitation Evalutions in Cases with Domestic Violence: A Judge’s Guide (2006).
• 6Meier, supra, at 712–13.
• 7Stark, Rethinking, supra, at 296.
• 8Meier, supra, at 712–13.
• 9Nancy Erickson, Use of the MMPI-2 in Child Custody Evaluations Involving Battered Women: What does Psychological Research Tell Us?, 39 Fam. L.Q. 87, 89 (2005).
• 10Id.
• 11Meier, supra, at 691.
• 12Id. at 691–92.
• 13For a quick and easy primer on trauma and memory, see mediaco-op, Trauma and the Brain, YouTube (Sept. 21, 2015).
• 14Meier, supra, at 712–14.

The use of custody evaluations in abuse cases makes it much more likely that the parent with a history of abuse will benefit from inadmissible and discredited “parental alienation” theories.  A 2023 United Nations report described “parental alienation” as a “highly gendered” pseudo-psychological concept that has gained traction in family courts globally, despite having been rejected by the relevant medical, psychiatric, and psychological communities.1  As explained in the report, “[t]here is no commonly accepted clinical or scientific definition of ‘parental alienation’. Broadly speaking, parental alienation is understood to refer to deliberate or unintentional acts that cause unwarranted rejection by the child towards one of the parents, usually the father.”2  Perpetrators of abuse invoke “parental alienation” in custody cases as a way of discrediting legitimate reports of abuse—by accusing the abused parent, or the protecting parent of an abused child, of coaching or poisoning the child against them.3  Some states, like Louisiana, have adopted “friendly parent” provisions in their child custody statues that abusers often invoke when making parental alienation claims, asserting that the parent who is trying to protect a child is an “unfriendly” parent who is unwilling to facilitate a relationship with the other parent.4  The U.N. report provides a clear, comprehensive overview of “parental alienation” theory, its use by domestic violence perpetrators in family courts, and the devastating extent to which it has endangered victims of domestic violence and their children.5

The first thing lawyers need to know about “parental alienation” theory is that it is not a mental health diagnosis, it is a legal defense. The defense strategy involves accusing the abused or protecting parent of “parental alienation” if a child reports abuse to her or a third party or the parent who has been subjected to abuse seeks visitation or contact restrictions on the abusive parent. Under parental alienation theory, a child’s report of abuse, her alignment with the safe non-abusive parent, or her rejection of the abusive parent, is attributed not to the child’s experiences of abuse but to a mother who is vindictive and has “poisoned” a child against their father.6

The defense is highly effective, in part because the harder the mother tries to prove the abuse or protect the child, the stronger the abuser’s alienation claim becomes.7  For example, if the child continues to report abuse after being disbelieved, the reports become evidence of continued brainwashing and the mother’s recalcitrant position; if the child’s therapist opines that the child is abused, the therapist is demeaned as biased and contributing to the brainwashing at the mother’s behest; if the mother seeks to have her child professionally evaluated, her conduct is labeled medical or psychological abuse; if the mother provides reassurance or guidance to the child about how to distinguish between healthy relationships and abuse, or does anything to acknowledge how the child’s experiences with or exposure to abuse has impacted them, the mother is accused of undermining the other parent. “High-conflict” litigant has become a code word that courts and custody evaluators often use for victims who fight for appropriate restrictions on a dangerous parent.  Ironically, mothers who fail to respond appropriately to their children’s reports of abuse and fail to seek out treatment or assessment, risk losing their children for failure to protect. Because any course of action can be used against them, the “parental alienation” defense creates a legal “catch-22” for protecting parents of abused children.

The parental alienation defense is highly gendered and is especially effective against victims of abuse because of the way it plays into cultural tropes about vindictive women. It shifts the burden onto victims to show that they are not alienating the children, while the party making the alienation accusation need only prove that the child is afraid of them or aligned with the other parent. The party alleging alienation need not prove any actual conduct by the parent accused of alienation. Instead, they show only that the child disclosed abuse, aligned with the parent accused of alienation, or is fearful of the parent accused of abuse and then the alienation is presupposed. In other words, the evidence of abuse is the evidence of alienation.

The parental alienation defense is delivered to family courts primarily through testimony from custody evaluators who label victims “unfriendly parents” or “alienators” when they seek restrictions on an abusive parent. From a legal standpoint, testimony about parental alienation syndrome (or related parental alienation theories named differently) should be excluded under evidentiary standards for admissibility because it is not supported by empirical science and has been rejected by researchers.8  But from a practical standpoint, most courts conduct little evidentiary gatekeeping for custody evaluations or the flawed unscientific theories they rely upon, like parental alienation. So, attorneys should expect resistance from family courts if they contest custody evaluations or challenge the scientific validity of the testing and theories relied upon by evaluators. Courts routinely rely on concepts of parental alienation to find allegations of abuse not credible.

It is important to note that the unscientific “parental alienation” theories espoused by many evaluators differ from legitimate psychological concepts of alignment, estrangement, and alienation. Some parents do engage in behavior that denigrates the other parent and damages the relationship between the child and the other parent.9  In fact, this type of conduct is a prevalent feature of the parenting style seen in batterers.10  But instead of relying on testimony about a mystery syndrome that presupposes its conclusion, lawyers and experts should prove the conduct that the party is accused of engaging in. In other words, lawyers representing victims should present evidence and testimony to prove the ways the abusive parent deliberately undermines the victim’s parenting and denigrates her to the children—and avoid relying on unscientific theories that are harmfully deployed against victims.

• 1Reem Alsalem (Special Rapporteur on Violence Against Women and Girls, Its Causes and Consequences), Custody, Violence Against Women and Violence Against Children, U.N. Doc. A/HRC/53/36 (Apr. 13, 2023).
• 2Id. at 3.
• 3Joan S. Meier, The Misuse of Parental Alienation Syndrome in Custody Suits, in 2 Violence Against Women in Families and Relationships 147 (Evan Stark & Eve Buzawa. eds., 2009). At most, parental alienation is a legal hypothesis to explain a problem in a parent-child relationship. Id. at 150. The theory is not supported by empirical evidence and has been broadly discredited as a scientific theory. Id.
• 4See La. C.C. art. 134(12) (requiring that courts consider in awarding custody “[t]he willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child’s safety or well-being while in the care of the other party” (emphasis added). The italicized “except” clause above resulted from a recent amendment, which presumably makes it harder for an abuse perpetrator to use the statute against a victim parent or protecting parent.
• 5Alsalem, supra.
• 6Id. at 148.
• 7Id. at 149–50.
• 8See Nat’l Council of Juvenile & Family Court Judges, Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide (2006).
• 9Cf. La. C.C. art. 134(A)(12) (requiring that courts consider when evaluating custody “[t]he willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child’s safety or well-being while in the care of the other party”). Note that the provision does not apply in domestic abuse cases. See La. C.C. art. 134(B).
• 10Lundy Bancroft, et al., The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics 156 (2d ed. 2012).

In a “family violence” case, lawyers should usually oppose the appointment of a custody evaluator as premature, at least until the court has ruled on the allegations of “family violence.” In many cases, custody evaluators serve little function beyond substituting their own credibility determinations for those of the court. The presentation of testimony and evidence is the best way to determine whether abuse has occurred, and only the court should make credibility determinations regarding allegations of abuse. Psychological testing, mental health evaluations, and custody evaluations are not scientifically valid ways to determine whether someone is abused or an abuser. Once the abuse has been proven, the PSFRVA’s mandatory custody provisions are triggered and the mental conditions of the parties or the “best interest” assessments of evaluators should not be at issue.

A contradictory hearing to determine good cause should take place before a custody evaluator is appointed.1  A request for mental health evaluations is governed by La. R.S. 9:331, La. C.C.P. art. 1464, and, in PSFVRA cases, La. R.S. 9:365. These statutes require that evaluations be ordered only for good cause shown and upon notice to the other party.2  The existence of an abuse claim, standing alone, should not constitute “good cause” for a mental health evaluation.3  But if a custody evaluation is ordered in a case involving allegations of family violence, the evaluator must have “current and demonstrable training and experience working with both perpetrators and victims of family violence.”4  The enforcement of this provision is essential to protect survivors from the dangers of evaluations by poorly trained mental health professionals.

In most domestic violence cases, lawyers should contest both the issue of “good cause” and the qualifications of the evaluator. Procedurally, evaluations, parenting assessments, and best interest assessments should not occur before the perpetrator of family violence or domestic abuse has satisfied the pre-requisites for invoking the narrow exception to the custodial presumption. In other words, unless the abusive party has satisfied all of the conditions for rebutting the PSFVRA presumption and alleges that the child’s best interest requires the abusive party’s participation as a custodial parent because of the other parent’s absence, mental illness, substance abuse, or other circumstances affecting the child’s best interest, the motion should be denied.5

If the court orders an evaluation over your objection, request an opportunity to examine the proposed evaluator’s qualifications before the appointment or to submit a list of proposed evaluators whom you believe meet the statutory qualifications. Few mental health professionals have “current and demonstrable” experience and training working with both victims and perpetrators of abuse.6  The fact that the court has routinely relied on an evaluator in the past is not evidence that the evaluator meets the PSFVRA standards for appointment. And the fact that an evaluator may have conducted numerous prior evaluations in abuse cases—albeit incompetently—does not meet the statutory test for qualifications. If an evaluation is ordered, it must be paid for by the abusive parent and not split between the parties.7

If an evaluation has been ordered in your client’s case, you will probably need to identify potential evaluators from among professionals who do not routinely conduct court-appointed evaluations. Most people who maintain a regular court-appointed evaluation practice are not also experienced practitioners in the field of domestic violence. Also, it can be useful to identify previous cases in which evaluators have been involved and to review the frequency with which they discredited reports of abuse or relied upon unscientific and invalid theories or procedures. Even after an evaluator has been appointed over the victim’s objection, there may be opportunities to raise the issue again. Unqualified evaluators will sometimes utilize processes that are dangerous and highly inappropriate in family violence cases, such as joint meetings between the parties.

• 1La. R.S. 9:331. A mental health evaluation may only be ordered for good cause shown. Id.
• 2La. C.C.P. art. 1464.
• 3Cf. Bourque v. Bourque, 03-1254 (La. App. 5 Cir. 3/30/04), 870 So. 2d 1088 (psychological evaluation denied where no psychological issues involved in case). But see Jones v. Jones, 19-66 (La. App. 5 Cir. 5/29/19), 274 So. 3d 811, 820 (trial court had good cause to order appointment of custody evaluator based on “acrimonious” history of the parties, including physical abuse, abusive conduct, and refusals to co-parent).
• 4La. R.S. 9:365.
• 5Under La. R.S. 9:364, the party with a history of family violence cannot have unsupervised visitation or move for custodial rights until he has successfully completed a treatment program designed for perpetrators of abuse, which usually takes 6 months, and is free from drug and alcohol abuse. Even then, the party with a history of abuse can only get unsupervised visitation if it is in the child’s best interest. And custodial rights are even more difficult for an abuser to obtain. The abuser must prove that the child’s best interest requires his participation as a custodial parent because of the other parent’s absence, mental illness, substance abuse, or other circumstances which affect the child’s best interest. This test is akin to proving parental unfitness, a high legal burden. For further discussion, see Section 8.3.2.
• 6La. R.S. 9:365.
• 7La. R.S. 9:367.

Parties seeking to modify PSFVRA orders bear onerous legal burdens designed to protect the children and discourage perpetrators of abuse from using custody and visitation litigation to perpetuate their abuse.1  Different legal standards apply to requests to modify PSFVRA custody and requests to modify PSFVRA visitation. These are discussed separately below.

• 1La. R.S. 9:361.

Once a court has found there is a history of family violence and has awarded the non-abusive parent sole custody, the party with a history of family violence must satisfy both a 3-part test under the PSFRVA and the Bergeron test for a custody modification. When these tests are applied, no legal avenue exists to modify the custody order to joint custody.

The PSFRVA test for custody modification. The presumption in favor of sole custody to the non-abusive parent may only be overcome by satisfying the criteria set forth in 9:364(B). Under that provision, to modify the order, the party with a history of abuse would have to show (1) the perpetrating parent has successfully completed a court-monitored domestic abuse intervention program as defined in R.S. 9:362, (2) the perpetrating parent is not abusing alcohol or using illegal substances, and (3) the best interest of the child or children, considering the factors listed in La. C.C. art. 134, requires the perpetrating parent’s participation as a custodial parent because of the other parent’s absence, mental illness, substance abuse, or other circumstance negatively affecting the child or children.

The moving party’s burden under the third factor (i.e., to show that their role as a custodial parent is required because of some factor relating to the abused parent’s fitness (such as their absence, mental illness, or substance abuse)) precludes the possibility of joint custody. This is true because, if the court finds that the non-abusing parent is fit enough to be a joint custodial parent, then the moving party (i.e., the abusive parent) has by definition failed to carry the burden to show the non-abusing parents lack of fitness. In other words, it cannot both be true that the non-abusing parent is a fit joint custodial parent, and that the same parent’s fitness is so questionable that they are incapable of acting as a custodial parent such that the abusive parent’s participation as a custodial parent is “required.”

In addition to overcoming the PSFVRA presumption, the party with a history of abuse also bears the burden of meeting the Bergeron test for modification of a considered custody decree.1  Unlike the DAAA,2  the PSFVRA does not make findings, orders, or conclusions under the PSFVRA temporary or exempt from res judicata. So, once final, they cannot be relitigated.3  Under Bergeron, the party moving to modify a considered custody decree must prove:

that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.4

Although two outlier cases from the Fifth and Third Circuits held that PSFVRA cases are not “considered decrees” invoking the Bergeron modification test, recent legislative amendments and case law supersede them. Both cases relied on the flawed rationale that because a PSFVRA custody determination does not include an analysis of the best-interest factors under La. C.C. art. 134, PSFVRA orders are not “considered decrees.”5  Because a “considered decree” is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children6 —and a history of family violence, is, as a matter of law, evidence of parental unfitness to exercise care, custody and control of a child—the rationale of both decisions was logically flawed. Moreover, an explicitly stated purpose of the PSFVRA is to ensure that custody and visitation disputes do not become a forum to perpetuate abuse through vindictive litigation,7  so it is neither logical nor consistent with statutory purposes to apply a lower threshold for abusive parties to modify custody than that applied to non-abusive parents. Fortunately, 2018 legislative amendments explicitly incorporated the PSFVRA into Article 134, effectively resolving any question about whether PSFVRA orders are different from orders decided under Article 134.8

In sum, a “family violence case” is always a family violence case. There are no legal means by which a trial court may transform a family violence case back into an ordinary custody case governed by Article 134’s best interest factors alone. Custody modification may happen only if the La. R.S. 9:364 custodial presumption is overcome and the Bergeron test is satisfied. Only under the most extraordinary circumstances could both tests be met.

• 1Garcia v. Hernandez, 21-338 (La. App. 5 Cir. 4/11/22), 339 So. 3d 61, 69 (holding that trial court’s custody judgment under PSFVRA was a considered decree). For more detailed discussion of Bergeron, see Section 4.4.3 of the chapter on family law.
• 2La. R.S. 46:2134(E).
• 3The fact that the legislature wrote an explicit exception into the DAAA but did not do so in the PSFVRA is evidence of its intent.
• 4Bergeron v. Bergeron, 492 So. 2d 1193 (La. 1986).
• 5Coleman v. Manley, 15-778 (La. App. 5 Cir. 3/16/16), 188 So. 3d 395 (holding that an award of domiciliary parentage under the PSFVRA to a party does not constitute a “considered decree” and thus the application of the heightened Bergeron standard in the child custody modification proceeding is inapplicable); Cloud v. Dean, 2015-1050 (La. App. 3 Cir. 1/13/16), 184 So. 3d 235 (mother’s award of sole custody pursuant to PSFVRA was not a “considered decree” and thus not permanent; custody would be reconsidered after the father successfully completed a domestic violence intervention training).
• 6Rodriguez v. Wyatt, 11–82 (La. App. 5 Cir. 12/12/11), 102 So. 3d 109, 114 (citing Silbernagel v. Silbernagel, 06-879, p. 6 (La. App. 5 Cir. 4/11/07), 958 So.2d 13).
• 7La. R.S. 9:361.
• 8See also Garcia v. Hernandez, 21-338 (La. App. 5 Cir. 4/11/22), 339 So. 3d 61, 69 (holding that trial court’s custody judgement under PSFVRA was a considered decree).

Parents with a history of family violence may seek, but are not entitled to, either supervised or unsupervised visitation under the PSFVRA.1  PSFVRA visitation orders are subject to a variety of pre-conditions set forth by La. R.S. 9:341. The standard that applies to a request to modify visitation in a PSFVRA order depends upon whether the visitation being sought is supervised or unsupervised. Until a perpetrator of family violence proves he has met the requirements for unsupervised visits under La. R.S. 9:341,2  supervised visits cannot be modified in ways that do not include the safety-related restrictions of La. R.S. 9:362.

For a request to modify supervised visitation to unsupervised visitation, the abusive parent must prove he has satisfied a variety of conditions that include successful completion of a batterer intervention treatment program since the last incident of abuse.3  But unsupervised visits will not be granted merely because the treatment program was completed.4  At the hearing, the court must also consider evidence of the abusive parent’s current mental health condition and the possibility of continuing abuse. And the party seeking visitation must prove that visitation would be in the best interest of the child and would not cause physical, emotional, or psychological damage to the child. Even if proven, the court may continue the supervision and impose any restrictions, conditions, and safeguards necessary to minimize any risk of harm to the child.

All subsequent requests to modify or expand visitation in a PSFVRA case will continue to be governed by La. R.S. 9:341. There is no legal “work-around” that can change a PSFVRA case into an ordinary custody or visitation case subject to a best interest test alone. Some family law attorneys will assert that the passage of time or compliance with past orders should eventually entitle the parent with a history of abuse to assert custodial rights or request less onerous visitation restrictions than those set out in La. R.S. 9:341. This argument conflicts with the plain language of the governing statutes and is not supported by any legal authority.

• 1La. C.C. art. 136; La. R.S. 9:341.
• 2For further discussion of these requirements, see Section 8.6.1.
• 3La. R.S. 9:341
• 4Id.

Lawyers representing survivors of intimate partner violence or protecting parents of abused children must know and understand child custody interstate jurisdiction issues.1  Scenarios that lawyers may need to address include: 1) the survivor wishes to relocate with the child either before or after an initial custody determination; 2) the survivor has fled with the child to Louisiana; and 3) the survivor has fled from Louisiana to a state of refuge and the abusive former partner files to force the child’s return to Louisiana.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)2  applies to all “child custody proceedings” in which legal custody, physical custody, or visitation is at issue.3  A “child custody proceeding “includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from family violence, in which the custody or visitation issue may appear.”4  In domestic violence cases, interstate jurisdiction issues typically arise when a victim moves out of state to get away from an abusive former partner. If a victim relocates to a new state but is made to litigate contentious custody issues in the first state, her safety and stability may be compromised. In these cases, lawyers may be called upon to represent survivors who need help asking Louisiana courts to either accept or decline jurisdiction under the UCCJEA’s domestic violence provisions. The UCCJEA includes important protections for domestic violence victims and their children that can help lawyers advocate for them in these circumstances.

The UCCJEA’s inconvenient forum and emergency jurisdiction rules include protections for victims who flee the child’s “home state” to escape violence.5  Under the UCCJEA, a child’s “home state” has jurisdiction to decide custody. Home state is defined in La. R.S. 13:1813 as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” Once Louisiana makes an initial child custody determination as the “home state,” it has exclusive, continuing jurisdiction until it determines that neither the child, nor the child and one parent, have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships.6  In some cases, Louisiana will be the home state and the victim may need to establish or protect its status as such. In other cases, Louisiana may be the home state, but the victim instead needs help asking Louisiana to decline to exercise its continuing jurisdiction in favor of a refuge state. Alternatively, Louisiana may be the refuge state, not the home state, and a victim needs help establishing temporary emergency jurisdiction for protection here.

• 1For additional discussion of interstate child custody issues, see Section 4.10 and Section 4.11 of this manual’s chapter on family law.
• 2La. R.S. 13:1801–1842.
• 3La. R.S. 13:1802(4).
• 4Id.
• 5See Stoneman v. Drollinger, 64 P.3d 997, 1001–02 (Mont. 2003); Kovach v. McKenna, 2011-C-0228 (La. App. 4 Cir. 4/1/11) (unpublished writ opinion). In Kovach, the appellate court reversed a trial court’s denial of a motion to decline its home state jurisdiction in favor of the family violence victim’s refuge state. In its opinion, the Kovach Court found that the “domestic violence and residence of the child in another state for more than six months predominates over all other considerations in La. Rev. Stat. Ann. § 13:1819.”
• 6La. R.S. 13:1814(A)(1). Continuing jurisdiction also ends when neither the child, the child’s parents nor any person acting as a parent reside in Louisiana. La. R.S. 13:1814(A)(2).

When a victim flees domestic violence, litigation of custody in the refuge state can enhance the victim’s safety and economic welfare. Under La. R.S. 13:1819, a Louisiana court with UCCJEA jurisdiction may decline home state jurisdiction in favor of a domestic violence victim’s refuge state by conducting an “inconvenient forum” analysis. Although the inconvenient forum analysis includes a list of factors for consideration, the two factors that are most often determinative on the issue of whether a Louisiana court should decline jurisdiction are domestic violence and the length of time that the child has resided outside of Louisiana. When representing a survivor who has left Louisiana for a refuge state, lawyers should consider whether to file a motion under La. R.S. 13:1819 requesting that Louisiana decline jurisdiction.1  

The leading case on applying the domestic violence factor in an inconvenient forum analysis is Stoneman v. Drollinger.2  Additionally, in an unpublished writ opinion, Kovach v. McKenna, a Louisiana appellate court ordered declination of Louisiana’s home state jurisdiction under La. R.S. 13:1819 and dismissal of the abusive party’s Louisiana custody suit. In doing so, the Kovach Court concluded that “domestic violence and residence of the child in another state for more than six months predominated over all other considerations in La. R.S. 13:1819.”3  As in Kovach, many trial courts may find an absence from the state of 6 months or more (even if it occurs after the initial filing) weighs heavily in favor of declining jurisdiction under a section 1819 “inconvenient forum” analysis. Louisiana’s courts of appeal have upheld declination as inconvenient forum when the child has been absent for a lengthy time.4  The ruling on a motion to decline as inconvenient forum is reviewable for abuse of discretion by supervisory writs.5

Additionally, if the victim of domestic violence left Louisiana after a Louisiana court issued an order regarding custody, lawyers should determine whether the previous order is an “initial custody consideration” that would give rise to continuing jurisdiction.6  If the prior order was only interim or temporary and was not a considered decree or a final judgment or consent judgment that took best interest factors into account, it may not be the kind of order that gives rise to continuing jurisdiction.7

• 1La. R.S. 13:1819(A).
• 264 P.3d 997 (Mont. 2003); see also Rainbow v. Rainbow, 990 A.2d 535 (Me. 2010) (declination of home state jurisdiction in favor of refuge state was appropriate where there was domestic violence).
• 3Kovach v. McKenna, 2011-C-0228 (La. App. 4 Cir. 4/1/11) (unpublished writ opinion).
• 4Burds v. Skidmore, 2019-0263, p. 1 (La. App. 4 Cir. 3/22/19), 267 So. 3d 192, 193 (where mother and child had been living in Georgia for 6 years, Georgia had the most significant connections and was the forum most convenient); Wootton v. Wootton, 49,00, p. 1 (La. App. 2 Cir. 5/14/14), 138 So. 3d 1253 (affirming trial court order declining to exercise continuing jurisdiction despite Louisiana consent judgment with provision indicating Louisiana would retain jurisdiction, where mother and child had lived in Mississippi for four years); Kovach, 2011-C-0228; see also Addington v. McGehee, 29729-CA (La. App. 2 Cir. 1997), 698 So. 2d 702, 704.
• 5Kovach, 2011-C-0228; see also Addington, 29729-CA, 698 So. 2d at 704.
• 6See La. R.S. 13:1802(3), (8).
• 7See Burds, 2019-0263, 267 So. 3d 192.

La. R.S. 13:1816 addresses a Louisiana court’s authority to issue temporary emergency orders to protect family violence victims who have fled to Louisiana. La. R.S. 13:1816(A) expressly allows temporary emergency jurisdiction to protect a child if the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.

However, La. R.S. 13:1816 emergency orders provide only temporary relief. The custody case must be resolved in the state that has proper jurisdiction under La. R.S. 13:1813–1815 unless that state declines jurisdiction under the inconvenient forum test. If no prior custody order exists and no suit has been commenced in a state with La. R.S. 13:1813 subject matter jurisdiction, a temporary emergency order will remain in effect until an order is obtained from the home state or a state that has proper section 1813 jurisdiction.1  If a prior custody order exists, the judge must confer with the other state’s judge.2  Then, the court with temporary emergency jurisdiction must specify a reasonable time limit for the petitioner to obtain an order from the state with proper jurisdiction under La. R.S. 13:1813­–1815 or to seek declination from that court.3  The temporary emergency order will remain in effect until an order is obtained from the other state or the time limit expires.4

Because Louisiana can assume only temporary jurisdiction under La. R.S. 13:1816, using it can present legal risks for survivors. There is always a danger that the court in the “home state” will view the victim’s request for an emergency order as forum shopping or contumacious. This risk is especially high if the judge in the other state has issued prior orders declining to find domestic violence or minimizing the danger of abuse. In cases like that, the use of this provision can sometimes create more problems for the victim and child when the case eventually returns to the home state.

• 1See La. R.S. 13:1816(B).
• 2La. R.S. 13:1816(D).
• 3La. R.S. 13:1816(C).
• 4Id.