8.1 General Principles

The presence of domestic violence presents special issues in child custody determinations. Domestic violence prompts the application of different laws and requires different litigation practices than those used in other child custody cases. A family law attorney who fails to distinguish between cases that involve domestic violence and those that do not risks both malpractice and harm to victims and their children. This section addresses custody laws and litigation issues unique to domestic violence cases. It will touch only peripherally on general laws for custody and visitation.1

The first thing lawyers representing survivors should know is that the traditional “best interest” test that governs child custody determinations does not govern cases involving a history of abuse. So, although La. C.C. art. 134 explicitly lists a variety of “best interest” factors courts must consider when determining child custody, in cases involving a history of family violence, different standards govern.2  And in contrast to Louisiana’s presumption in favor of joint custody in ordinary custody disputes,3  there is a legal presumption of sole custody in cases involving abuse.4

Louisiana was one of the first states in the nation to create a custodial presumption in favor of an abused parent in lieu of a traditional best interest test. There are many reasons why a traditional best interest test is inappropriate and even harmful in cases involving abuse. First, many of the best interest factors used by courts place abused mothers at a disadvantage. For example, if the victim of abuse has recently fled or ended an abusive relationship, she may be at a disadvantage with respect to factors that favor a continuity of the home environment, the ability to provide for material needs, or the willingness to “encourage” a close relationship with the other (abusive) parent. She may also be experiencing anxiety, depression, or other effects of the abuse that an abusive party will attempt to characterize as mental health problems affecting parental fitness under a traditional best interest test.

Second, despite overwhelming empirical data to the contrary, many family court judges and court-appointed evaluators believe that the effects of domestic violence on children dissipate once two parents separate. So, historically, many judges applied the best interest factors in ways that failed to consider the harm caused by children’s exposure to domestic violence perpetrators, even after separation. Exposure to domestic violence perpetrators has devastating effects on children. An increasingly robust body of research suggests that children living in homes where a parent is abused suffer emotional, psychological, and long-term life consequences practically identical to those of children who are themselves physically abused.5

Children living in these homes are at risk of developing profound psychological, behavioral, cognitive, social and educational problems – problems that often manifest in impaired functioning as adults.6  Even more, children whose mothers are abused are at significantly increased risk of also being abused.7  And after separation, children who have never been previously physically abused by a domestic violence perpetrator are at increased risk of being physically abused themselves.8

Moreover, when survivors leave abusive relationships, abusive former partners routinely seek to punish and harass their victims through aggressive custody and visitation litigation. And they abuse their powers as joint custodians to bully and harass the non-abusive parent.9  Visitation exchanges and visitation times can expose both victims and their children to continuing injury. After separation, visitation contact is the most common context in which victims will be re-assaulted.10  When insufficient visitation protections are in place for children, or when abusers are awarded sole or joint custody, some victims reconcile as a last resort to help keep their children safe.

Nationally, perpetrators of abuse have been very effective at making good on their promises to punish victims by taking away their children.11  Men who abuse their intimate partners are more likely to seek custody of their children than are non-violent fathers.12  A variety of gender bias studies conducted in state courts across the nation have shown that, contrary to the commonly held belief that women are favored in contested custody litigation, women face serious disadvantages in family law courts.13  Some studies suggest that mothers who are victims of abuse may be more likely to lose custody of their children than women who are not.14  So despite well-designed custody laws to protect victims and their children, domestic violence perpetrators are frequently awarded sole or joint custody.15

Numerous issues contribute to this problem, including a lack of education about domestic violence and its effects. In many cases, abusive former partners exploit the lingering psychological effects of abuse by framing them as parenting deficits in the victim. In other cases, they benefit from societal misconceptions that domestic violence perpetrators will present as angry or impulsive outside the context of the intimate relationship or that they have obvious mental health issues that can be detected by psychological testing or evaluation.16

For all the reasons described above, one of the most important services a lawyer can provide to a victim of abuse is child custody representation. For most victims of abuse, it is nearly impossible to meaningfully co-parent with an abusive former partner who has been awarded shared custodial rights. The tactics of control and coercion abusive partners engage in create continual conflict, anxiety, and exposure to continued physical and psychological harm for the non-abusing parent. Louisiana’s Post-Separation Family Violence Relief Act (PSFVRA), La. R.S. 9:361­­–369, addresses many of these problems.17  The PSFRVRA creates important legal remedies that protect abused parents and their children, as well as children who themselves are abused. It limits judicial discretion to apply best interest factors in family violence cases, creates custodial presumptions in favor of the non-abusive parent, and imposes restrictions on the abusive parent’s visitation. Importantly, the presumption against awarding an abusive party custody removes the burden from the victim to show the connection between domestic violence and harm to the children.

Because the PSFRVA should govern most custody determinations in family violence cases, the following sections focus on that Act.

• 1For detailed discussion of these laws generally, see Section 4 and Section 5 of this manual’s chapter on family law.
• 2La. C.C. art. 134(B).
• 3La. C.C. art. 132.
• 4La. R.S. 9:364.
• 5Behind Closed Doors: The Impact of Domestic Violence on Children, UNICEF (2006); Evan Stark, Rethinking Custody Evaluation in Cases Involving Domestic Violence, 6 J. Child Custody 287, 292 (2009); William Copeland, et al., Association of Childhood Trauma Exposure With Adult Psychiatric Disorders and Functional Outcomes, 1 JAMA New Open e184493 (2018) (exposure to domestic violence in the home had the same effects as experiencing the abuse directly).
• 6Stark, Rethinking, supra, at 292. While children in these homes are at much greater risk of these harms, not all children suffer these harms – many children show significant coping skills and resilience in the face of abuse. Id.; The Effects of Intimate Partner Violence on Children 2 (Robert Geffner, et al., eds., 2003); see generally V.J. Felitti, et al., Relationship of Childhood Abuse and Household Dysfunction to Many of the Leading Causes of Death in Adults: The Adverse Childhood Experiences (ACE) Study, 14(4) Am. J. Prev. Med. 245 (1998) (finding that exposure to domestic violence is one of the seven original “adverse childhood experiences” correlated with lifetime risk factors for problems such as poor health, poor educational attainment, adult poverty, substance misuse, teen pregnancy, STDs, and criminal justice system involvement).
• 7Stark, Rethinking, supra, at 292 (describing “robust link” between domestic violence and child physical and sexual abuse); The Effects of Intimate Partner Violence on Children, supra.
• 8The Effects of Intimate Partner Violence on Children, supra, at 2.
• 9Evan Stark, The Battered Mother’s Dilemma, in 2 Violence Against Women in Families and Relationships 95, 96 (Evan Stark & Eve Buzawa. eds., 2009).
• 10Stark, Rethinking, supra, at 292.
• 11Joan S. Meier, U.S. Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations: What Do the Data Show?, 42 J. of Social Welfare and Family L. 92 (2020).
• 12Joan Zorza & Leora Rosen, Guest Editor’s Introduction, 11 Violence Against Women 983, 986 (2005).
• 13Stark, Rethinking, supra, at 314; see also Stephanie Dallam, Are “Good Enough” Parents Losing Custody to Abusive Ex-Partners (updated May 27, 2006) (citing and summarizing state-sponsored gender bias studies); see also Meier, U.S. Child Custody Outcomes, supra, at 96.
• 14Stark, Rethinking, supra, at 314; see Meier, U.S. Child Custody Outcomes, supra, at 96; Peter Jaffe, et al., Dep’t of Justice Canada, Making Appropriate Parenting Arrangements in Family Violence Cases: Applying the Literature to Identify Promising Practices 16 (2005).
• 15Joan S. Meier, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 J. Gender, Soc. Pol’y, & L. 657, 662 (2003); Evan Stark, Rethinking, supra.
• 16Lundy Bancroft, et al., The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics 156 (2d ed. 2012).
• 17See D.O.H. v. T.L.H., 01-174 (La. App. 3 Cir. 10/31/01), 799 So. 2d 714, 721–32 (Woodard, J., dissenting) (discussing the intent of the PSFVRA and how domestic violence affects children).