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.