8.3.2 Custodial Presumption

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).