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 As noted by Hicks v. Hicks, the outdated Simmons test for history of family violence is wrong. 98-1527 (La.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.