8.4.1 Required Findings

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 As noted by Hicks v. Hicks, the outdated Simmons test for history of family violence is wrong. 98-1527 (La.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