8.4.6 Prior Family Violence

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.