8.5.1 Mandatory Application

If the petitioner proves a history of family violence, the court must apply the protections of the PSFVRA.1  Louisiana’s courts of appeal have consistently admonished trial courts on the Act’s mandatory application.2  Even more, the trial court may not avoid application of the Act’s protections by refusing to decide the question of whether there is a “history of family violence.”3  Once the Act has been pled, all custody determinations must be predicated on a finding about family violence; the court may not even issue an interim or temporary custody order without first determining that issue.4  Even where the PSFVRA has not been pled, it is improper to make a custody determination before resolving outstanding pleadings alleging domestic violence, because related DAAA proceedings could determine whether the PSFVRA applies.5

La. C.C. art. 134(B) requires that cases involving family violence be determined in accordance with the PSFVRA “whether or not a party has sought relief under any applicable law.”6  This provision was adopted in 2018 and supersedes prior conflicting case law holding that the Act’s application was discretionary if the Act had not been pled.7  An appellate court may render judgment applying the Act, where the trial court findings show a history of family violence.8

• 1See La. C.C. art. 134(B). Although the trial court has discretion in its factual determination on “family violence,” once the finding has been made, the court is bound to apply the Act.
• 2Barak v. Saacks, 2021-0756 (La. App. 4 Cir. 10/12/22), 2022 WL 6944282, at *14, writ denied, 2022-01734 (La. 1/11/23) (reversing trial court that made finding that there was a history of family violence but awarded father unsupervised visitation before completion of court-monitored batterer’s intervention program); see Durand v. Rose, 2022-0300 (La. App. 4 Cir. 9/15/22), 2022 WL 4244409, writ denied, 2022-01727 (La. 1/18/23), 353 So. 3d 127; see also Melancon v. Russell, 18-48 (La. App. 5 Cir. 10/17/18), 258 So. 3d 955 (PSFVRA relief becomes operable once there is a finding of a history of family violence, regardless of whether specific Act pled); Ledet v. Ledet, 03-CA-537 (La. App. 5 Cir. 10/8/03), 865 So. 2d 762 (reversing and remanding for a determination on family violence); Lewis v. Lewis, 34,031-CA (La. App. 2 Cir. 11/3/00), 771 So. 2d 856; Hicks v. Hicks, 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261 (reversing custody award to father where uncontroverted evidence proved at least on act of family violence resulting in serious bodily injury, but trial court failed to apply the act); Crowley v. Crowley, 96-CC-2413 (La. 10/11/96), 680 So. 2d 661 (reversing trial court that made finding that there was a history of family violence but did not apply the act’s requirement that the victim be awarded sole custody).
• 3Ledet, 865 So. 2d 762. In Ledet, the trial court refused to hold an evidentiary hearing on the abuse allegations and suspended ruling on the abuse allegations for sixty days. The appellate court ordered the trial court to (1) hold and complete a hearing on the “family violence” allegations within fifteen days, (2) make findings on the “family violence” allegations, and (3) set custody in accordance with those findings and the PSFVRA. Id.
• 4Id.; Ford v. Ford, 01-387 (La. App. 3 Cir. 10/17/01), 798 So. 2d 316; McFall v. Armstrong, 10-1041 (La. App. 5 Cir. 9/13/11), 75 So. 3d 30, 40.
• 5La. C.C. art. 134(B); see also McFall, 75 So. 3d at 40 (reversing custody determination made before Domestic Abuse Assistance Act (DAAA) petition was resolved and holding that the DAAA proceeding will determine whether the court is mandated to apply the Post-Separation Family Violence Relief Act).
• 6La. C.C. art. 134(B)
• 7Melancon v. Russell, 18-48 (La. App. 5 Cir. 10/17/18), 258 So. 3d 955 (PSFVRA relief becomes operable once there is a finding of a history of family violence, regardless of whether specific Act plead). But see Nguyen v. Lee, 07-CA-81 (La. App. 5 Cir. 5/15/07), 960 So. 2d 261, 265 (PSFVRA cannot be pled for the first time on appeal).
• 8Durand, 2022-0300, 2022 WL 4244409 (granting sole custody to mother and reversing trial court that made finding that there was a history of family violence but awarded father joint custody despite no evidence being presented that father had completed treatment program as required by the PSFVRA).