Legislative amendments in 2018 eased visitation restrictions on parents with a history of family violence.1  Prior to the change, a parent with a history of family violence was allowed only supervised visitation, and “completion of” a treatment program for batterers was a pre-condition to even supervised visits.2  Now, a parent with a history of family violence may be awarded supervised visitation without first satisfying any pre-conditions. It is important to note that the change makes supervised visits permissible without pre-conditions; it does not create an entitlement of supervised visits for the parent with a history of abuse. Nothing in the statute would prevent a court from imposing pre-conditions to supervised visits or even denying supervised visits altogether, if necessary to protect the child.3

Successful completion of a 26-week batterer intervention program since the last incident of abuse is now one of several pre-conditions to unsupervised visits.4  Importantly, the 2018 revisions created an explicit requirement that the treatment program have been completed “since the last incident of domestic violence or family abuse.” This addition is helpful to lawyers representing survivors because many abusive former partners have previously completed batterer intervention classes as the result of prior arrests or convictions for abuse. Even if this requirement did not exist, acts of abuse occurring after completion of a treatment program could be proof that the treatment was not “successful.”

In addition to the requirement of batterer intervention, at a hearing to decide unsupervised visitation the court must consider evidence of the abusive parent’s current mental health condition, the possibility of continuing abuse, and whether the perpetrating parent has proven that visitation would be in the best interest of the child and would not cause physical, emotional, or psychological damage to the child. Even if these conditions are satisfied, the court may continue the supervision and impose any restrictions, conditions, and safeguards necessary to minimize any risk of harm to the child.5  A parent’s history or pattern of abuse against previous dating or intimate partners would be relevant to the issue of whether there is a possibility of continuing abuse, even if abuse of other dating partners was not considered in the original PSFVRA determination.6  Additionally, an abusive party’s unwillingness to acknowledge the abuse or the harm it caused has direct relevance to the issue of whether expanded visitation could cause emotional or psychological damage to the child.

For reasons described throughout this chapter, it may never be in the best interest of a child who has been subjected to physical, sexual, or emotional abuse to have unsupervised visitation with the abusive parent. Continued or unmonitored contact with an abusive parent can cause confusion and fear, especially in cases where the abusive parent refuses to acknowledge the abusive behavior and wants to ignore that it ever happened. Lawyers may consider asking that such acknowledgement, in a therapeutic setting with an expert in trauma and abuse, be made a pre-condition to even supervised visits. Whether the child was the subject of abuse, or witnessed it against a parent, it can take a long time (and a lot of therapy) before unsupervised visitation is in a child’s best interest.

Note that many attorneys conflate or confuse the PSFRVA requirements for overcoming the custodial presumption with the requirements for obtaining unsupervised visits. The tests are different, and the burden to overcome the custodial presumption in favor of the abused parent is much higher than the burden to request unsupervised visits. Some lawyers who represent the party with a history of abuse will try to take advantage of this confusion and assert a lower burden for overcoming the custodial presumption.

• 1La. R.S. 9:341.
• 2La. R.S. 9:364(C) (2011).
• 3La. R.S. 9:341(A).
• 4La. R.S. 9:341.
• 5La. R.S. 9:341(A).
• 6See generally Merrells v. Dotray, 53,551 (La. App. 2 Cir. 7/8/20), 299 So. 3d 208, 214 (father’s prior conviction of domestic abuse battery against a previous dating partner relevant to risk of continuing abuse).

Selecting an appropriate visitation supervisor can present practical challenges for litigants and attorneys. The PSFVRA does not allow supervision by people associated with the party who is abusive, and it is generally not safe or appropriate for a victim’s friends or family to supervise. The best option is usually a supervised visitation center. In communities that lack supervised visitation centers (i.e., most communities), lawyers and clients have limited options. Petitioners may specifically request that the court appoint a police officer or competent professional as the supervisor.1  Supervisors can be police officers with some sensitivity to juvenile or domestic issues. These officers may be more willing and able to intervene to prevent harm to the child during a visit. Social workers in your community may also be available for supervision. It is a good idea to have a specific list of potential supervisors and their contact information available at the hearing on custody. Otherwise, the court may appoint a supervisor with whom you are unfamiliar and who may be ill-suited to supervise in a family violence case because they lack understanding about the physical and emotional risks to children.

When selecting a supervisor, keep in mind that people who abuse their intimate partners can be highly effective at manipulating and co-opting mental health and social work professionals, including visitation supervisors. Most mental health professionals have little, if any training in domestic violence, and even those that do rarely have enough to meaningfully understand basic dynamics of abuse.2  Parents with a history of perpetrating abuse are likely to be on their best behavior in settings where they know they must be. And children are often delighted to see even an abusive parent in a setting where they are safe and where “good daddy” shows up to see them. Courts often give far too much weight to testimony about parent-child observations in a supervised setting; information from these visits rarely leads to relevant or probative evidence in abuse cases.

For this reason, lawyers should be cautious about eliciting professional opinions from even trained visitation supervisors and should seek to exclude the testimony if offered by supervised party. A visitation supervisor’s testimony is usually not relevant to any issue that would be before the court, other than the abusive party’s violation of orders. The mere fact that a parent with a history of perpetrating abuse does not abuse in a supervised visitation setting, or that a child enjoys the parent’s company in a safe supervised setting has no probative value on issues such as whether there is a history of past abuse, whether there is a likelihood of future abuse, or whether unsupervised visitation is in a child’s best interest.

• 1La. R.S. 9:362(7).
• 2Joan S. Meier, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 J. Gender, Soc. Pol’y, & L. 657, 708 (2003).