Parties seeking to modify PSFVRA orders bear onerous legal burdens designed to protect the children and discourage perpetrators of abuse from using custody and visitation litigation to perpetuate their abuse.1  Different legal standards apply to requests to modify PSFVRA custody and requests to modify PSFVRA visitation. These are discussed separately below.

• 1La. R.S. 9:361.

Once a court has found there is a history of family violence and has awarded the non-abusive parent sole custody, the party with a history of family violence must satisfy both a 3-part test under the PSFRVA and the Bergeron test for a custody modification. When these tests are applied, no legal avenue exists to modify the custody order to joint custody.

The PSFRVA test for custody modification. The presumption in favor of sole custody to the non-abusive parent may only be overcome by satisfying the criteria set forth in 9:364(B). Under that provision, to modify the order, the party with a history of abuse would have to show (1) the perpetrating parent has successfully completed a court-monitored domestic abuse intervention program as defined in R.S. 9:362, (2) the perpetrating parent is not abusing alcohol or using illegal substances, and (3) the best interest of the child or children, considering the factors listed in La. C.C. art. 134, requires the perpetrating parent’s participation as a custodial parent because of the other parent’s absence, mental illness, substance abuse, or other circumstance negatively affecting the child or children.

The moving party’s burden under the third factor (i.e., to show that their role as a custodial parent is required because of some factor relating to the abused parent’s fitness (such as their absence, mental illness, or substance abuse)) precludes the possibility of joint custody. This is true because, if the court finds that the non-abusing parent is fit enough to be a joint custodial parent, then the moving party (i.e., the abusive parent) has by definition failed to carry the burden to show the non-abusing parents lack of fitness. In other words, it cannot both be true that the non-abusing parent is a fit joint custodial parent, and that the same parent’s fitness is so questionable that they are incapable of acting as a custodial parent such that the abusive parent’s participation as a custodial parent is “required.”

In addition to overcoming the PSFVRA presumption, the party with a history of abuse also bears the burden of meeting the Bergeron test for modification of a considered custody decree.1  Unlike the DAAA,2  the PSFVRA does not make findings, orders, or conclusions under the PSFVRA temporary or exempt from res judicata. So, once final, they cannot be relitigated.3  Under Bergeron, the party moving to modify a considered custody decree must prove:

that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.4

Although two outlier cases from the Fifth and Third Circuits held that PSFVRA cases are not “considered decrees” invoking the Bergeron modification test, recent legislative amendments and case law supersede them. Both cases relied on the flawed rationale that because a PSFVRA custody determination does not include an analysis of the best-interest factors under La. C.C. art. 134, PSFVRA orders are not “considered decrees.”5  Because a “considered decree” is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children6 —and a history of family violence, is, as a matter of law, evidence of parental unfitness to exercise care, custody and control of a child—the rationale of both decisions was logically flawed. Moreover, an explicitly stated purpose of the PSFVRA is to ensure that custody and visitation disputes do not become a forum to perpetuate abuse through vindictive litigation,7  so it is neither logical nor consistent with statutory purposes to apply a lower threshold for abusive parties to modify custody than that applied to non-abusive parents. Fortunately, 2018 legislative amendments explicitly incorporated the PSFVRA into Article 134, effectively resolving any question about whether PSFVRA orders are different from orders decided under Article 134.8

In sum, a “family violence case” is always a family violence case. There are no legal means by which a trial court may transform a family violence case back into an ordinary custody case governed by Article 134’s best interest factors alone. Custody modification may happen only if the La. R.S. 9:364 custodial presumption is overcome and the Bergeron test is satisfied. Only under the most extraordinary circumstances could both tests be met.

• 1Garcia v. Hernandez, 21-338 (La. App. 5 Cir. 4/11/22), 339 So. 3d 61, 69 (holding that trial court’s custody judgment under PSFVRA was a considered decree). For more detailed discussion of Bergeron, see Section 4.4.3 of the chapter on family law.
• 2La. R.S. 46:2134(E).
• 3The fact that the legislature wrote an explicit exception into the DAAA but did not do so in the PSFVRA is evidence of its intent.
• 4Bergeron v. Bergeron, 492 So. 2d 1193 (La. 1986).
• 5Coleman v. Manley, 15-778 (La. App. 5 Cir. 3/16/16), 188 So. 3d 395 (holding that an award of domiciliary parentage under the PSFVRA to a party does not constitute a “considered decree” and thus the application of the heightened Bergeron standard in the child custody modification proceeding is inapplicable); Cloud v. Dean, 2015-1050 (La. App. 3 Cir. 1/13/16), 184 So. 3d 235 (mother’s award of sole custody pursuant to PSFVRA was not a “considered decree” and thus not permanent; custody would be reconsidered after the father successfully completed a domestic violence intervention training).
• 6Rodriguez v. Wyatt, 11–82 (La. App. 5 Cir. 12/12/11), 102 So. 3d 109, 114 (citing Silbernagel v. Silbernagel, 06-879, p. 6 (La. App. 5 Cir. 4/11/07), 958 So.2d 13).
• 7La. R.S. 9:361.
• 8See also Garcia v. Hernandez, 21-338 (La. App. 5 Cir. 4/11/22), 339 So. 3d 61, 69 (holding that trial court’s custody judgement under PSFVRA was a considered decree).

Parents with a history of family violence may seek, but are not entitled to, either supervised or unsupervised visitation under the PSFVRA.1  PSFVRA visitation orders are subject to a variety of pre-conditions set forth by La. R.S. 9:341. The standard that applies to a request to modify visitation in a PSFVRA order depends upon whether the visitation being sought is supervised or unsupervised. Until a perpetrator of family violence proves he has met the requirements for unsupervised visits under La. R.S. 9:341,2  supervised visits cannot be modified in ways that do not include the safety-related restrictions of La. R.S. 9:362.

For a request to modify supervised visitation to unsupervised visitation, the abusive parent must prove he has satisfied a variety of conditions that include successful completion of a batterer intervention treatment program since the last incident of abuse.3  But unsupervised visits will not be granted merely because the treatment program was completed.4  At the hearing, the court must also consider evidence of the abusive parent’s current mental health condition and the possibility of continuing abuse. And the party seeking visitation must prove 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 proven, the court may continue the supervision and impose any restrictions, conditions, and safeguards necessary to minimize any risk of harm to the child.

All subsequent requests to modify or expand visitation in a PSFVRA case will continue to be governed by La. R.S. 9:341. There is no legal “work-around” that can change a PSFVRA case into an ordinary custody or visitation case subject to a best interest test alone. Some family law attorneys will assert that the passage of time or compliance with past orders should eventually entitle the parent with a history of abuse to assert custodial rights or request less onerous visitation restrictions than those set out in La. R.S. 9:341. This argument conflicts with the plain language of the governing statutes and is not supported by any legal authority.

• 1La. C.C. art. 136; La. R.S. 9:341.
• 2For further discussion of these requirements, see Section 8.6.1.
• 3La. R.S. 9:341
• 4Id.