- Amending a pro se petition
- If a client has come to you after filing a pro se petition, review it to determine whether it should be amended and re-filed. If amending is necessary, the amended petition will have to be re-served and a new court date will probably be set. To determine whether a petition should be amended, consider whether the petition sufficiently pleads incidents that are essential to establishing a history of abuse and dangerousness. For example, petitions should, at a minimum, include allegations about the most recent incident, the worst incident, incidents resulting in injuries, and incidents involving guns, weapons, strangulation, stalking, or death threats. Petitions should also provide information about the general frequency of abuse. Assume that a judge will exclude testimony about any incident not explicitly alleged (even though the law does not require such exclusion). Additionally, the failure to plead important information incidents like those described above can be later used as impeachment to undermine your client’s credibility in a custody or criminal case – should she raise them later.
- Drafting an original petition
- When drafting a protective order petition, the LPOR forms will prompt you to write about the most recent incident of violence and the history of violence. As stated above, petitions should include allegations about the most recent incident, the worst incident, incidents resulting in injuries, and incidents involving guns, weapons, strangulation, stalking, or death threats. Petitions should also provide information about the general frequency of abuse. You should also usually include any incidents involving current criminal charges.
- Special child custody considerations
- A protective order petitioner may invoke the Post-Separation Family Violence Relief Act by asking that it be applied to the child custody determination.1 Here, the petitioner will need to show a “history of family violence” to secure sole custody.
- A petitioner requesting temporary child custody in a protective order proceeding may also want to make sure the petition includes information about whether the child has been present during the violence, whether the child has intervened to protect the abused parent, or whether the child has also been abused. Failure to allege incidents involving abuse to the child can be used to impeach the petitioner later, should she allege them in a subsequent child custody proceeding. At the same time, use extreme caution before raising especially complex child abuse claims such as child sex abuse, if there will not be sufficient time to prepare the case and retain experts.
- 1La. R.S. 9:368.