Findings and rulings made in Domestic Abuse Assistance Act protective orders are not res judicata in any subsequent proceeding.1 This means that the family violence must be re-litigated in subsequent proceedings, most notably a subsequent custody suit seeking sole custody under PSFVRA—if it was not pled in the protective order petition. Therefore, you should be prepared to prove incidents of family violence again. On the other hand, if the protective order finding included a finding of a “history of family violence” under the PSFVRA, that finding is made under a different statute and could be binding in that suit and future litigation.2
If the defendant does not appear at the subsequent hearing for permanent orders, you may ask the court to take judicial notice of the petitioner’s previous testimony. Some courts will take judicial notice of the testimony, and the petitioner will not be required to testify again. It is possible this might leave the judgment more subject to later challenge, so lawyers should weigh the costs and benefits. If the court has taken judicial notice of previous testimony and there is a subsequent appeal, it is essential that the victim’s attorney designate the previous testimony for inclusion in the appellate record. If it does not appear in the record on appeal, it cannot be considered.
Even though most findings in a “stand alone” Title 46 protective order proceedings are not binding in future litigation, as a practical matter, judges are unlikely to make subsequent rulings significantly inconsistent with their own prior factual determinations. For this reason, lawyers should treat Title 46 custody determinations as a critical juncture for preserving a client’s long-term custody rights and goals.
A temporary custody provision in a consent judgment will almost always have significant implications for future custody litigation. For example, a judge may be reluctant to impose PSFVRA visitation restrictions in a case where a petitioner has previously consented to less restrictive visitation in the protective order case. Often survivors seeking orders of protection make concessions regarding child custody that they later regret, in part because of the perception it creates that the abusive party presents little risk to the children. Lawyers should be careful to fully advise clients about the implications of consent orders so that they can make fully informed decisions.
- 1La. R.S. 46:2134(E).
- 2For further discussion of the potential length of a temporary custody determination, see Section 5.1.2.