While Louisiana generally requires notification of the noncustodial parent in the event of relocation,1 the PSFVRA exempts abused parents from Louisiana’s relocation notification statute.2 To be exempt, the parents must be protected by a current order of protection.3 Advise your clients about this rule and the possible need to extend non-permanent protective orders or injunctions (particularly Title 46 orders) if they plan to relocate.
Although the PSFVRA requires that all orders after a finding of family violence include an injunction against abuse,4 sometimes sole custody decrees or divorce judgments are entered without the required protective order. If this is your case, you should carefully assess whether compliance with the relocation statute is required. There do not appear to be any appellate decisions on this issue.
Even if compliance with the relocation statute is not required, there may be a need to seek modification of visitation if the abusive former partner has a court order for visitation with which the client can no longer comply from her new location. Failure to seek modification may expose the victim to a contempt motion even if the relocation statute authorized her to move without notice and court approval. Under La. R.S. 9:346(H), a pattern of willful and intentional violation (i.e., failure to allow court-ordered visitation, without good cause) can be grounds for custody or visitation modification. However, because the PSFVRA states exclusive grounds for custody determinations in family violence cases, La. R.S. 9:346(H) does not exempt a parent with a history of abuse from the PSFVRA presumption against sole or joint custody. So, any request to modify visitation under La. R.S. 9:346 would still be subject to the onerous modification burdens that apply to all family violence cases under the PSFRVA.5 Additionally, a modification under this section must also comply with the best interest and Bergeron tests.6
If your client is not exempt from the relocation statute, she must notify the other parent of her intent to relocate.7 Absent consent, court authorization is required to relocate a child before a final decision on the proposed relocation.8 Providing notice of a proposed relocation is not a change of circumstance warranting a change of custody.9 The factors for determination of a contested relocation are listed in La. R.S. 9:355.14. The relocating parent must show that the relocation is in good faith and the child’s best interest.10 The relocation statute mandates that the court consider family violence and substance abuse when considering opposition to relocation.11 The existence of domestic violence and stalking behavior, even when the behavior has abated, should strongly favor relocation of the abused parent.12
Under La. R.S. 9:355.17, moving without prior notice or moving in violation of a court order may constitute a change in circumstances warranting modification. However, La. R.S. 9:355.17 does not create an exception to the Bergeron test for modification of considered custody decrees.13 Nor does it create an exception to the PSFRVA requirements for custody or visitation modification. This means that the party seeking a custody modification on grounds that the other party either failed to give notice or moved in violation of an order must still meet the requirements of the PSFRVA, and also prove either that the present custody is so deleterious to the child it justifies a modification of the custody decree, or prove 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.14
- 1For further discussion, see Section 4.9.2 of the chapter on family law.
- 2La. R.S. 9:355.2(D)(2).
- 3Id. Eligible orders may be granted under the PSFVRA, the DAAA, the PDVA, or the Children’s Code. Id. Orders entered under general injunction statutes may also qualify. See id.
- 4La. R.S. 9:366.
- 5For discussion of these burdens, see Section 8.9.
- 6Jaligam v. Pochampally, 2016-0249, p. 17 (La. App. 4 Cir. 12/7/16), 206 So. 3d 298, 309 (concluding that trial court conducted a best interest test and Bergeron analysis sufficient to support modification under La. R.S. 9:346).
- 7La. R.S. 9:355.3–.4.
- 8La. R.S. 355.11.
- 9La. R.S. 9:355.17.
- 10La. R.S. 355.10.
- 11La. R.S. 9:355.14(11).
- 12H.S.C. v. C.E.C., 2005-1490 (La. App. 4 Cir. 11/8/06), 944 So. 2d 738, 750 (reversing order denying relocation request); see also Jaligam v. Pochampally, 2012-1510 (La. App. 4 Cir. 4/24/13), 115 So. 3d 694, 701 (affirming order allowing relocation on grounds that relocation was necessary, in part, because of father’s past abuse and controlling behavior).
- 13Gray v. Gray, 2011-548 (La. 7/1/11), 65 So. 3d 1247, 1260. Note that the Gray decision refers to the previous version of La. R.S. 9:355.11 which became La. R.S. 9:355.17 when the statute was amended in 2012. Both versions state that moving without prior notice or moving in violation of a court order may constitute a change of circumstances warranting custody modification, so the Gray holding still applies. See also Jaligam, 2016-0249, p. 17, 206 So. 3d at 309 (applying best interest test and Bergeron to a similar provision that says failure to allow court-ordered visits can warrant custody modification).
- 14Bergeron, 492 So. 2d 1193.