“Family violence” includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code, except negligent injury and defamation, committed by one parent against the other parent or any of the children.1 This definition of family violence tracks the definition of “domestic abuse” in the Domestic Abuse Assistance Act. The two definitions differ only in that the PSFVRA limits acts of “family violence” to acts perpetrated by one parent upon the other parent (as opposed to the various relationships between parties that can invoke application of the DAAA).2 Amendments made to La. C.C. art. 134(B) in 2018 appear to have erased this distinction, so that acts of domestic abuse against other household members or dating partners now also trigger the PSFVRA custody and visitation restrictions.3 If so, the change would supersede prior case law excluding incidents of abuse committed by a parent against a non-parent, such as a girlfriend or a stepmother.4
Because the definitions are the same, case law on what constitutes “domestic abuse” under the DAAA is controlling when determining “family violence” under the PSFVRA.5 “Family violence,” like domestic abuse, includes battery, even if merely offensive and not injurious; it also includes threats to injure without touching, and forced sex.6 The violence does not have to be frequent or continuous.7 The definition is subject to broad interpretation because of the “including but not limited to” language, but as in DAAA cases, courts are unlikely to apply the PSFVRA in cases that do not involve physical violence, threats, assault, or an offense against the person that constitutes a violation of the criminal code.8 Because stalking is an offense against the person that violates the criminal code, the Post-Separation Family Violence Relief Act should apply in intimate partner stalking cases, even in the absence of direct threats or physical violence.
Though courts will not usually apply the PSFVRA in cases that involve no threats of harm or physical violence, lawyers should consider whether some cases with less typical fact patterns still warrant the Act’s application. For example, in Cockheran v. Christopher, the Fourth Circuit affirmed the trial court’s application of the PSFVRA where one of the acts of “family violence” was the father’s attempt to control the mother by threatening to turn her over to a former sex-trafficker from whom she was hiding.9 There is a legitimate argument that, from the standpoint of effecting the Act’s protective purpose, abuse in the form of extreme control, coercion, and intimidation should sometimes be included within the meaning of the statute. Research suggests that control and coercion are stronger predictors of lethality and other negative outcomes for victims than are the frequency or severity of past physical abuse.10 So, a victim who has not been physically abused but who is not allowed to leave her home without her husband’s permission, who has been “punished” by abuse of a family pet, or whose activities are routinely monitored and restricted, may face lethality risks upon separation that would make the Act’s application consistent with its statutory purpose.
Even when a good faith argument exists for applying the Act’s protections in absence of physical abuse, these cases can sometimes present challenges and require expert testimony. Attorneys and their clients should carefully weigh the risk that the victim may lose credibility with a judge who could conclude that she is exaggerating the seriousness of her situation and making unsubstantiated claims of abuse. The abusive party may accuse the victim of making baseless claims to interfere with the parent/child relationship and mount a “parental alienation” defense. Cases involving claims of parental alienation can result in dangerous custody outcomes.11
- 1La. R.S. 9:362(3); G.N.S. v. S.B.S., 35,348-CA (La. App. 2 Cir. 9/28/01), 796 So. 2d 739 (granting sole custody based on violence to child); Duhon v. Duhon, 01-0731 (La. App. 3 Cir. 12/12/01), 801 So. 2d 1263 (unjustified corporal punishment of child constituted “family violence”); Hollingsworth v. Semerad, 35,264-CA (La. App. 2 Cir. 10/31/01), 799 So. 2d 658 (a father’s abuse of the stepmother does not allow the mother to invoke the PSFVRA to restrict custody and visitation); Hudson v. Strother, 2017-1044 (La. App. 3 Cir. 5/2/18), 246 So. 3d 851 (a boyfriend’s abuse of the mother does not allow the father to invoke the PSFVRA to restrict custody and visitation). But see Merrells v. Dotray, 53,551 (La. App. 2 Cir. 7/8/20), 299 So. 3d 208, 214 (holding that La. C.C. art. 134(B) requires consideration of violence against prior dating partner under the 2018 amendments).
- 2At least one court of appeal has concluded that this distinction no longer exists since Article 134 was amended in 2018. Article 134(B) now states that “in cases involving a history of committing family violence, as defined in La. R.S. 9:362, or domestic abuse, as defined in R.S. 46:2132,” visitation must be determined under La. R.S. 9:341 and La. R.S. 9:364. See Merrells, 53,551, 299 So. 3d at 214.
- 3Merrells, 53,551, 299 So. 3d at 214 (finding that district court abused its discretion in awarding domiciliary custody to father under best interest test because under Article 134(B), trial court was bound to consider father’s prior conviction of domestic abuse battery against a dating partner and incident where he damaged mother’s front door and raised hand to threaten to hit her).
- 4Hollingsworth, 35,264-CA, 799 So. 2d 658 (holding that a father’s abuse of the stepmother does not allow the mother to invoke the PSFVRA to restrict custody and visitation).
- 5For further discussion, see Section 4.4.1.
- 6See Hicks v. Hicks, 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261; Michelli v. Michelli, 93 CA 2128 (La. App. 1 Cir. 5/5/95), 655 So. 2d 1342; Harper v. Harper, 537 So. 2d 282 (La. App. 4 Cir. 1988).
- 7Michelli, 93 CA 2128, 655 So. 2d 1142; Merrells, 53,551, 299 So. 3d at 214 (finding that district court abused its discretion in awarding domiciliary custody to father under best interest test where court failed to consider father’s prior conviction of domestic abuse battery against a dating partner and for incident where he damaged mother’s front door and raised hand to threaten to hit her).
- 8Smith v. Smith, 44-663 (La. App. 2 Cir. 8/19/09), 16 So. 3d 643, 651 (holding the trial court did not err in refusing to apply the PSFVRA where evidence showed that each party provoked verbal and physical altercations and no serious bodily injury had occurred); Bourgeois v. Bourgeois, 16-676 (La. App. 5 Cir. 4/12/17), 218 So. 3d 684 (holding the trial court did not err in refusing to apply the PSFVRA where evidence showed that wife’s angry and violent behavior stemmed from being confronted with husband’s infidelity and instances did not continue post-separation).
- 9Cockheran ex rel. Cockheran v. Christopher, 2021-0370, p. 3 (La. App. 4 Cir. 10/28/21), 331 So. 3d 389, 392.
- 10Evan Stark, Rethinking Custody Evaluation in Cases Involving Domestic Violence, 6 J. Child Custody 287, 293 (2009); Jacquelyn Campbell, et al., Risk Factors for Femicide in Abusive Relationships, 93 Am. J. Pub. Health 1089 (2003). This study found that three factors (1) separation, (2) the presence of a weapon, and (3) the existence of control increased lethality risk nine-fold. The frequency and severity of past violence was a less accurate predictor of dangerousness. Id.
- 11For further discussion of the misuse of “parental alienation” as a defense, see Section 8.8.3.