Note:

Changes in the laws, rules and regulations since the 2001 edition of the LSBEP Directory and Statutory Reference book appear in boldface type in this 2002 edition.

Domestic Abuse Assistance Act, R.S. 46:2131 et seq. (Supp. 1991)

§ 2131. Purposes

         The purpose of this Part is to, recognize and address the complex legal and social problems created by domestic violence. The legislature finds that existing laws which regulate the dissolution of marriage do not adequately address problems of protecting and assisting the victims of domestic abuse. The legislature further finds that previous societal attitudes have been reflected in the policies and practices of law enforcement agencies and prosecutors which have resulted in different treatment of crimes occurring between family or household members and those occurring between strangers. It is the intent of the legislature to provide a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection. Furthermore, it is the intent of the legislature that the official response of law enforcement agencies to cases of domestic violence shall stress the enforcement of laws to protect the victim and shall communicate the attitude that violent behavior is not excused or tolerated. Added by Acts 1982, No. 782, § 2.

§ 2132. Definitions As used in this Part:

         (1) “Adult” means any person eighteen years of age or older, or any person under the age of eighteen who has been emancipated by marriage or otherwise.

         (2) “Court” shall mean any court of competent jurisdiction in the state of Louisiana.

         (3) “Domestic abuse” includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family or household member against another. Amended by Acts 1986, No. 459, § 1, eff. July 2, 1986.

         (4) “Family or household member” means spouses, former spouses, parents and children, stepparents, stepchildten, foster parents, foster children, and any person living in the same residence with the defendant as a spouse, whether married or not, if a minor child or children also live in the residence, who are seeking protection under this Part. Amended by Acts 1986, No. 154, § 1.

§ 2133. Jurisdiction; venue; standing

         A. Any court in the state of Louisiana which is enpowered to hear family or juvenile matters shall have jurisdiction over proceedings appropriate to it under this Part. Amended by Acts 1986, No. 459, § 1, eff. July 2, 1986.

         B. Venue lies:

                (1) In the parish where the marital domicile is located.

                (2) In the parish where the defendant resides.

                (3) In the parish where the abuse is alleged to have been committed.

                (4) In the parish where the petitioner resides only as to the issuance of a temporary restraining order and protective order directing the defendant to refrain from abusing, harassing, or interfering with the person or employment or from going near the residence or place of employment of a petitioner or the minor children or any person alleged to be incompetent on whose behalf a petition was filed under this Part.

                (5) In the parish where an action for an annulment of marriage or for a divorce could be brought pursuant to Code of Civil Procedure Art. 3941(A). Amended by Acts 1984, No. 80, § 1; Acts 1991, No. 361, § 1.

         C. An adult may seek relief under this Part by filing a petition with the court alleging abuse by the defendant. Any parent, adult household member, or district attorney may seek relief on behalf of any minor child or any person alleged to be incompetent by filing a petition with the court alleging abuse by the defendant. A petitioner’s right to relief under this Part shall not be affected by leaving the residence or* household to avoid further abuse. Added by Acts 1982, No. 782, §2.

§ 2134. Petition

         A. A petition filed under the provisions of this Part shall contain the following:

                (1) The name, address, and parish of residence of each petitioner and each person on whose behalf the petition is filed, and that of each individual alleged to have committed abuse, if known; if the petition is being filed on behalf of a child or person alleged to be incompetent, the relationship between that person and the petitioner.

                (2) The facts and circumstances concerning the alleged abuse.

                (3) ‘The relationship between each petitioner and each individual alleged to have committed abuse.

                (4) A request for one or more protective orders.

         B. If the petition requests a protective order for a spouse and alleges that the other spouse has committed abuse, the petition shall state whether a suit for divorce is pending.

         C. If the petition requests the issuance of an ex parte temporary restraining order, the petition shall contain an affidavit signed by each petitioner that the facts and circumstances contained in the petition are true and correct to the best knowledge, information, and belief of petitioner. Any false statement under oath contained in the affidavit shall constitute perjury and shall be punishable by a fine of not more than one thousand dollars, or by imprisonment, with or without hard labor, for not more than five years, or both.

         D. If a suit for divorce is pending, any application for a protective order shall be filed in that proceeding and shall be heard within the delays provided by this Part. Any decree issued in a divorce proceeding filed subsequent to a petition filed or an order issued pursuant to this Part may, in the discretion of the court hearing the divorce proceeding, supercede in whole or in part the orders issued pursuant to this Part. Such subsequent decree shall be forwarded by the rendering court to the court having jurisdiction of the petition for a protective order and shall be made a part of the record thereof. The findings and rulings made in connection with such protective orders shall not be res judicata in any subsequent proceeding. Added by Acts 1990, No. 361, § 2, eff. Jan. 1, 1991.

§ 2135. Temporary restraining order

         A. Upon good cause shown in an ex parte proceeding, the court may enter a temporary restraining order, without bond, as it deems necessary to protect from abuse the petitioner, any minor children, or any person alleged to be an incompetent. Immediate and present danger of abuse shall constitute good cause for purposes of this Subsection. The order may include, but is not limited to, the following:

                (1) Directing the defendant to refrain from abusing, harassing, or interfering with the person or employment or going near the residence or place of employment of the petitioner, the minor children, or any person alleged to be incompetent, on whose behalf a petition was filed under this Part.

                (2) Awarding to a party use and possession of specified community property, such as an automobile.

                (3) Granting possession to the petitioner of the residence or household to the exclusion of the defendant, by evicting the petitioner where:

                        (a) The residence is jointly owned in fendant and the petitioner or the person on

                        (b) The residence is solely owned by behalf the petition is brought; or

                        (c) The residence is solely leased by defendant and defendant has a duty to support the petitioner or the person on whose behalf the petition is brought.

                (4) Prohibiting either party from the transferring, encumbering, or otherwise disposing of property mutually owned or leased by the parties, except when in the ordinary course of business, or for the necessary support of the party or the minor children.

                (5) Awarding temporary custody of minor children or persons alleged to be incompetent.

         B. If a temporary restraining order is granted without notice, the matter shall be set within ten days for a rule to show cause why the protective order should not be issued, at which time the petitioner must prove the allegations of abuse by a preponderance of the evidence. The defendant shall be given notice of the temporary restraining order and the hearing on the rule to show cause by service of process as required by law.

         C. During the existence of the temporary restraining order, a party shall have the right to return to the family residence once to recover personal clothing and necessities, provided the party is accompanied by a law enforcement officer to insure the protection and safety of the parties.

         D. If no temporary restraining order has been granted, the court shall issue a rule to show cause why the protective order should not be issued, and set the rule for hearing on the earliest day that the business of the court will permit, but in any case within ten days from the date of service of the petition at which time the petitioner must prove the allegations of abuse by a preponderance of the evidence. The defendant shall be given notice by service of process as required by law.

         E. If the hearing pursuant to R.S. 46:2135(B) or (D)* is continued, the court shall make or extend such temporary restraining orders as it deems necessary. Any continuance of a hearing ordered pursuant to R.S. 46:2135(B) or (D)*shall not exceed ten days.

         F. The court may, in its discretion, grant an emergency temporary restraining order outside regular court hours. Added by Acts 1982, No. 782, § 2.

*In subsec. E, “(B) or (D)” was substituted for “(A) or (C)” on authority of R.S. 24:253.

*In subsec. E, “(B) or (D)” was substituted for “(A) or (C)” on authority of R.S. 24:253.

§ 2136. Protective orders; content; modification; service

         A. The court may grant any protective order or approve any consent agreement to bring about a cessation of abuse of a party, any minor children, or any person alleged to be incompetent, which relief may include, but is not limited to:

                (1) Granting the relief enumerated in R.S. 46:2135.

                (2) Where there is a duty to support a party, any minor children, or any person alleged to be incompetent living in the residence or household; ordering payment of temporary support or provision of suitable housing for them.

                (3) Awarding temporary custody of or establishing temporary visiting rights and conditions with regard to any minor children or person alleged to be incompetent.

                (4) Ordering counseling or professional medical treatment for the defendant or the abused person, or both.

         B. On the motion of any party, the court, after notice to the other parties and a hearing, may modify a prior order to exclude any item included in the prior order, or to include any item that could have been included in the prior order.

         C. A protective order made under this Part shall be served on the person to whom the order applies in open court at the close of the hearing, or in the same manner as a writ of injunction. The clerk of the issuing court shall send a copy of the order or any modification thereof to the chief law enforcement official of the parish where the person or persons protected by the order reside. A copy of the protective order shall be retained on file in the office of the chief law enforcement officer as provided herein until otherwise directed by the court.