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.

Post-Separation Family Violence Relief Act, La. R.S. 9:361-369

§ 361. Legislative findings

         The legislature hereby reiterates its previous findings and statements of purpose set forth in R.S. 46:2121 and 2131 relative to family violence and domestic violence. The legislature further finds that the problems of family violence do not necessarily cease when the victimized family is legally separated or divorced. In fact, the violence often escalates, and child custody and visitation become the new forum for the continuation of the abuse. Because current laws relative to child custody and visitation are based on an assumption that even divorcing parents are in relatively equal positions of power, and that such parents act in the children’s best interest, these laws often work against the protection of the children and the abused spouse in families with a history of family violence. Consequently, laws designed to act in the children’s best interest may actually effect a contrary result due to the unique dynamics of family violence.

§ 362. Definitions

         As used in this Part:

         (1) “Abused parent” means the parent who has not committed family violence.

         (2) “Family violence” 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 injuring and defamation, committed by one parent against the other parent or against any of the children. “Family violence” does not include reasonable acts of self-defense utilized by one parent to protect himself or herself or a child in the family from the family violence of the other parent.

         (3) “Injunction” means a temporary restraining order or a preliminary or a permanent court ordered injunction, as defined in the Code of Civil Procedure, which prohibits the violent parent from in any way contacting the abused parent or the children except for specific purposes set forth in the injunction, which shall be limited to communications expressly dealing with the education, health, and welfare of the children, or for any other purpose expressly agreed to be the abused parent. All such injunctions shall prohibit the violent parent, without the express consent of the abused parent, from intentionally going within fifty yards of the home, school, place of employment, or person of the abused parent and the children, or within fifty feet of any of their automobiles, except as otherwise, necessitated by circumstances considering the proximity of the parties’ residences or places of employment.

         (4) “Supervised visitation” means face to face contact between a parent and a child which occurs in the immediate presence of a supervising person approved by the court under conditions which prevent any physical abuse, threats, intimidation, abduction, or humiliation of either the abused parent or the child. The supervising person shall not be any relative, friend, therapist, or associate of the parent perpetrating family violence. With the consent of the abused parent, the supervising person may be a family member or friend of the abused parent. At the request of the abused parent, the court may order that the supervising person shall be a police officer or other competent professional. The parent who perpetrated family violence shall pay any and all costs incurred in the supervision of visitation. In no case shall supervised visitation be overnight, or in the home of the violent parent.

         (5) “Treatment program” means a course of evaluation and psychotherapy designed specifically for perpetrators of family violence, and conducted by licensed mental health professionals.

         (6) “Court” means any district court, juvenile court, or family court having jurisdiction over the parents and/or child at issue.

§ 363. Ordered mediation prohibited

         Notwithstanding any other provision of law to the contrary, in any separation, divorce, child custody, visitation, child support, alimony, or community property proceeding, no spouse or parent who satisfied the court that he or she, or any of the children, has been the victim of family violence perpetrated by the other spouse or parent shall be court ordered to participate in mediation.

§ 364. Child custody; visitation

         A. There is created a presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children. The court may find a history of perpetrating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence.  The presumption shall be overcome only by a preponderance of the evidence that the perpetrating parent has successfully completed a treatment program as defined herein, is not abusing alcohol and the illegal use of drugs scheduled in R.S. 40:964, and that the best interest of the child or children requires that parent’s participation as a custodial parent because of the other parent’s absence, mental illness or substance abuse, or such other circumstances which affect the best interest of the child or children. The fact that the abused parent suffers from the effects of the abuse shall not be grounds for denying that parent custody.

         B. If the court finds that both parents have a history of perpetrating family violence, custody shall be awarded solely to the parent who is less likely to continue to perpetrate family violence. In such a case, the court shall mandate completion of a treatment program by the custodial parent. If necessary to protect the welfare of the child, custody may be awarded to a suitable third person, provided that the person would not allow access to a violent parent except as ordered by the court.

         C. If the court finds that a parent has a history of family violence, the court shall only allow supervised child visitation with that parent, conditioned upon that parent’s participation in and completion of a treatment program. Unsupervised visitation shall only be allowed if shown by a preponderance of the evidence that the violent parent has successfully completed a treatment program, is not abusing alcohol and psychoactive drugs, poses no danger to the child, and that such visitation is in the child’s best interest.

         D. If any court finds that a parent has sexually abused his or her child or children, the court shall prohibit all visitation and contact between the abusive parent and the children, until such time, following a contradictory hearing, that the court finds that the abusive parent has successfully completed a treatment program designed for such sexual abusers, and that supervised visitation is in the children’s best interest. Any testimony by a licensed mental health professional with training, experience, and expertise in treating sexual abuse victims, who is the therapist for the abused child, shall be given greater weight by the court than other testimony on issues of visitation.

§ 365. Qualification of mental health professional

         Any mental health professional appointed by the court to conduct a custody evaluation in a case where family violence is an issue shall have current and demonstrable training and experience working with perpetrators and victims of family violence.

§ 366. Injunctions

         A. All separation, divorce, child custody, and child visitation orders and judgments in family violence cases shall contain an injunction as defined herein. Any violence of the injunction, if proved by the appropriate standard, shall be punished as contempt of court, and shall result in a termination of all court ordered child visitation.

         B. Whenever a parent is under a criminal bill of information or indictment for any crime against the person of a child or other parent, the court, on the motion of the state or the other parent, shall prohibit all contact between the billed or indicted parent and the other spouse and all children of the family. Supervised visitation may be reinstated if, upon a contradictory hearing initiated by a motion of the billed or indicted parent, the court finds it to be in the best interest of the child.

§ 367. Costs

         In any family violence case, all court costs, attorney fees, evaluation fees, and expect witness fees incurred in furtherance of this Part shall be paid by the perpetrator of the family violence, including all costs of medical and psychological care for the abused spouse, or for any of the children, necessitated by the family violence.

§ 368. Other remedies not affected

         This Part shall in no way affect the remedies set forth in R.S. 46:2181 through 2142, the Criminal Code, the Children’s Code, or elsewhere; however, the court, in any case brought under R.S. 46:2181 et seq., may impose the remedies provided herein.

§ 369. Limitations