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
(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
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
§ 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
No public funds allocated to programs which provide
services to victims of domestic violence shall be used to provide services to the perpetrator of domestic violence.