Abuse Laws
Louisiana
2001
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PART II. DOMESTIC ABUSE ASSISTANCE
§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.
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§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. "Domestic abuse" also includes abuse
of adults as defined in R.S. 14:403.2 when committed by an adult
child or adult grandchild.
(4) "Family members" means spouses, former spouses,
parents and children, stepparents, stepchildren, foster parents,
and foster children. "Household members" means any person of
the opposite sex presently or formerly living in the same residence
with the defendant as a spouse, whether married or not, who
are seeking protection under this Part. If a parent or grandparent
is being abused by an adult child or adult grandchild, the provisions
of this Part shall apply to any proceeding brought in district
court.
Added by Acts 1982, No. 782,§ 2. Acts 1986,
No. 154,§ 1; Acts 1986, No. 459,§ 1, eff. July 2,
1986; Acts 1993, No. 402,§ 2; Acts 1997, No. 1156,§
7; Acts 1999, No. 1200,§ 2.
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§2133. Jurisdiction;
venue; standing
A. Any court in the state of Louisiana which is
empowered to hear family or juvenile matters shall have jurisdiction
over proceedings appropriate to it under this Part.
B. Venue lies:
(1) In the parish where the
marital domicile is located or where the household 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.
(5) In the parish where an
action for annulment of marriage or for a divorce could be brought
pursuant to Code of Civil Procedure Article 3941(A).
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. Acts 1984,
No. 80,§ 1; Acts 1986, No. 459,§ 1, eff. July 2, 1986;
Acts 1991, No. 361,§ 1; Acts 1997, No. 1156,§ 7.
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§2134. Petition
A. A petition filed under the provisions of this
Part shall contain the following:
(1) The name of each petitioner
and each person on whose behalf the petition is filed, and the
name, address, and parish of residence 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. The address and parish of each petitioner and
each person on whose behalf the petition is filed may remain
confidential with the court.
C. 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.
D. 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.
E. 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,
supersede 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 1982, No. 782,§ 2; Acts 1990,
No. 361,§ 2, eff. Jan. 1, 1991; Acts 1997, No. 1156,§
7.
{{NOTE: SEE ACTS 1990, NO. 361,§ 5.}}
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§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. Any person
who shows 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 defendant or restoring possession to the petitioner where:
(a) The residence is jointly owned in equal proportion or
leased by the defendant and the petitioner or the person on
whose behalf the petition is brought;
(b) The residence is solely owned by the petitioner or the
person on whose 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 twenty 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 within twenty-four hours of the issuance of the order.
C. During the existence of the temporary restraining order,
a party shall have the right to return to the family residence
once to recover his or her personal clothing and necessities,
provided that 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.
G. Immediately upon entering a temporary restraining order,
the judge shall cause to have prepared a Uniform Abuse Prevention
Order, as provided in R.S. 46:2136.2(C), shall sign such order,
and shall forward it to the clerk of court for filing, all without
delay.
H. The clerk of the issuing court shall transmit the Uniform
Abuse Prevention Order to the Louisiana Protective Order Registry,
R.S. 46:2136.2(A), by facsimile transmission, mail, or direct
electronic input, where available, as expeditiously as possible,
but no later than the end of the next business day after the
order is filed with the clerk of court.
I. The initial rule to show cause hearing required pursuant
to Subsection B or D may be conducted by a hearing officer who
is qualified and selected in the same manner provided in R.S.
46:236.5(C). The hearing officer shall be subject to the applicable
limitations and shall follow the applicable procedures provided
in R.S. 46:236.5(C). The hearing officer shall make recommendations
to the court as to the action that should be taken in the matter.
Added by Acts 1982, No. 782,§ 2. Acts 1983, No. 406,§
1; Acts 1983, No. 407,§ 1; Acts 1984, No. 77,§ 1;
Acts 1997, No. 1156,§ 7; Acts 1999, No. 1200,§ 2;
Acts 1999, No. 1336,§ 1.
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§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
visitation 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. A protective order may be rendered pursuant to this Part
if the court has jurisdiction over the parties and subject matter
and either of the following occurs:
(1) The parties enter into a consent agreement.
(2) Reasonable notice and opportunity to be heard is given
to the person against whom the order is sought sufficient to
protect that person's right to due process.
C. Any protective order issued within this state or outside
this state that is consistent with Subsection B of this Section
shall be accorded full faith and credit by the courts of this
state and enforced as if it were the order of the enforcing
court.
D. 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.
E. 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 Uniform
Abuse Prevention Order, R.S. 46:2136.2(C), 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 Uniform Abuse Prevention Order shall be retained
on file in the office of the chief law enforcement officer as
provided herein until otherwise directed by the court.
F. Any final protective order or approved consent agreement
shall be for a fixed period of time, not to exceed eighteen
months, and may be extended by the court, after a contradictory
hearing, in its discretion. Such protective order or extension
thereof shall be subject to a devolutive appeal only.
G. Immediately upon granting a protective order or approving
any consent agreement, the judge shall cause to have prepared
a Uniform Abuse Prevention Order, as provided in R.S. 46:2136.2(C),
shall sign such order, and shall forward it to the clerk of
court for filing, all without delay.
H. The clerk of the issuing court shall transmit the Uniform
Abuse Prevention Order to the Louisiana Protective Order Registry,
R.S. 46:2136.2(A), by facsimile transmission, mail, or direct
electronic input, where available, as expeditiously as possible,
but no later than the end of the next business day after the
order is filed with the clerk of court.
Added by Acts 1982, No. 782,§ 2; Acts 1994, 3rd Ex. Sess.,
No. 22,§ 2; Acts 1997, No. 1156,§ 7; Acts 1999, No.
1200,§ 2.
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§2136.1. Costs paid
by abuser
All court costs, attorney fees, evaluation fees,
and expert witness fees incurred in furtherance of this Part
shall be paid by the perpetrator of the domestic violence, including
all costs of medical and psychological care for the abused adult,
or for any of the children, necessitated by the domestic violence.
Acts 1997, No. 1156,§ 7.
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§2136.2. Louisiana Protective
Order Registry
A. In order to provide a statewide registry for abuse prevention
orders to prevent domestic violence and to aid law enforcement,
prosecutors and the courts in handling such matters, there shall
be created a Louisiana Protective Order Registry administered
by the Judicial Administrator's Office, Louisiana Supreme Court.
The Judicial Administrator's Office shall collect the data transmitted
to it from the courts of the state and enter it into the Louisiana
Protective Order Registry.
B. The Louisiana Protective Order Registry encompasses peace
bonds, temporary restraining orders, protective orders, preliminary
injunctions, permanent injunctions, and court-approved consent
agreements resulting from actions brought pursuant to R.S. 46:2131
et seq., R.S. 9:361 et seq., R.S. 9:372, Children's Code Article
1564 et seq., Code of Civil Procedure Article 3604, or as part
of the disposition, sentence, or bail condition of a criminal
matter pursuant to Code of Criminal Procedure Article 327.1
or Article 871.1 as long as such order is issued for the purpose
of preventing violent or threatening acts or harassment against,
contact or communication with, or physical proximity to, another
person.
C. The courts of this state shall use a uniform form for the
issuance of any protective or restraining order, which form
shall be developed, approved, and distributed by the Judicial
Administrator's Office, shall be titled the "Uniform Abuse Prevention
Order".
D. The clerk of the issuing court shall send a copy of the
order or any modification thereof to the Louisiana Protective
Order Registry as expeditiously as possible but no later than
by the end of the next business day after the order is filed
with the clerk of court. Transmittal of the Uniform Abuse Prevention
Order may be made by facsimile transmission, mail, or directelectronic
input, where available, as expeditiously as possible, but no
later than the end of the next business day after the order
is filed with the clerk of court.
E. Upon formation, the registry shall immediately implement
a daily process of expungement of records and names of the parties
in all cases where either a temporary restraining order expires
without conversion to an injunction or, after an evidentiary
hearing, it is determined that a protective order is not warranted.
F. The judicial administrator's office shall make the Louisiana
Protective Order Registry available to state and local law enforcement
agencies, district attorney offices, the Department of Social
Services, office of family support, support enforcement services,
and the courts.
Acts 1997, No. 1156,§ 7; Acts 1999, No. 213,§ 1.
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§2137. Penalties; notice of penalty
in order
A. Upon violation of a temporary restraining order, a protective
order, or a court-approved consent agreement, the court may
hold the defendant in contempt of court and punish the defendant
by imprisonment in the parish jail for not more than six months
or a fine of not more than five hundred dollars, or both, and
may order that all or a part of any fine be forwarded for the
support of petitioner and dependents, in the discretion of the
court. Such sentence shall be imposed only after trial by the
judge of a rule against the defendant to show cause why he should
not be adjudged guilty of contempt and punished accordingly.
The rule to show cause may issue on the court's own motion,
or on motion of a party to the action or proceeding, and shall
state the facts alleged to constitute the contempt. A certified
copy of the motion, and of the rule to show cause, shall be
served upon the person charged with contempt in the same manner
as a subpoena, at least forty-eight hours before the time assigned
for the trial of the rule, which shall be scheduled within twenty
days of the filing of the motion for contempt.
B. Each protective order issued under this Part, including
a temporary ex parte order, shall have the following statement
printed in bold-faced type or in capital letters:
"A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR CONTEMPT
OF COURT BY A FINE OF NOT MORE THAN $500 OR BY CONFINEMENT IN
JAIL FOR AS LONG AS SIX MONTHS, OR BOTH, AND MAY BE FURTHER
PUNISHED UNDER THE CRIMINAL LAWS OF THE STATE OF LOUISIANA.
THIS ORDER SHALL BE ENFORCED BY ALL LAW ENFORCEMENT OFFICERS
AND COURTS OF THE STATE OF LOUISIANA."
C. Nothing contained herein shall be construed as a limitation
on any applicable provisions of the Louisiana Criminal Code.
Added by Acts 1982, No. 782,§ 2; Acts 1997, No. 1156,§
7; Acts 1999, No. 1200,§ 2.
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§2138. Assistance of
clerk of court
The clerk of court shall make forms available for
making application for protective orders under this Part, provide
clerical assistance to the petitioner when necessary, advise
indigent applicants of the availability of filing in forma pauperis,
provide the necessary forms, as supplied by the judicial administrator's
office, Louisiana Supreme Court, and provide the services of
a notary, where available, for completion of the affidavit required
in R.S. 46:2134(D).
Acts 1983, No. 195,§ 1; Acts 1997, No. 1156,§
7.
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§2139. Other relief
not affected
The granting of any relief authorized under this
Part shall not preclude any other relief authorized by law.
Added by Acts 1982, No. 782,§ 2.
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§2140. Law enforcement officers;
duties
Whenever a law enforcement officer has reason to believe that
a family or household member has been abused, the officer shall
immediately use all reasonable means to prevent further abuse,
including:
(1) Arresting the abusive party with a warrant or without
a warrant pursuant to Code of Criminal Procedure, Article 213,
if probable cause exists to believe that aggravated or second
degree battery has been committed by that person, whether or
not the offense occurred in the officer's presence.
(2) Arresting the abusive party in case of simple assault,
aggravated assault, or simple battery, whether or not in the
presence of the officer, when the officer reasonably believes
there is impending danger to the physical safety of the abused
person in the officer's absence. If there is no cause to believe
there is impending danger, arresting the abusive party is at
the officer's discretion.
(3) Assisting the abused person in obtaining medical treatment
necessitated by the battery; arranging for, or providing, or
assisting in the procurement of transportation for the abused
person to a place of shelter or safety.
(4) Notifying the abused person of his right to initiate criminal
or civil proceedings; the availability of the protective order,
R.S. 46:2136; and the availability of community assistance for
domestic violence victims.
Acts 1985, No. 442,§ 1, eff. July 12, 1985.
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§2141. Reporting
Whenever a law enforcement officer investigates
an allegation of domestic abuse, whether or not an arrest is
made, the officer shall make a written report of the alleged
incident, including a statement of the complainant, and the
disposition of the case.
Acts 1985, No. 442,§ 1, eff. July 12, 1985.
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§2142. Immunity
Any law enforcement officer reporting in good faith,
exercising due care in the making of an arrest or providing
assistance pursuant to the provisions of R.S. 46:2140 and 2141
shall have immunity from any civil liability that otherwise
might be incurred or imposed because of the report, arrest,
or assistance provided.
Acts 1985, No. 442,§ 1, eff. July 12, 1985.
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