What is the legal definition of domestic abuse in Louisiana?
This section defines domestic violence/abuse for the purposes of getting a protective order. ”Domestic abuse” includes, but is not limited to, one or more of the following acts between “family members” or “household members” or “dating partners”:
- physical abuse;
- sexual abuse;
- stalking, cyberstalking or any other offense (physical or non-physical) in the Criminal Code of Louisiana (except for negligent injury and defamation) - you can read the Criminal Code of Louisiana on the LA Legislature website; and
- elder abuse, which is defined as “abuse or neglect” of an adult committed by an adult child or adult grandchild.1
1 LA R.S. 46:2132(4)
What types of protective orders are there? How long do they last?
There are three types of protective orders:
Emergency Temporary Restraining Orders: If you are in need of emergency protection outside of regular court hours, the court may grant you an emergency temporary restraining order if there is an “immediate and present danger of abuse.” The judge must consider any and all past history of abuse, or threats of abuse, in determining whether or not there is an immediate and present danger of abuse. (There is no requirement that the abuse itself be recent, immediate, or present.) If you are issued this order, it will only be good until the close of the next business day that the court is open. For the protection to remain in effect, you must go to court before the close of the next business day to request a temporary restraining order and/or a protective order.1
Temporary Restraining Orders: When you go to court to file for a long-term protective order, you can also ask for a temporary restraining order (TRO). The court may issue you a TRO during an ex parte hearing without the abuser present if there is an “immediate and present danger of abuse.” The judge must consider any and all past history of abuse, or threats of abuse, in determining whether or not there is an immediate and present danger of abuse. (There is no requirement that the abuse itself be recent, immediate, or present.) As soon as a TRO is issued, the abuser will be notified that you have an order against him/her. The court will give you a date (usually within 21 days) for a full court hearing where you and the abuser each have a chance to be present and tell your sides of the story.2
Long-term Protective Orders: A long-term protective order can be issued only after a court hearing where you and the abuser both have the opportunity to tell your sides of the story to a judge. You must attend that hearing. If you do not go to the hearing, your TRO may expire and you will have to start the process over. A long-term order will last for up to 18 months, unless otherwise stated.3 However, the part of the order that says the abuser should not ”abuse, harass, or interfere with the petitioner or his/her employment; should not go near the residence or place of employment of the petitioner, the minor children, or any person on whose behalf a the petition was filed” can last for an indefinite (unlimited) period of time.4 Orders may also be extended. See How do I change, extend, or cancel my protective order?
1 LA R.S. 46:2135(A),(F)
2 LA R.S. 46:2135(A)
3 LA R.S. 46:2136(F)(1)
4 LA R.S. 46:2136(F)(2)(a); see also LA R.S. 46:2135(A)(1)
What protections can I get in a protective order?
In a temporary restraining order, a judge may order the abuser to:
- stop threatening, harassing, or hurting you;
- not contact or interfere with you or your children (and give you temporary custody);
- stay away from your and your children’s residence, places of employment, schools, etc.;
- prevent you and the abuser from giving away, selling, or destroying any mutually-owned property;
- move out of the residence (if you live together);
- Note: If the abuser solely owns or leases the house or apartment, s/he may not be asked to move out unless the abuser has a legal duty to support you or your children, such as a spouse or parent may;
- return your personal property to you; and
- give you possession of your pet or order the abuser to stop abusing your pet.1
In a long-term protective order (after a full hearing), a judge may:
- order all of the relief listed above; and
- include the following additional terms:
- establish temporary visitation;
- order the abuser to pay temporary child support if you have children with the abuser;
- order the abuser to pay temporary spousal support if you are married to the abuser;
- give you possession of a shared home, even if the abuser owns it, if you are the abuser’s spouse or have custody of your and the abuser’s minor children;
- order either a medical or mental health evaluation (or both) of the abuser to be conducted by an independent court-appointed evaluator who qualifies as an expert in the field of domestic abuse and who has no family, financial, or prior medical or mental health relationship with the abuser or his/her attorney of record; and
- order the abuser to attend counseling.2
In addition, the law says that the abuser must (“shall”) pay for all of your court costs, attorney fees, costs of enforcing or modifying the order, costs of appeals, evaluation fees, and expert witness fees based on filing or defending any proceeding concerning a domestic abuse protection order. The abuser must also pay for all costs of medical and psychological care for you (the abused adult), or for any of your children when the care is needed due to the domestic violence.3
Note: Louisiana law prohibits the defendant (abuser) from possessing a firearm or carrying a concealed weapon while the long-term protective order is in effect if:
- the order includes a finding that the defendant represents a believable (credible) threat to the physical safety of a family member, household member, or dating partner; and
- the order includes a notice to the defendant about this law and about the federal firearm law.4
1 LA R.S. § 46:2135
2 LA R.S. § 46:2136
3 LA R.S. § 46:2136.1
4 LA R.S. § 46:2136.3
In which parish can I file for a protective order?
You can file for a protective order in the parish where the marital home is located (or the home you shared with the abuser if you are unmarried), where you live, where the abuser lives, where the abuse occurred, or where divorce or annulment proceedings could be filed.1
1 LA R.S. 46:2133(B)
If the abuser lives in a different state, can I still get an order against him/her?
When you and the abuser live in different states, the judge may not have “personal jurisdiction” (power) over an out-of-state abuser. This means that the court may not be able to grant an order against him/her.
There are a few ways that a court can have personal jurisdiction over an out-of-state abuser:
- The abuser has a substantial connection to your state. Perhaps the abuser regularly travels to your state to visit you, for business, to see extended family, or the abuser lived in your state and recently fled.
- One of the acts of abuse “happened” in your state. Perhaps the abuser sends you threatening texts or harassing phone calls from another state but you read the messages or answer the calls while you are in your state. The judge could decide that the abuse “happened” to you while you were in your state. It may also be possible that the abuser was in your state when s/he abused you s/he but has since left the state.
- If you file your petition and the abuser gets served with the court petition while s/he is in your state, this is another way for the court to get jurisdiction.
However, even if none of the above apply to your situation, it doesn’t necessarily mean that you can’t get an order. If you file, you may be granted an order on consent or the judge may find other circumstances that allow the order to be granted.
You can read more about personal jurisdiction in our Court System Basics - Personal Jurisdiction section.
Note: If the judge in your state refuses to issue an order, you can file for an order in the courthouse in the state where the abuser lives. However, remember that you will likely need to file the petition in person and attend various court dates, which could be difficult if the abuser’s state is far away.