Louisiana

 

Louisiana Protective Orders and how to get a protective order.

 

What types of protective orders are there? How long do they last?

A protective order is a civil court order intended to provide protection from physical or sexual harm caused by force or threat of harm from a family or household member. There are three types of orders:

Emergency Temporary Restraining Orders: If you are in need of emergency protection outside regular court hours, the court may grant you an emergency temporary restraining order. This order provides you and your family members with immediate protection from an abuser. 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.

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.  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.*

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.**  However, the following part of the order can last for an indefinite (unlimited) period of time – it is the part which 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.”***  Orders may also be extended.

* LA R.S. 46:2135
** LA R.S. 46:2136(F)(1)
*** LA R.S. 46:2136(F)(2)(a); see also LA R.S. 46:2135(A)(1)

 

How can a protective order help me?

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 residence, place of employment, school, 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;
  • Return your personal property to you; and/or
  • Give you possession of your pet or order the abuser to stop abusing your pet.

In a long-term protective order (after a full hearing), a judge may:

  • Order all of the relief listed above (in the temporary restraining order section);
  • Establish temporary visitation;
  • Award you temporary support;
  • Order the abuser to attend counseling or get a professional medical evaluation;
  • Order the abuser to pay court costs and other fees, such as expert witness fees, medical bills and/or psychological bills.*

*  LA R.S. 46:2135; 46:2136

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.*

* LA R.S. 46:2133(B)

Who can get a protective order?

In Louisiana, you can seek legal protection from acts of domestic abuse done to you or your minor child by:

  • a family or household member, which includes your:
  • spouse or former spouse;
  • child, step-child, foster child, or grandchild;
  • parent, step-parent, foster parent or grandparents;* or
  • a dating partner, which is defined as any person who you have had an intimate or romantic relationship with, including a same-sex partner.  The judge will decide whether you have an intimate or romantic dating relationship based on:
  • the length of your relationship;
  • the type of relationship between yourself and the abuser; and
  • how often you and the abuser interacted.**

* LA R. S. 46: 2121.1(1)
** LA R. S. 46: 2151

 

Can I get a protective order against a same-sex partner?

Yes.  If you are a victim of domestic violence (as defined by LA law), you can get a protective order against a current or former same-sex partner since, under LA law, you are eligible to file a protective order against a dating partner.  A dating partner is defined as any person you have had an intimate or romantic relationship with.

The judge will decide whether you have an intimate or romantic dating relationship based on:

  • the length of your relationship;
  • the type of relationship between yourself and the abuser; and
  • how often you and the abuser interacted.*

* LA R.S. 46:2151

 

Can I get a protective order if I’m a minor?

Yes.  However, as a minor (a person under the age of 18), you will need a parent, an adult household member or a district attorney to file for the protective order on your behalf.*

* LA R.S. 46: 2133(c)

Can I keep my insurance coverage even though my abusive spouse was the policyholder?

Probably. If you are a victim of domestic abuse and you are covered under your spouse’s policy, you may be able to convert that insurance coverage to your own policy for you and your dependent children upon the judgment of divorce or judgment of legal separation from the abusive spouse.  The converted policy is supposed to provide the same benefits, including deductibles, coinsurance, and copayments, as the policy from which coverage is being converted.*

In order to convert the coverage to your own individual policy, you should:

  • Notify the health insurance company that you want to convert your spouse’s policy into your own individual policy within 30 days of receiving the notice of termination; AND
  • Provide the health insurance company with a copy of the divorce decree or separation order.*

*  LA R.S. 22:1078(C)

 

Are there fees to get a protective order? Do I need a lawyer?

Nothing. There are no filing fees and court costs for this process.*  For other questions about filing, you can find contact information for courthouses on the LA Courthouse Locations page.

Although you do not need a lawyer to file for a protective order, it may be to your advantage to seek legal counsel, especially if the abuser has a lawyer.  If you cannot afford a lawyer but want one to help you with your case, you can find contact information for lawyers on our LA Finding a Lawyer page.

* LA R.S. 46:2134(F)

 

Steps for obtaining a protective order

Step 1: Fill out the necessary forms and file them in court.

To start your case, you will need to fill out the necessary forms.  You may find it helpful to get the forms first and fill them out at home or with an advocate from a local domestic violence organization. You will find links to forms online on the LA Download Court Forms page.

On the forms, you are the “petitioner” and your abuser is the “defendant.”  Read the petition carefully and ask questions of the court clerk if you don’t understand something.  Write about the most recent incidents of violence, using descriptive language (slapping, hitting, grabbing, choking, threatening, etc.) that fits your situation. Be specific. Include details and dates, if possible.

A domestic violence organization may be able to provide you with help or support as you fill out the forms. See LA State and Local Programs for the location of an organization near you.

Note: Do not sign the application until you have shown it to a clerk. The form may need to be notarized or signed in the presence of court personnel, which will likely require you to have photo identification.

Step 2: A judge will review your petition and may issue a TRO..

After you finish filing your paperwork, the clerk will forward it to a judge. The judge may wish to ask you questions as s/he reviews your petition. The judge will decide whether or not to issue the temporary restraining order and will set a court date for a full hearing for a protective order.  You will be given a copy of your petition, along with papers that state the time and date of your hearing for a long-term protective order.

Step 3: Service of process

The clerk will also give a copy of the petition and the TRO to the sheriff’s office to serve the abuser.  Remember, your protective order is NOT valid until the abuser has been presented with it.  The abuser must be notified to be present at court on the date and time of the hearing, and informed of any temporary or emergency orders that a judge has granted you.

Usually the court will send copies of the order and notice of hearing to the police or sheriff, but in some areas you may have to bring the papers to the sheriff or police yourself. You may want to ask the court clerk or a domestic violence organization for more information about serving the abuser.

Do not try and serve the abuser in person with the papers yourself.

Step 4: The full court hearing

You must go to this hearing if you want to get a final protective order. If you do not go to the hearing, your temporary order will expire and you will have to start the process over. If you do not show up at the hearing it may possibly be harder for you to be granted an order in the future.  If the abuser does not show up for the hearing, the judge may still grant you a long-term protective order, or the judge may order a new hearing date.  If you cannot go to the hearing at the scheduled time, you may call the judge’s office to ask that your case be “continued,” but the judge may deny your request.

You may wish to hire a lawyer to help with your case, especially if the abuser has a lawyer. If you show up to court and the abuser has a lawyer and you do not, you may ask the judge for a “continuance” to set a later court date so you can have time to find a lawyer for yourself.  You can also represent yourself. See the Preparing Your Case section for information on representing yourself.

After the hearing

What should I do when I leave the courthouse?

Review the protective order before you leave the courthouse.  If something is wrong or missing, you might be able to ask the clerk how to get it corrected.  Here are some things that you may want to do when leaving the courthouse:

  • Keep a copy of the protective order with you at all times.
  • Leave copies of the order at your workplace, at your home, at the children’s school or daycare, in your car, with a sympathetic neighbor, and so on.
  • Give a copy to the security guard or person at the front desk where you live and/or work along with a photo of the abuser.
  • Give a copy of the order to anyone who is named in and protected by the order.
  • If the court has not given you an extra copy for your local law enforcement agency, you may want to take one of your extra copies and deliver it to them.
  • You may wish to consider changing your locks and your phone number if permitted by law.
  • Be aware of your safety while leaving the courthouse.  If you are concerned that the abuser may try to approach you, contact a court officer to see if you can be accompanied to your car.

Ongoing safety planning is important after receiving the protective order.  People can do a number of things to increase their safety during violent incidents, when preparing to leave an abusive relationship, and when they are at home, work, and school.  Many abusers obey protective orders, but some do not and it is important to build on the things you have already been doing to keep yourself safe.  View our Staying Safe page for some suggestions.  Advocates at local resource centers can assist you in designing a safety plan and can provide other forms of support.  For a list of domestic violence organizations, see our LA State and Local Programs page.

 

I was not granted a protective order. What are my options?

If you are not granted a protective order, there are still some things you can do to stay safe. It might be a good idea to contact one of the domestic violence resource centers in your area to get help, support, and advice on how to stay safe. They can help you develop a safety plan and help connect you with the resources you need. For safety planning help, ideas, and information, go to our Staying Safe page. You will find a list of Louisiana resources on our LA State and Local Programs page under the Where to Find Help tab at the top of this page.

If you were not granted a protective order because your relationship with the abuser does not qualify as a “family or household member” or “dating partner” you may be able to seek protection through an injunction against abuse, also known as a “generic” restraining order. You will find more information about this process in the Injunction Against Abuse section of this page.

You may also be able to reapply for a protective order if a new incident of domestic abuse occurs after you are denied the order.

If you believe the judge made an error of law, you can talk to someone at a domestic violence organization or a lawyer about the possibility of an appeal. Generally, appeals are complicated and you will most likely need the help of a lawyer. See our Filing Appeals page for basic information on appeals.

 

What can I do if the abuser violates the order?

There may be various ways to deal with a violation:

Through the Police or Sheriff (Criminal): If the abuser violates the protective order, you can call 911 immediately.  Tell the officers you have a TRO or a protective order and the defendant is violating it.  If the defendant is arrested, and found guilty of a violation, the defendant can be forced to pay a fine and/or go to jail.

Make sure a police report is filled out, even if no arrest is made.  (If no arrest is made, you may still be able to file a criminal complaint against the abuser.) If you have legal documentation of all violations of the order, it may help you have the order extended or modified. It is a good idea to write down the name of the responding officer(s) and their badge number in case you want to follow up on your case.

Through the Civil Court System (Civil): You may file for civil contempt for a violation of the order. The abuser can be held in “civil contempt” if s/he does anything that your protective order orders him/her not to do.*

* See LA R.S. 46:2137

 

How do I change or extend my protective order?

If you wish to change the terms of the order, a “Request to Modify” can be filed.  A judge can modify a protective order to exclude any item included in the prior order, or to include any item that could have been included in the prior order.*

If you want to extend your protective order, you must apply for an extension (a motion to modify the order) before your original order expires.  A judge can extend an order in the judge’s discretion.  The abuser may file to modify the indefinite term of the protective over (if your order has an indefinite term) – if so, you should be notified of this hearing.**

* LA R.S. 46:2136(D)(1)
** LA R.S. 46:2136(F)(1),(2)(c)

 

What happens if I move?

If you move within Louisiana, your order will still be valid and good.  It is a good idea to call the clerk to change your address.  Read more about this on our Moving with a Protective Order page.

Additionally, the federal law provides what is called “Full Faith and Credit,” which means that once you have a criminal or civil protection order, it follows you wherever you go, including U.S. Territories and tribal lands.  If you are moving to a new state, you may want to call the National Center on Protection Orders and Full Faith & Credit (1-800-903-0111 x 2) for information on enforcing your order in another state.

 

1. What is a protection order?

Protective order, restraining order, injunction against abuse, peace bond, or criminal order of protection–these are all terms used generally to refer to court orders that require one person to stay away from another person. The intention of such orders is to prevent abuse and enhance safety for the person who is seeking the court’s protection. These orders may be issued by a civil court, a juvenile court, a family court, or a criminal court.

Although anyone can ask the court to issue an order restraining someone else in order to prevent behavior that is potentially harmful, only those orders issued to prevent domestic abuse or dating violence are included in the Louisiana Protective Order Registry. La. R.S. 46:2136.2 describes as appropriate for inclusion in the Registry an order “issued for the purpose of preventing violent or threatening acts or harassment against, contact or communication with, or physical proximity to, another person to prevent domestic abuse or dating violence.” (Emphasis added)

The terms for court orders of protection are often used interchangeably, but there are some distinctions.

  • Temporary Restraining Orders (TROs). This term refers to an order that is issued in response to a petition to the court for protection and prior to a hearing by the court. It is also called an ex parte order. Temporary orders generally expire on the date of the hearing.
  • Protective Orders (POs). Although all orders granting protection are frequently referred to as protective orders, more specifically, a protective order is an order that is granted under Louisiana’s Domestic Abuse Assistance Act, under the Protection from Dating Violence Act, or under the Children’s Code Domestic Abuse Assistance Act, after the court hearing.
  • Injunctions Against Abuse. An injunction is also a kind of order of protection, and refers to an order issued after a hearing under the Post-Separation Family Violence Relief Act and Code of Civil Procedure Articles, or in conjunction with a divorce proceeding. A Preliminary Injunction is a court order issued after a court hearing and a Permanent Injunction is a court order issued after a trial on the merits.
  • Peace Bonds. Some court jurisdictions still issue peace bonds as a form of protection. Not all peace bonds are issued in response to domestic violence situations, but only those issued in domestic abuse or dating violence situations are included in the LPOR. An applicant for a peace bond shall file an affidavit charging that the defendant has threatened or is about to commit a specified breach of the peace. If the magistrate is satisfied that there is just cause to fear that the defendant is about to commit the threatened offense, s/he shall issue a summons ordering the defendant to appear before her/him at a specified time and date. When a defendant appears before the magistrate, a contradictory hearing to determine the validity of the complaint shall be held immediately either in chambers or in open court. If the magistrate determines that there is just cause to fear that the defendant is about to commit a specified breach of the peace, s/he may order the defendant to give a peace bond.
  • Criminal Orders of Protection. A criminal court may issue an abuse prevention order in conjunction with a criminal charge brought before that court. When the defendant charged with a crime is ordered to stay away from the victim, this order is referred to as a criminal order of protection. Depending upon the stage in the court process at which this order is issued, the order may contain conditions of release, bail restrictions, sentencing orders, or probation conditions. Not all criminal orders of protection are sent to the Louisiana Protective Order Registry, only those involving a domestic or dating relationship between the parties.

Louisiana has 11 statutes and articles under which a person can ask the court for an order that protects them by restraining someone else’s behavior. The circumstances under which protection may be granted, the type of protective measures available, the length or duration of the protection and the type of punishment for violation of the order all vary according to law.

Many orders include the opportunity to address property use, custody of children, and financial matters, when relevant to the petitioner’s safety. For some types of orders, a person seeking protection can initiate the action by filing a petition on her/his own behalf. For other types of orders, an attorney is needed to initiate the request to the court for protection. Criminal orders of protection are usually initiated by the prosecutor or the judge, but sometimes are issued at the request of the victim.

Louisiana law requires judges to ensure that orders designed to prevent domestic abuse or dating violence are issued on LPOR forms and sent to the clerk of court’s office. Clerks of court are required by Louisiana law to transmit such orders to the registry.

For a more detailed listing and summary of the various laws governing court-ordered protection from domestic abuse and dating violence, see Section 7 of this manual for the“Quick Reference: Louisiana’s Domestic Violence Statutes and Forms 2010.”

2. Why do women seek orders of protection?

Several studies indicate that most women who seek such orders do so not as an early intervention strategy, but rather as an act of desperation following an extensive period of abuse. Almost one quarter of the women surveyed in one multi-city study had experienced abuse for five years prior to seeking a protection order.

3. Is it just a piece of paper?

According to the research, while most abusers do violate protective orders in some way, these orders generally deter repeated incidents of physical abuse. In 40% of the cases surveyed in one study, there were no reported violations in the year after the order was issued. However, in 60% of these cases, violations were reported in that same period. In 29% of the cases in which a violation occurred, the victim indicated that the violation involved one or more acts of severe violence.

4. Do protection orders work in other ways?

Even in those cases in which an order is violated, it provides other benefits. As an official legal intervention, such orders send a strong message to the victim, the abuser and the community that the court takes violence against an intimate partner or family member seriously and considers it in the best interests of society to intervene to protect the victim and children, while holding the abuser accountable. In addition, orders of protection can provide material resources that the victim needs to remain safe, such as use of the family home to the exclusion of the abuser, interim financial support, or the use of a vehicle. In many instances, the existence of an order expedites and enhances law enforcement response to a call for help. Protection orders can also aid the victim in her effort to enlist the support of friends and family, her employer, her landlord, and school officials. Most women who seek protection orders report feeling safer and experiencing improved self-esteem, as a result of having taken action to stop the violence and protect themselves and their children. Lastly, protection orders create a record of the abuse which may be considered in other matters that come before the court, such as determining permanent custody and visitation arrangements, or the disposition of a criminal case.

5. What makes an order of protection work?

First, the order should clearly spell out the relief provided to the victim and the consequences for any violation. Numerous studies have demonstrated that the more specific and detailed the order, the greater the likelihood that it will be enforced by police. Equally as important as the order itself, is the opportunity provided during the protection order process to assist the victim in developing a safety plan and to connect her to community resources that offer additional services. This requires coordination between the court and those community agencies that assist victims of domestic violence. Even if the order is specific and detailed, and there is coordination among all who play a role in assisting victims and their children, the primary measure of an order’s effectiveness is swift and decisive enforcement of its terms and conditions.

6. Why don’t victims follow through in obtaining a protective order after they receive an ex parte (temporary) restraining order?

There is a perception that victims who file protective order petitions frequently do not follow through to obtain the order after being granted an ex parte temporary restraining order. In fact, each year thousands of protective orders are granted to victims who do follow through. There are a number of reasons a victim may not appear for the contradictory hearing at which the TRO would be converted to a protective order if the court makes a finding that the defendant poses a credible threat to the victim. For example, if the abuse abated after she obtained the temporary order, she may believe it is not necessary to pursue the protective order. It is more likely, though, that she does not follow through after obtaining the temporary order for one of the following reasons: The abuser’s threats and violence increased after her initial petition and she is too frightened to follow through with the process to obtain the protective order; her abuser has threatened to retaliate against her if she follows through; she is not aware of how the process works and believes that the temporary order she received is the protective order; or she is intimidated by the court system and is too afraid to return for the contradictory hearing. Studies have shown that a victim’s likelihood of following through to obtain the protective order is in direct proportion to the quality of information and assistance she received at the time she applied for the initial order.

7. Is the court doing all that it should to aid the victim?

The following questions should be answered by every court to determine whether it is doing all that it should to aid the victim:

  • How easily can a victim obtain a temporary restraining order?
  • Does the court have a procedure that allows the victim to obtain an ex parte order during non-business hours, on weekends and holidays?
  • During court proceedings, is there a safe place (i.e., one where her abuser does not have access to her) where she can wait for the case to be called?
  • If she fears retaliation by her abuser upon entering and/or leaving the courthouse, will a law enforcement officer be available to escort her?
  • Does the court prohibit the use of mediation in cases where there is a threat to harm or a prior history of abuse by the defendant?
  • Is the victim given adequate information and assistance to utilize the court’s resources?
  • Does the court adequately explain the order process and its procedures to minimize the victim’s discomfort and fear?
  • If a victim has previously sought an order of protection and did not at that time follow through, is any subsequent request for assistance refused?

8. What’s wrong with issuing mutual restraining orders?

In a 2001 La. Supreme Court opinion (Bays v. Bays, 779 So.2d 754), the court found that a protective order under the state domestic violence statutes may not issue without the filing of a petition. In other words, mutual or reciprocal orders of protection should not be issued, except in those instances where each of the parties has formally petitioned the court for relief and there is a finding that each poses a credible threat to the safety of the other. Furthermore, mutual or reciprocal orders of protection undermine the victim’s safety, place her at risk of additional violence, and create confusion for the officials who are expected to enforce the orders. A victim who petitions the court for a restraining order, then finds herself the subject of a mutual or reciprocal order when no counter petition has been filed, will lose faith in the justice system.

9. Can a victim “violate” or “nullify” an order of protection if she agrees to speak to or meet with the defendant during the period of the order?

It is a common misconception that if the victim agrees to speak to or meet with her abuser during the period of the order, that she has violated the terms and conditions of the order, thereby nullifying it. The order, unless it is a mutual order obtained in the legal manner described above, does not address or proscribe behavior on the victim’s part. If the abuser, who is the subject of the order, is invited by the victim to engage in behavior that is prohibited by the court, only he can be held accountable. The order remains in effect unless and until the court convenes a contradictory hearing and makes a different finding. It is also important to be aware that abusers frequently claim that they are in the victim’s presence (and in violation of the order) at her invitation, when this is not the case.

10. How are orders of protection enforced?

Violation of a protective order can be addressed through both civil and criminal action. In civil court, the defendant who violates a protective order can be ruled back into court on an allegation of contempt of court. In addition, violation of certain orders of protection is a crime in Louisiana and the defendant can be arrested for the violation (see La. R.S. 14:79. Violation of protective orders). If found guilty, he can be incarcerated and/or fined.

11. What works best to ensure that orders are enforced?

Creating a seamless network among the courts, law enforcement officials, prosecutors, legal service providers and victim advocates is the most effective way to ensure that orders of protection are enforced. This requires ongoing communication, a shared belief that violence against an intimate partner or family member is a serious matter and not to be tolerated, a commitment to protect the victim, and a willingness to create consequences for the abuser.

The Louisiana Protective Order Registry is a project of the Office of the Judicial Administrator, Supreme Court of Louisiana