If you or your children are the victims of violence or have been threatened with violence, you need protection. A restraining order may be the protection you need. But do you know how to get a restraining order in Louisiana?
To start the process, you need to file a petition for a restraining order with the court. There are no costs or filing fees for filing the petition. You can get a copy of the forms here.
Restraining orders provide protection and deter an offender from attempting to contact you. In Louisiana, there is a lot to know about restraining orders, but the process of applying for one is simple.
A restraining order is a particular type of protective order; it is a temporary civil court order of protection. It prohibits someone from carrying out a particular action, like approaching or contacting a specific person.
They are often needed when couples separate, divorce, or are in fear for their safety. Louisiana statutes outline situations eligible for requesting restraining orders:
Types of protective orders
A restraining order, temporary restraining order, and protective order are terms often used interchangeably; however, in Louisiana, they each have a distinct legal meaning. The following is an explanation of these terms:
Emergency Temporary Restraining Orders: An emergency temporary restraining order is filed during an emergency and outside regular court hours. If the court grants an emergency temporary restraining order, it provides immediate protection from an abuser. You must go to court and request a temporary restraining order or a protective order on the next business day because the temporary emergency order expires.
Temporary Restraining Orders: You can request a temporary restraining order in conjunction with a long-term protective order. The court can issue a TRO without the abuser present; however, the abuser will be notified of the rule against him, and a date for a hearing will be set. SeeRS 46:2135
Long-term Protective Orders: After a hearing, a court can issue a protective order that lasts up to 18 months unless otherwise stated. However, some parts of the order last indefinitely, specifically the section saying 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 the petition was filed.”
Who can file for a restraining order?
Anyone can request that a court issue an order restraining a person from activities of potentially harmful behavior, but only those orders issued to prevent domestic abuse, dating violence, or stalking are included in the Louisiana Protective Order Registry.
The following persons are eligible to file an order of protection under the Louisiana Protective Order Registry:
Domestic Abuse Assistance Act
The domestic abuse assistance act, as defined by L.A. R.S. 46:2131, outlines the parameters for filing a request for a protective order against a family member.
To be eligible to file under the domestic abuse assistance act, the petitioner must meet specific requirements. Specifically, the relationship between the abuser and the person requesting protection must be one of the following:
Family members can file: Family members are defined as spouses, former spouses, parent/child, stepparent/stepchild, grandparent/grandchild. An abuser could also be a household member.
Household members can file: Household members are persons who currently or formerly lived in the same residence with the abuser and who is involved or has been involved in a sexual or intimate relationship with the abuser.
The parent, or an adult household member, or district attorney on behalf of a minor child or an adult deemed incompetent.
Protection from Dating Violence Act
The protection from dating violence act is codified in LA. R.S. 46:2151 and extends the same protections as the Domestic Abuse Assistance Act to dating partners. Dating partners do not have to have lived together to be eligible.
Protection from Stalking Act
A protective order can be filed by a person who’s being stalked by a stranger or acquaintance under La. R.S. 46:2171, et seq.
Protection for Victims of Sexual Assault Act
Under La. R.S. 46:2181, a person who has been sexually assaulted by a stranger or acquaintance can file a petition for a protective order.
How to get a restraining order
To get a restraining order, you can contact an attorney, law enforcement, call an abuse hotline, go to the courthouse, or call 911 if you are in immediate danger.
If you go to the sheriff’s office or the courthouse, they will provide you with forms to fill out to request the restraining order. Once this is done, arrangements are made for you to speak with a judge so you can explain your circumstances.
If the judge grants the temporary restraining order, a hearing will usually be set within two weeks. Make sure you show up for the court date. During the trial, the judge will decide the duration the permanent restraining order will be in effect, and if you have children, he will address any existing child custody arrangements.
Domestic violence during child custody is taken very seriously by the courts. The child custody order may be temporarily adjusted and re-evaluated after conditions set by the court have been met, and the restraining order is removed.
Where is it proper to file for a protective order?
You can file a petition for a protective order in the parish you lived with your abuser, where you live or the parish where your abuser lives. You can file in the parish the abuse occurred, or if divorce has been filed, the petition can be submitted in that parish.
What to do if the abuser violates the protective order?
The best thing to do when a person violates a protective order is to call 911 and inform the authorities of the violation immediately. If the police do not arrest him, be sure a police report is filled out. You need to document all the information about the occurrence, the name of the officer, the report number, date, and time of the offense.
You can also file a notice of civil contempt with the court for the abuser’s violation of a court order.
IF YOU NEED assistance with A temporary restraining order, CONTACT OUR OFFICE TO GET AN EXPERIENCED ATTORNEY. WE HAVE OFFICES IN HAMMOND AND LIVINGSTON, LOUISIANA.
Your biological child was adopted, and you want to know if the adoption can be reversed. Or maybe you were adopted and are curious if the adoption can be undone. Questions like this are common, so can you undo an adoption in Louisiana?
Yes, in limited situations, adoptions can be reversed in Louisiana. The laws regarding the nullification of adoptions are stringent and are rarely granted.
There are various reasons a person may want to undo an adoption, but once a final order approving the adoption has been entered, it isn’t very easy to reverse. If you formally consented to the adoption, it is almost impossible.
Filing a Petition to Undo an Adoption
In Louisiana, the preferred nomenclature to reverse an adoption is a Motion to Annul Adoption. Courts typically don’t undo an adoption.
Who can petition the Courts to Annul an adoption?
The Child’s Birth Parents – In Louisiana, a child’s biological parents can file a petition to annul an adoption in certain situations. In some states, the adoptive parents can consent to the reversal ofadoption and agree to relinquish parental rights back to the birth parents.
The Child’s Adoptive Parents – The child’s adoptive parents may petition the court to undo an adoption in very limited circumstances.
The Child – There may be reasons a child wants to cut bonds with their adopted family. These usually occur later in life due to failed relations.
Grounds for an annulment of an adoption
A procedural process must be adhered to in the adoption process. If the process was tainted either by fraud or duress, the adoption could be reversed. The most common attack on approval is that the consent of the biological parent was obtained through fraud.
The Louisiana Constitution guarantees that a birth father has the right to develop a relationship with his child; this is established in the following language: “no person may be deprived without due process of law under our state constitution.” The Lousiana Supreme Court established the following rights of unwed fathers in reference to adoptions:
An unmarried father’s right to veto the adoption of his child cannot be terminated or forfeited without notice and a hearing on this issue. If no response to a proper notice is received from the father, or he can’t be found in a reasonable time, the court may terminate his parental rights.
When a birthmother executes an act of surrender of an illegitimate child and identifies the father, he must receive notice of the adoption. He has the right to file an opposition to the adoption.
When the mother names the alleged father, but his whereabouts are unknown, a curator will be appointed and make a diligent effort to locate the father. If the father can’t be found, his parental rights are terminated.
If the mother claims that the birth father is unknown, his rights are terminated after a diligent effort has been made to identify the father.
It’s not too difficult to imagine how fraud could find its way into the process to deprive a father of proper notice of the adoption of his child. For example, a mother could list a fake name as the father of her child on the birth certificate, and the biological father never receives notice of the adoption.
Going through a divorce is tough and can get ugly. There are usually tons of documents filed, especially if alimony and child support are involved. Having sensitive documents in the clerk of courts office raises an issue, are divorce records public in Louisiana?
Yes, most of the documents are part of the public record unless there is a specific reason they should be sealed.
Although most documents are public, there are some steps you can take to limit access to your divorce documents by the public.
What records are public?
There is no federal constitutional provision that gives the public the right to access judicial records and proceedings. However, the United States Supreme Court established that a trial is a public event, and all information is public property. (Check out the case of Craig v. Harney, 67 S.Ct. 1249, (1947) to learn more about open access to records.)
Divorce documents filed with the clerk of court are considered public records. These documents must be kept by the court and are available to the public, meaning any person can inspect, examine, and copy the filings regardless of the purpose.
The reason people don’t regularly access these records is they’re unaware of the process required to retrieve the documents, or they are don’t know the materials are publicly available. And of course, there is the expense; governments do not provide copies for free.
However, governments have made it easier and cheaper than ever to obtain public records. Most documents can be assessed through the clerk of court’s website for a minimal fee. So, for a small fee and a little knowledge, anyone can obtain a copy of your “confidential” divorce documents.
When a court deems records are sensitive and should not be public, they can enter an order to have the records sealed. Individual documents could be sealed or the entire divorce proceedings.
When a record has been sealed, a person must obtain a court order to view the documents. For example, a court may seal divorces that deal with children, domestic violence, or sensitive business information. They might also seal documents that contain false accusations that would be harmful and create undue harm.
Sealing your records
To have your documents sealed, you need to file a motion with the court requesting the records be sealed. In the action, you will need to convey the reasons you believe sealing the documents is necessary.
Just because you file a request, it is not automatic that the court will grant your motion. You need to provide proper reasons before the judge agrees to seal your case. You can’t just claim it will be uncomfortable for you if the record isn’t sealed.
The Louisiana Supreme court took up this issue in the Copelands divorce case. Al Copeland, the founder of Popeyes Fried Chicken, requested his divorce records be sealed from the public. The New Orleans Times-Picayune wanted to see the documents and filed a suit to obtain access.
The district court and court of appeals agreed with the Copelands that the documents should be sealed, but the Supreme Court disagreed. They found that there may be some justification for sealing portions of the proceeding, but a blanket order sealing the entire record was not warranted.
If you file a motion to seal your divorce proceedings, it would be advisable to request specific pages or parts of documents to be redacted and not file a motion to have the entire record sealed.
If you need help with your divorce, contact our office to get an experienced family law attorney. We have offices in Hammond and Livingston, Louisiana.
It’s normal for parents to have demanding situations arise with their children, especially for parents that are no longer together. When a solution can’t be worked out, the courts are available to resolve the matters. An issue that arises often concerns the relocation of children. The facts follow a similar pattern; The parents divorced and have a custody order in place. Everything goes smoothly for a few years, then the custodial parent gets a new job and wants to move with the children. Can they do this legally? Let’s start by looking at whether or not Louisiana’s relocation statute is applicable.
Louisiana’s Relocation Statute can be found in La. R.S. 9:355.1 et seq.
The Relocation Statute applies when one parent (or another person with custody) intends to establish the principal residence of a child at any location outside the state of Louisiana. It also applies when moving the child’s primary residence within the state of Louisiana more than 75 miles from the domicile of the other parent (if there is no custody order in place) or more than 75 miles from the principal residence of the child (if there is a custody order in place).
In our factual situation, the custodial parent is moving to Lake Charles, Louisiana from Albany, Louisiana. We start our evaluation by determining the principal residence of the child. We stated in our facts that a custody order was in place. The relevant portion of the statute states that it applies to moves of more than 75 miles from the principal residence of the child if there is a custody order in place. So how do you determine the principal residence of the child?
La. R.S. 9:355.1 (1) provides: (click here to read statute)
(1) “Principal residence of a child” means:
(a) The location designated by a court to be the primary residence of the child.
(b) In the absence of a court order, the location at which the parties have expressly agreed that the child will primarily reside.
(c) In the absence of a court order or an express agreement, the location, if any, at which the child has spent the majority of time during the prior six months.
We have a court order designating the residence in Albany, Louisiana, so that is the primary residence of the child. Next, we must determine if the move exceeds the number of allowable miles to move a child.
La. R.S. 9:355.2. Applicability (click here to read the statute)
A. This Subpart shall apply to an order regarding custody of or visitation with a child issued:
(1) On or after August 15, 1997.
(2) Before August 15, 1997, if the existing custody order does not expressly govern the relocation of the child.
B. This Subpart shall apply to a proposed relocation when any of the following exist:
(1) There is intent to establish the principal residence of a child at any location outside the state.
(2) There is no court order awarding custody, and there is an intent to establish the principal residence of a child at any location within the state that is at a distance of more than seventy-five miles from the domicile of the other parent.
(3) There is a court order awarding custody, and there is an intent to establish the principal residence of a child at any location within the state that is at a distance of more than seventy-five miles from the principal residence of the child at the time that the most recent custody decree was rendered.
(4) If either no principal residence of a child has been designated by the court or the parties have equal physical custody, and there is an intent to establish the principal residence of a child at any location within the state that is at a distance of more than seventy-five miles from the domicile of a person entitled to object to relocation.
C. To the extent that this Subpart conflicts with an existing custody order, this Subpart shall not apply to the terms of that order that govern relocation.
D. This Subpart shall not apply when either of the following circumstances exists:
(1) The persons required to give notice of and the persons entitled to object to a proposed relocation have entered into an express written agreement for the relocation of the principal residence of the child.
(2) There is in effect an order issued pursuant to Domestic Abuse Assistance, R.S. 46:2131, et seq., Protection from Dating Violence, R.S. 46:2151, Part II of Chapter 28 of Title 46 or the Post-Separation Family Violence Relief Act or Injunctions and Incidental Orders, Parts IV and V of Chapter 1 of Code Title V of Code Book I of Title 9, except R.S. 9:372.1, all of the Louisiana Revised Statutes of 1950, Domestic Abuse Assistance, Chapter 8 of Title XV of the Children’s Code, or any other restraining order, preliminary injunction, permanent injunction, or any protective order prohibiting a person from harming or going near or in the proximity of the other person.
Emphasis is added to D., and this part does not apply if any of the listed circumstances exist.
Is Lake Charles Louisiana more than 75 miles from Albany, Louisiana? Yes. So the Relocation Statute is triggered, and you must abide by this statute before relocating your child. Who can propose relocation is the first question to be answered.
§355.3. Persons authorized to propose relocation of principal residence of a child (click here to read the statute)
The following persons are authorized to propose relocation of the principal residence of a child by complying with the notice requirements of this Subpart:
(1) A person designated in a current court decree as the sole custodian.
(2) A person designated in a current court decree as a domiciliary parent in a joint custody arrangement.
(3) A person sharing equal physical custody under a current court decree.
(4) A person sharing equal parental authority under Chapter 5 of Title VII of Book I of the Louisiana Civil Code.
(5) A person who is the natural tutor of a child born outside of marriage.
In our factual situation, there is a custody order in place, so La.R.S. 3:55.3 applies, so the domiciliary parent has the right to propose relocation. At this point, we have triggered the relocation statute and found that the parent has the right to seek relocation, so what is the next step? Provide information to the other parent.
§355.5. Mailing notice of proposed relocation address (click here to read the statute)
A. Notice of a proposed relocation of the principal residence of a child shall be given by registered or certified mail, return receipt requested, or delivered by commercial courier as defined in R.S. 13:3204(D), to the last known address of the person entitled to notice under R.S. 9:355.4 no later than any of the following:
(1) The sixtieth day before the date of the proposed relocation.
(2) The tenth day after the date that the person proposing relocation knows the information required to be furnished by Subsection B of this Section, if the person did not know and could not reasonably have known the information in sufficient time to provide the sixty-day notice, and it is not reasonably possible to extend the time for relocation of the child.
B. The following information shall be included with the notice of intended relocation of the child:
(1) The current mailing address of the person proposing relocation.
(2) The intended new residence, including the specific physical address, if known.
(3) The intended new mailing address, if not the same.
(4) The home and cellular telephone numbers of the person proposing relocation, if known.
(5) The date of the proposed relocation.
(6) A brief statement of the specific reasons for the proposed relocation of a child.
(7) A proposal for a revised schedule of physical custody or visitation with the child.
(8) A statement that the person entitled to object shall make any objection to the proposed relocation in writing by registered or certified mail, return receipt requested, within thirty days of receipt of the notice and should seek legal advice immediately.
C. A person required to give notice of a proposed relocation shall have a continuing duty to provide the information required by this Section as that information becomes known.
The information must be provided to the other parent by certified or registered mail, return receipt requested or delivered by a commercial carrier to his or her last known address. Providing the information via text messaging or emailing is not sufficient under Louisiana law. This information must be provided to the other parent either by the sixtieth day before the date of the proposed relocation (if you know where you are going, etc.) or the tenth day after the date you know the information. If you know the required information, then you must provide a sixty-days notice. If you do not know that information, and could not have reasonably known that information, then you must provide that notice within ten days of knowing the address, physical location, and phone number. If you fail to give proper notice, you can hurt your chances to relocate your child successfully and may be subject to paying the objecting parents fees
After proper notice of the relocation, the other parent has 30 days to object. If they do not timely object, the requesting parent may relocate the principal residence of the child. If a proper objection is made, the requesting party has 30 days to file a motion to relocate. What is a proper objection made? La. R.S. 9:355.7 requires the parent must object, in writing, sent to your address provided in the notice, via certified mail or commercial carrier.
If the other parent objects relocation and you filed a timely Motion to Relocate the court will schedule a contradictory hearing to rule on the relocation issue. In making the determination, the court will consider if the relocation is made in good faith and is in the best interestof the child.
The factors to determine contested relocation are found in La. R.S. 9:355.14:
§355.14.Factors to determine contested relocation (click here to read the statute).
A. In reaching its decision regarding a proposed relocation, the court shall consider all relevant factors in determining whether relocation is in the best interest of the child, including the following:
(1) The nature, quality, the extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development.
(3) The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s views about the proposed relocation, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.
(6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.
(7) The reasons for each person for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.
(9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.
(10) The feasibility of a relocation by the objecting person.
(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.
B. The court may not consider whether the person seeking relocation of the child may relocate without the child if relocation is denied or whether the person opposing relocation may also relocate if relocation is allowed.
If you have questions about child relocation call Sonja Bradley your child custody and divorce attorney in Hammond Louisiana, Livingston Louisiana, Denham Springs, Louisiana, Walker Louisiana, Ponchatoula, Louisiana, Albany Louisiana, Amite Louisiana and surrounding areas.