## Facts

- David O. Hicks, Sr. and Teresa L. Hicks married in 1982, separated in December 1997, and litigated custody of three minor children.
- An initial agreement contemplated joint custody with split primary domiciles: the oldest child primarily with David and the two younger children primarily with Teresa.
- Teresa relocated with the two younger children first to Indiana and then to Canada; David sought custody of all three children, alleging the need for stability and continuity for schooling in Vernon Parish.
- Teresa sought a restraining order and custody of all three children, alleging domestic violence.
- At trial, Teresa testified to repeated physical violence during the marriage, including violence during pregnancy, and to repeated forced sexual intercourse.
- David did not refute key allegations and admitted hitting Teresa and engaging in other violent conduct.
- The trial court found David had been abusive but awarded joint custody, with the children residing primarily with David during the school year and with Teresa during the summer.

## Issues

1. Whether the trial court committed legal error by failing to apply Louisiana’s Post-Separation Family Violence Relief Act, particularly La. R.S. 9:364, after finding unrefuted evidence of family violence.
2. Whether, under La. R.S. 9:364, the court could award an abusive parent joint custody and primary school-year residency absent proof sufficient to rebut the statutory presumption.

## Decision

- The court of appeal held the trial court committed legal error by not applying the Post-Separation Family Violence Relief Act after evidence established a history of family violence.
- The court reversed the award of joint custody and the school-year primary residency award to David.
- The court rendered judgment awarding custody of all three children to Teresa.
- The court ordered David’s visitation to be supervised until he satisfied the statutory requirements of the Act.

## Legal Principles

- Under La. R.S. 9:364, a parent’s history of committing family violence creates a presumption that awarding that parent sole or joint custody is detrimental to the child.
- The presumption bars an award of sole or joint custody to the abusive parent unless the abusive parent satisfies statutory conditions, including successful completion of a treatment program and a showing that custody or visitation is in the child’s best interest.
- Family violence under the Act must be proven by a preponderance of the evidence; a court may not require corroboration or impose a higher evidentiary burden than the statute requires.
- Failure to apply La. R.S. 9:364 when its triggering conditions are met is reversible legal error, permitting the appellate court to render the judgment required under the correct legal standard, including restricting visitation to supervised contact pending statutory compliance.

## Conclusion

Because unrefuted evidence established a history of family violence and the statutory presumption against custody to the abusive parent was not rebutted, the appellate court reversed the joint-custody judgment, awarded the mother sole custody, and limited the father to supervised visitation until he met the Act’s requirements.


Hicks v. Hicks, 733 So. 2d 1261 (La. Ct. App. 3d Cir. 1999)