A Comprehensive Guide to Domestic Violence Protective Orders in Kentucky
Whether you're in a dangerous situation and feel like you need protection, or you've just been served with a petition and are wondering how the system works, one thing is always for certain: knowledge is power. Here is Skeens Law's Comprehensive Guide to Domestic Violence Protective Orders in Kentucky.
Part One: Terms
Before we get into the system itself, it's important that you know some basic definitions and acronyms. They will be important to know later. EPO: Emergency Protective Order DVO: Domestic Violence Order IPO: Interpersonal Protective Order
E-IPO: Emergency Interpersonal Protective Order
Standard of proof: How convincing the proof must be to win.
Petition: The document that must be filed to begin a case.
Petitioner: The person who filed for the protective order.
Respondent: The person against whom the protective order is sought.
Part Two: Can I file?
Whether or not you are entitled to file for a protective order (and what kind of order you need to file for) is determined first and foremost by your relationship to the person against whom you wish to file. Below you will find the statutory relationship requirements for each type of protective order in Kentucky.
Emergency Protective Order / Domestic Violence Order
Can be filed by a victim of domestic violence or by an adult on behalf of a minor child who is a victim. Victim must be a family member (spouse, former spouse, grandparent, grandchild, parent, child, stepchild or any other person living in the same household if the victim is a child), or an unmarried couple with children or who live together.
Emergency Interpersonal Protective Order / Interpersonal Protective Order
Can be filed by a victim of dating violence and abuse, a victim of stalking, a victim of sexual assault, or by an adult filing on behalf of a minor child who would otherwise qualify under those terms.
Where Should I File?
Petitions for either EPO/DVOs or E-IPO/IPOs can be filed in one of two places by state law:
1) The county where the victim resides;
2) The county where the victim has fled to escape violence.
Part Three: The Petition
Petitioner: If you're thinking of trying to obtain a protective order in Kentucky, filing a petition for protection will be your first step. Please note: this is not a criminal action. Violation of any protective order is a crime, but asking the court to enter an order or having an order entered against you is a civil matter.
The good news is, there are many ways to go about filing a Petition for protection in Kentucky. Maybe the police have been called because there has been violence in your home; officers are trained to deal with domestic violence situations and should (notice I said *should*) offer you the opportunity to fill out a petition on the scene. If an officer does not offer you this opportunity, you should ask for it. If you are not currently in an immediate emergency situation, or you don't feel comfortable calling the police, you can also fill out and file a petition at any of the following locations: -your local Domestic Violence Intake Center (contact your local circuit clerk to check for availability in your area).
-your local Domestic Violence Victims Advocate Office.
-your local County Attorney's Office.
-your local Police or Sheriff's Department.
-an attorney, either public or private, who practices family law.
A Petition will ask you for some basic information about yourself and the person against whom you are seeking protection. You will also be asked to briefly describe the incident or incidents that make you feel like you need protection from this person. While I always encourage my clients to be thorough and complete while writing this narrative, it's also not cause for concern if you don't write down every single incident or detail. You can supplement this filing later. Just be as complete as you possibly can under the circumstances. Include your children in the Petition, and make sure to check the boxes to request temporary custody and child support. When you finish filling out your Petition, the officer on scene or the worker on site should submit it to a 24 hour on-call judge who will review the Petition as quickly as possible and either grant the Petition, or deny it. The standard of proof at this stage of the process is pretty low. Generally, if there is any indication that the person filing for the order might require protection, then the Petition will be granted and a court date set. If the Petition is granted, you now have an EPO (read Part Four).
Respondent: If you've had a Petition filed against you, you've likely received the Petition in the mail or through sheriff service already. It will include a Summons, which is signed by a judge, notifying you of the allegations against you, the individual who has filed against you, any other individuals who may be named as additional protected parties, when you need to be in court, and where the courtroom is located. Be aware: if you have received this petition, you already have an EPO against you. This means that a 24 hour on-call judge has read the allegations in the Petition and has entered an emergency order protecting the Petitioner from you. The specifics of the order will be in the paperwork you receive, but they are normally that you are to remain 500 feet away from the Petitioner, and are not to have any contact with the Petitioner, even through a third party while the order is in effect. It usually also orders you not to damage or sell or give away any personal property of the Petitioner. It's very important that you follow this Order absolutely.
As the Respondent, you do have rights under these circumstances. You are entitled to 72 hours notice of the hearing date by law. Therefore, if you are served with the Petition fewer than 72 hours before the scheduled hearing date, you can request that the judge continue your hearing for two weeks so that you may contact an attorney and prepare for the hearing. Yes. You do need an attorney. You are also entitled to be served with the Petition and emergency order before any further orders can be entered against you. If you have not yet been served, but know that a Petition has been taken out against you, avoiding service is not a good idea. They will find you eventually and it's going to be much better for you to present your case than to try to avoid any consequences. Bottom line: if you've been served with a petition and emergency order of protection, you should contact an attorney as quickly as possible. Don't put it off. These hearings happen very quickly and an adverse result can come with serious consequences (read below). Every second counts.
Part Four: The EPO
Petitioner: Once a judge has reviewed your Petition and granted it, they will issue an Emergency Order of Protection (EPO) or an Emergency Interpersonal Protective Order (E-IPO), depending on the alleged relationship between the parties (see above). This order puts restrictions on the Respondent by requiring that they stay 500 feet away from the Petitioner or the Petitioner's home and place of work. It also orders the Respondent not to have any contact with the Petitioner, whether it's by phone, text, letter, email, or any other method of contact. It also prevents the Respondent from destroying or damaging any of the Petitioner's property. The emergency order is good for 6 months, or until a judge rules differently. The clerk or employee who assists you in filing the emergency order will send your petition directly to the 24-hour on-call judge, who will review it to determine if the allegations in the petition warrant the entry of an emergency order. Their ruling on the matter should happen quickly (within a couple hours) and the completed emergency order should be given to you as soon as it is signed by the judge. The petition will then be set for a court hearing within 14 days of filing and the petition, summons, and order will all be sent to the Respondent via mail or sheriff service. This hearing is used to determine if the emergency order needs to be expanded into a more permanent order (Domestic Violence Order or Interpersonal Protective Order, see below). Your address will be blacked out on the copy given to the Respondent so they cannot use the court filings to determine where you are. It's important to note that the requirements of the emergency order (and, in fact, the more permanent order, should one be granted) apply fully to the Respondent and not to you. For instance, if you have an active EPO against Steve and you see him at the grocery store while you are shopping, it is incumbent upon Steve to leave the premises to be in compliance with the order. You do not have to leave. The order does not apply to you, only to Steve.
If the Respondent violates the terms of the order (meaning they try to contact you even though they've been ordered not to, they come within 500 feet of you or your home or your place of business) then it is important that you notify law enforcement immediately. Violation of a protective order is a crime in Kentucky, and comes with its own criminal charge. The consequence is immediate arrest and prosecution. Do not let anyone violate a protective order without notifying authorities! Even if you feel that the authorities aren't doing anything about it, notifying the police will create a paper trail that can be used in court.
Respondent: Once you have received a petition, summons, and Order of Emergency Protection in the mail or by Sheriff service, it is your responsibility to follow the mandates of the Court's order. The order will likely require that you not have any contact with the Petitioner, whether it's via phone, text, email, or any other method of communication. You are also likely required to stay more than 500 feet away from the Petitioner at all times and 500 feet away from Petitioner's home and place of business. This could possibly be difficult because you may live or work with the Petitioner, but it is important that you follow the order no matter what. If you violate the terms of the protective order then you can be criminally charged and your chances of winning at your court date drop significantly. The best thing you can do once you've been served is to contact an attorney who handles domestic violence cases and make arrangements to follow the order. It is your responsibility to ensure your adherence to the court's order. No excuses. If you are out in public and you see the Petitioner, it is your responsibility to stay 500 feet away from them. Even if you did not intend to violate the order, you can still be criminally prosecuted so DO NOT mess around with this. Additionally, the sooner you retain an attorney the better chance you have of putting on an effective defense at your court date, which is mandated by law to be scheduled within 14 days of filing the Petition. The sooner your attorney can begin working on your defense, the better chance you have of winning in court.
Part Five: The Hearing
Upon filing a Petition for Protection (whether it's an EPO or an E-IPO), a court date will be scheduled within 14 days. This hearing is to determine whether the emergency order that has already been granted warrants conversion into a more permanent order (either a DVO or an IPO). These permanent orders can be entered for up to 3 years and come with many of the same restrictions that the emergency order does, but can be limited to "no violent contact" restrictions only (meaning that the Respondent will still have freedom to contact the Petitioner and be around the Petitioner, but is prohibited from further acts of violence and any acts or threats of violence would come with the added repercussions of violating the order). Entry of a more permanent order also requires (by federal law) that the Respondent immediately surrender any firearms or ammunition and makes it illegal for the Respondent to own, possess, or attempt to own or possess any firearms or ammunition for the duration of the order. It is very important that both parties have an attorney for this hearing.
Petitioner: Your hearing will require that you provide the court with testimony to bolster the allegations in your petition. This is why it's so important to retain a qualified domestic violence attorney to represent you at your hearing. As a Petitioner, you likely have a greater chance of receiving free legal services from your local legal aid office, no matter what your income. It never hurts to try and it's very important that you have an attorney. So get one! Domestic violence hearings operate much like mini trials. The judge will ask each side to provide testimony and evidence, and each side's counsel will have the opportunity to cross-examine. Each attorney will also have the opportunity to provide the court with a closing argument. In order to successfully make the case for a more permanent protective order, your attorney will be trying to prove two things:
1) Domestic violence has occurred; 2) It might occur again unless the court issues an order. Oftentimes it is easy to prove that domestic violence has occurred. If you have pictures of physical injuries or text messages that show threats of violence or abusive behavior, these can be entered as evidence. If you don't have this sort of physical evidence, that doesn't necessarily mean that you will lose your case. Your testimony is evidence and the judge will listen to what you have to say. You will be placed under oath during the hearing and it is important that your testimony be 100% accurate and truthful. Entry of an order can be based on testimony alone, but this is one of many reasons why it is important to have an experienced domestic violence attorney on your side during the hearing. An attorney knows what the most important facts are going to be, and can help you frame your testimony to the judge to emphasize these facts, without concentrating too much on things that may be important, but are not going to help you win. Your attorney is also going to help you when the Respondent testifies, by poking holes in the Respondent's testimony in an effort to discredit them.
What's often more difficult is proving the second prong: that domestic violence might happen again without an order. It's very difficult to prove that something that hasn't happened yet will, in fact, happen. This is where you will be thankful that you hired an experienced domestic violence attorney.
Remember, the judge does not have to believe one side beyond a reasonable doubt in order to enter an order, the judge only needs to decide which party they believe more than the other. If the judge believes the Respondent is more credible, then the judge may dismiss the emergency order and the petition. If the judge finds you more credible, then the judge can enter a more permanent order to keep you safe for a long period of time. This makes an attorney very important for this hearing.
Respondent: You definitely need an experienced qualified domestic violence attorney for this hearing. Losing at this hearing may result in a 3-year protective order being entered against you, which affects where you can go and whom you can contact. A loss at this hearing will also come with federal restrictions on your right to own or possess a firearm or ammunition. To make matters worse, if you have children with the Petitioner, entry of a more permanent protective order against you will result in forfeiture of your state right to a presumption of joint custody and equal timeshare. Let me say this again: you need an attorney. If you have a domestic violence hearing scheduled, call an attorney immediately. Do not delay.
Part Six: The More Permanent Order
If, after a hearing, the judge determines that there is sufficient evidence to provide long-term protection, the court may enter a DVO or an IPO (depending on the relationship between the parties). I refer to this as the "more permanent order" because it can be entered for a long time (up to 3 years) but it can also be renewed at the request of the Petitioner, as long as they request to do so before it expires. No new actions of violence or threats of violence have to have occurred since the entry of the order in order for the court to renew it. In that way, it can theoretically exist forever, as long as the Petitioner continues to renew it before it expires and assuming that the judge approves that request. It's not technically a permanent order, but it's more permanent than the emergency order.
Petitioner: Once the judge has approved your petition for a more permanent order, the Court will complete the physical order and either give it to you on the same day as your hearing while you're in court, or mail it to you at your home address. Make sure you keep a copy of this order with you at all times. If there is ever a situation where the Respondent is violating the order, you want it close by to show the Police. I always tell my clients to keep a copy at home, a copy at work, a copy in the glovebox of their car, and a copy in their wallet or purse. If you have children who have been named on the order, make sure that you give a copy of the order to the child's school or daycare. You may also want to give a copy to your boss or supervisor, so that they can have a copy on-hand in case of a violation while you're on the clock. In the event of a violation of the Order, the police are your first contact, and your lawyer is your second.
Respondent: If a more permanent order has been entered against you then it takes effect immediately. You are responsible for following the terms of the order and you must do so or face criminal consequences. If you went to your hearing without an attorney then it is important that you contact a lawyer as soon as the order is entered against you. You may still have recourse to have the order overturned, but it's important that your lawyer act quickly. Otherwise, make certain that you are always in compliance with the order and do not violate it or you run the risk of facing criminal prosecution.
Part Seven: The Best Advice I Can Give
No matter if you are a Petitioner or a Respondent, you absolutely need an attorney's assistance with a domestic violence claim. These cases were originally designed to be simple enough to do without counsel, but the state legislature has added legal barriers and consequences in recent years that make it extremely important that you retain an attorney as quickly as possible to make sure that your rights are protected and to give you the best chance of success. These cases can have repercussions on your divorce or custody case, as well as current or future employment prospects, so it's important that you take it seriously.
CALL SKEENS LAW TODAY FOR YOUR FREE CONSULTATION ON ANY DOMESTIC VIOLENCE ISSUE -- (502) 403-2394