Divorce Law Journal

Proposed Amanda Ross Domestic Violence Prevention Act (Kentucky)

Here is the link to the pre-filed bill, BR251, relating to a global positioning monitoring system amendment to Kentucky’s domestic violence statute. It would also permit a petitioner to request that the respondent be prohibited from going to certain designated places requested by the petitioner. Apparently respondents would pay the cost unless unable, in which case approved vendors would bear cost responsibility. The courts would be authorized to conduct a risk assessment to determine whether monitoring would deter future violence.

Kessler v. Switzer, Ky COA, No Hearing Required For Extension of DVO

Kessler v. Switzer, __ S.W.3d __ (Ky. App. 2009); 2008-CA-002083-ME

Switzer filed a motion to extend a domestic violence order (DVO) and attached an affidavit stating that she had filed charges against Kessler for violation of the DVO and that she was still in fear of Kessler. When the matter came before the court, Switzer’s counsel informed the court that the charges had been dismissed. Kessler objected to the court ordering the extension without holding a hearing in which Switzer could testify and be cross-examined. He also objected to the extension on the grounds that there was no legal standard for granting such extensions. The trial court granted the extension and this appeal followed.

The COA affirmed. The statute does not require that a hearing be held or that evidence of additional acts of domestic violence be presented in order for the court to grant an extension of a DVO. The trial court properly considered the facts and circumstances of the case. COA also found that Kessler waived his constitutional claims since he failed to follow the proper procedure pursuant to KRS 418.075.

Judge Caperton’s dissent: The trial court should not have accepted the allegations made in Switzer’s affidavit without the test of cross-examination.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Ruby v. Ruby, Ky COA, Domestic Violence, Recusal,Voluntary Dismissal

Ruby v. Ruby DOMESTIC VIOLENCE HEARINGS AND VOLUNTARY DISMISSAL 2008-CA-000122 PUBLISHED: REVERSING AND REMANDING PANEL: THOMPSON PRESIDING; MOORE CONCURS; HENRY CONCURS IN PART AND DISSENTS IN PART COUNTY: JEFFERSON DATE RENDERED: 1/23/2009

Husband appealed from TC’s entry of DVO, asserting that TC judge should have recused; that it should have granted his request for continuance and his request to obtain Wife’s mental health and prescription records; that his constitutional rights were violated because he was denied assistance of counsel, the right to confront witnesses against him, and to present his own witnesses; and that TC should have vacated DVO pursuant to an agreed order entered by the parties.

FACTS: EPO was issued against Husband after Petition for DVO filed by Wife. DVO hearing was scheduled to occur 11 days later, but Husband requested and was granted over Wife’s objection a continuance and the hearing was rescheduled to occur 15 days later. At the rescheduled hearing, Wife and her attorney appeared but Husband did not. Substitute counsel appeared on Husband’s attorney’s behalf and stated that Husband’s attorney was ill and that court staff informed Husband’s attorney that the hearing was continued. TC learned from staff that they did not inform Husband’s attorney that hearing was continued. TC contacted Husband’s attorney at home and informed him that the hearing would proceed. Substitute counsel moved for TC judge to recuse himself as Husband was an attorney that had practiced in his court. TC judge refused.

Wife testified as to extensive injury inflicted by Husband, and Husband’s substitute counsel was given the opportunity to cross-examine Wife. TC then ordered that it would hear testimony from Husband one week later, but that no other testimony would be heard. At that hearing, Husband testified that argument between Husband and Wife occurred because of Wife’s irrational behavior and that her injuries resulted from her tripping over an open dishwasher door.

One week after Husband’s testimony, TC found that Husband abused Wife and that abuse may occur in future and therefore entered DVO prohibiting contact between parties. Two days later, Husband filed motion to vacate DVO, stating that parties were attempting reconciliation and included Agreed Order in which Husband and Wife requested DVO dismissal. TC denied motion but amended DVO from “no contact” order to “no unlawful contact” order.

Judge Recusal: CA held that recusal is not necessary merely because an attorney has practiced before a judge. Only when a judge would be biased against one party is recusal required.

Continuance of Hearing and Constitutional Issues: KRS 403.740 requires that a DVO hearing be conducted within a limited time. Husband had already been granted one continuance, thus it was not an abuse of discretion for TC to deny second continuance. Regarding Husband’s contention that he was not allowed to present witnesses on his behalf, CA held that TC could have entered its decision based only on evidence presented at initial hearing date, which would not have included Husband’s testimony, and that TC gave Husband more than he was entitled to by granting the additional date for Husband to testify. Regarding his claim that he could not confront witnesses, substitute counsel for Husband did cross-examine Wife though Husband was not present.

Husband also contended that he should have been able to call Witnesses to testify on his behalf and specifically complained that though he subpoenaed Wife’s brother and sister-in-law to appear at the second hearing date, TC judge refused to hold those witnesses in contempt. CA held that language of Kentucky statutes regarding disobedience of a subpoena is permissive and does not require the court to issue contempt citation or warrant to bring witnesses before court. The effect of issuing the citation or warrant would be to grant Husband’s second continuance, and weighing this against the possible relevancy of the testimony in question, TC’s refusal to hold witnesses in contempt was justified. The same reasoning applied to Husband’s complaint that TC should have granted his motion to compel Wife’s medical and psychiatric records; not only was the motion improperly noticed, but granting the motion would have given Husband his second continuance.

Joint Motion to Vacate DVO: Though TC found that domestic violence had occurred and would probably re-occur, parties requested just two days later to have DVO vacated. CA held that while a domestic violence petition is pending, victim can seek dismissal under CR 41. Where DVO has been entered, however, TC has discretion to deny parties’ requests to vacate, after inquiring into the voluntariness of victim’s participation in the request. TC here only asked Wife if she agreed to vacating DVO, to which she responded only “yes.” CA held that TC should have inquired further into circumstances that caused her to enter the agreement and could deny the motion only after making specific findings supporting its denial.

Reversed and remanded.

DISSENT:

TC is in best position to determine whether hearing should be required on Joint Motion to Dismiss. Given that Motion was filed such a short time after DVO entered, there was no abuse of discretion.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

One To Be Published Ky COA Decision January 23, 2009

Ruby V. Ruby, DVO entered but parties then entered into an agreed order dismissing the DVO. Trial court declined to enter agreed order, amending DVO to no unlawful contact instead. Court of Appeals affirmed entry of DVO but remanded to trial court to conduct a hearing on circumstances surrounding agreement to dismiss DVO.

Rivers v. Howell, Ky COA, Domestic Violence

Rivers v. Howell, _ S.W.3d _ (Ky. App. 2008), 2008 WL 5428209

Howell filed a domestic violence petition against Rivers.  The trial court found that Howell had standing to seek a Domestic Violence Order as a member of an “unmarried couple” as defined in KRS 403.720(3).  The parties were involved in a five year relationship.  Although the parties were engaged to be married at one time and stayed at each other’s residences for periods as long as a week, they never did marry and always maintained separate residences.  They each had access to keys to each other’s residence at various times during the relationship.  Howell’s children occasionally stayed with Rivers, but there was no permanent bed for their use. 
The Court of Appeals held that the trial court’s finding was clearly erroneous. Applying the factors set out in Barnett v. Wiley, COA found the parties fell short of the definition of an “unmarried couple.”  The domestic violence statutes do not provide protection to victims in a dating relationship, who are not cohabitating.  

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Rankin v. Criswell, Ky COA, Domestic Violence

Rankin v. Criswell, _ S.W.3d _ (Ky. App. 2008), 2008 WL 5429320

Criswell filed a petition, on behalf of her two minor children, for a domestic violence order against her former husband, Rankin.  Criswell alleged that Rankin sexually abused the parties’ daughter 7 or 8 years ago.  The trial court held a very brief domestic violence hearing, which mainly consisted of the court reading the allegations in the petition aloud and the court silently reading two separate dependency case files pending in the family court.  Neither the petition nor the dependency files were admitted into evidence and the court asked minimal questions of either party.  Neither party was represented by counsel.  The trial court entered a domestic violence order against Rankin, precluding him from having any contact with Criswell or their two minor children.  The court orally stated that the order would remain in effect until the criminal matter was resolved or until the order expired, however, the order stated that it was effective for three years.  
The Court of Appeals found that the trial court failed to conduct a full evidentiary hearing.  There was no testimony or other evidence that supported the petition.  A DVO cannot be granted solely on the basis of the contents of the petition.  At a minimum, Criswell should have been asked by the court whether the allegations in the petition were accurate.  In addition, the rules of evidence apply.  Hearsay contained in the petition cannot be considered as evidence unless an exception applies.  The court also erred in considering the dependency files, which were not in evidence and to which Rankin had no opportunity to examine or refute.  
COA remanded the case for a full evidentiary hearing with instructions for the trial court to question Criswell under oath as to the allegations and to let Rankin have an opportunity to respond.  As to the duration of the order, if one is entered, it is not dependent on the result of a criminal matter.     

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Two 12/31 To Be Published Ky COA Domestic Violence Cases

Rankin v. Criswell, et al, DVO reversed where court read dependency files without informing parties of contents nor admitting them into evidence and only evidence was petition which contained hearsay. Rivers v. Howell, DVO reversed because Howell lacked standing, as she had never lived with Rivers.

Valentine v. Horan, Ky COA, Domestic Violence

Valentine v. Horan, --S.W.3d—(Ky. App. 2008), 2007-CA-002010-ME

Based on events between the parties in 2002, Valentine was convicted of assault in the fourth degree and two counts of sexual abuse in the first degree. Valentine is currently appealing his conviction pursuant to RCr 11.42. As part of his investigation into the evidence associated with his trial, Valentine filed an open records request with the Educational Professional Standards Board concerning Horan. When Horan learned of the request she filed a petition for an EPO. She was afraid Valentine was trying to find personal information about her due to his impending parole and/or expiration of his sentence. She was afraid he would harm her again. The court issued the EPO, as well as a DVO, which prohibited Valentine from gathering information about Horan regarding her address, employment, or personal data and from coming within 1000 feet of her. Valentine appealed.
Based on the criminal convictions for assault and sexual abuse arising from the acts of domestic violence and the higher standard of proof required in criminal matters, the COA found that the evidentiary standards had been met under KRS 403.740 and KRS 403.750. The Court also found that domestic violence may occur again, since Valentine is inquiring about Horan after all these years. Valentine’s arguments regarding failure to receive notice and service of the EPO were moot, since the EPO had expired. DVOs do not have the same notice and service requirement. COA found that the court had complied with the full hearing requirement by holding a hearing with Horan and a separate telephonic hearing with Valentine. AFFIRMED.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Gomez v. Gomez, KY COA, Domestic Violence Jurisdiction

Gomez v. Gomez, __ S.W.3d __ (Ky. App. 2008), 2007-CA-001919-ME, May 9, 2008

Appellee filed a domestic violence petition in district court requesting an emergency protective order against the Appellant. The district court did not issue an emergency protective order, but did issue a summons and set the matter for a hearing. After the family court held a full evidentiary hearing, it issued a domestic violence order. Appellant appealed the order alleging that 1) since the district court failed to issue an emergency protective order, the family court lacked jurisdiction to either hold a hearing or enter a domestic violence order and 2) insufficiency of the evidence. COA found that the family court did have proper jurisdiction. Family courts are the primary forum for matters concerning domestic violence and abuse, although the district courts have concurrent jurisdiction to enter emergency protective orders under KRS 403.725. The Court found no statutory language to support Appellant’s position that district courts retain exclusive jurisdiction unless an emergency protective order is issued. Of special significance in the instant case was the fact that the parties also had a pending divorce action, which gave the family court jurisdiction under KRS 403.725(4) as well. COA also found that the family court’s issuance of the domestic violence order was supported by the evidence and was not clearly erroneous.
AFFIRMED.
Digest by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Meyers v. Hon. Bruce Petrie (KY) DVO Contempt Counseling

Meyers v. Hon. Bruce Petrie, 233 S.W.3d 212 (Ky. App. 2007)

Family court judge held Meyers in contempt for not completing domestic violence counseling, which was ordered by the court. As punishment for this contempt the judge ordered Meyers to attend the same counseling. Meyers argued that because the DVO, under which the counseling had been ordered, had expired the family court lacked jurisdiction to require him to attend the counseling.
CA held that it was not an abuse of discretion for the family court to order Meyers to attend counseling after the DVO had expired. CA reasoned that the family court was not attempting to enforce the DVO after it expired but was exercising its contempt powers. CA opined that “courts of this Commonwealth have inherent powers to punish individuals for contempt.” CA acknowledged that it may be a little unorthodox to order some one to attend counseling as punishment for contempt. However, the court stated that when punishing a contemptuous individual the “punishment should be reasonably related to the nature and seriousness of the party’s contemptuous behavior.” Therefore, sentencing Meyers to attend counseling as punishment for his contempt was appropriate.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

U of A School of Law Dean Shares Her Domestic-Abuse Story

Domestic violence crosses all socio-economic lines. Yet, victims often find it difficult to access help. Beyond the usual "I'm afraid to make him mad" reason for not seeking orders of protection, those who are economically fortunate are burdened with a heightened sense of shame. Thus, we were please to read in the Arkansas Benton County Daily Record that University of Arkansas law school dean Cynthia Nance is sharing her story of domestic violence. The article is online. Maybe sharing her story will save lives.

Standards of Practice for Lawyers Representing Victims of Domestic Violence, Sexual Assault and Stalking in Civil Protection Order Cases

These Standards of Practice (2007) are available online from the American Bar Association, Commission On Domestic Violence. Adopted by the American Bar Association House of Delegates in August 2007, these black letter Standards of Practice are intended to improve the quality of legal representation of victims of domestic violence, sexual assault and stalking; to enable lawyers to effectively, ethically, and holistically represent victims in civil protection order cases; and to raise awareness about the need for high-quality representation for victims of domestic violence, sexual assault and stalking in civil protection order cases. Our hope is that the Standards (and additional commentary) will be integrated into trainings for new and/or pro bono attorneys representing victims in protection order cases and provide guidance for organizations advocating for victims of domestic violence. Download StandardsBlackLetter.pdf

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10 Myths About Custody And Domestic Violence And How To Counter Them

From the American Bar Association, Lawyers who represent victims of domestic violence in custody matters often encounter these common myths. This one-page tip sheet provides facts and recent statistics for use in litigation.Download custody_myths.pdf

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KY Victim Notification Network Expands To Inform Victims Of Court Dates

AOC News: Court information now available to victims through VINE Court Service from Kentucky Law Review. From the press release:

For 12 years the safety of victims and the acronym VINE have gone hand in hand in Kentucky. Now that protection has extended beyond the confines of the jail cell, when offenders are released from custody, and into the courtroom.

The Kentucky Department of Corrections and the Kentucky Court of Justice have collaborated to implement the new VINE Court Service program. The program will allow victims in 17 Kentucky counties to register to be notified about changes in an offender’s status and about upcoming court events in felony cases through the automatic notification system VINE (Victim Information and Notification Everyday).

VINE Court Service went live in the Daviess County pilot site on Sept. 24, 2007, and will be implemented in 16 other Kentucky counties by Oct. 15, 2007. The other counties are Boone, Boyd, Bullitt, Campbell, Christian, Fayette, Franklin, Hardin, Kenton, Laurel, McCracken, Oldham, Pike, Shelby, Spencer and Warren.

“Crime victims shouldn’t have to worry about when their offenders are going to be in court – they deserve every bit of protection we can provide,” said Corrections Commissioner John D. Rees. “This grant has enabled us to enhance our VINE service to take the notification system into the court arena and through this partnership with the Kentucky Court of Justice, crime victims who use this service will have one more layer of protection.”

"This new level of notification will help ensure the safety of crime victims and give them a greater opportunity to participate in Kentucky’s legal process," said Chief Justice Joseph E. Lambert. "This is a positive collaboration with the Department of Corrections that furthers our ongoing efforts to improve public access to state courts."

Victims can register to be notified by e-mail, telephone or both by visiting www.courts.ky.gov or by calling the VINE 800 number at 800-511-1670. Live operator assistance will be available 24/7 in both English and Spanish.

VINE Court Service is funded through a Bureau of Justice Assistance grant the Department of Corrections received to enhance its victims service programs. VINE Court Service will be expanded if additional funding becomes available. In 1996, Kentucky became the first state in the nation to offer automated statewide victim notification. The Department of Corrections contracts with Louisville-based Appriss Inc., developer of the VINE system, to deliver the service.

Can't wait until it expands to Jefferson County. This is a huge improvement. While it is nice for victims to have a "heads up" when the perpurtator is released from jail, it would be so much better to have notice of the court proceeding to have input on whether the inmate ought to be released.

Bissell v. Baumgardner, DVO and Emergency Custody Jurisdiction; Recusal

Bissell v. Baumgardner, ___S.W. 3d ___ (Ky. App. 2007), decided September 21, 2007

Husband appealed a DVO, which awarded temporary custody of the parties’ child to Wife. Husband argued the court did not have personal or subject matter jurisdiction to enter the order. Husband also argued the judge should have recused himself. CA held that the court did have jurisdiction and the judge's failure to recuse himself was not error.
The parties lived in KY but moved to UT. Eventually, they filed for divorce and Wife moved back to KY. While returning the parties’ child to Wife, after weekend visitation, Husband threatened to shoot Wife. Wife filed a domestic violence petition and an EPO was granted. Wife’s stepfather, a former judge, attended the DVO hearing with Wife. Husband requested the judge recuse himself because Wife’s stepfather had contributed to the judge’s campaign. The judge refused to recuse himself and entered a DVO awarding Wife temporary custody of the child. The judge orally stated that the temporary custody order was subject to modification by the UT court. The judge, however, did not include this finding in his written order.
CA held that the TC had both personal and subject matter jurisdiction to enter the order. CA opined that TC had subject matter jurisdiction because KY courts have jurisdiction to enter EPOs and DVOs to anyone who is a resident of KY or has fled to KY to escape domestic violence. CA reasoned that Wife had re-established her KY residency, therefore, the TC had subject matter jurisdiction. CA also opined that the TC had personal jurisdiction because Husband made the threat on Wife’s life in KY. The CA, however, remanded the case and instructed the TC to alter its’ written order to reflect that the temporary custody award was made based on TC’s temporary emergency jurisdiction. Also, the written order should acknowledge that any other custody issues should be addressed by the UT court. Finally, CA held that the TC judge’s refusal to recuse himself was not error. There was no indication from the record that the judge was biased and a judge is not required to recuse himself just because a party or their counsel has made contributions to the judge’s campaign.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates.

Baird v. Baird, Re-Issuance of Domestic Violence Orders

Baird v. Baird, ___S.W.3d__ (Ky. App. 2007)

Ex-Husband appealed from TC’s order reissuing domestic violence order against him, arguing that there was no evidence to support the DVO. Parties’ 34-year marriage culminated in an incident in which Ex-Husband threw Ex-Wife against a shower wall and held a gun to her head. Ex-Wife moved out of marital residence and the parties divorced in 1997. In 1998, a DVO was entered against Ex-Husband after he threatened to kill Ex-Wife and all her co-workers. DVO expired in 2001, at which time Ex-Husband again began following and threatening Ex-Wife. Another DVO was entered in early 2003, to expire in 2006. A few weeks before this DVO expired, Ex-Wife filed a motion to extend it for another three years. TC did so after a brief hearing. Ex-Husband appealed to CA, and CA rendered unpublished opinion in 2006 vacating the DVO and remanding to TC, noting that what appeared to be the sole ground for re-issuance of the DVO was Ex-Wife’s testimony that life had been “much more peaceful” with DVO in place, and that, on remand, TC should give proper consideration to the restrictiveness of a DVO as well as all the facts and circumstances surrounding the case before rendering a decision. TC held second hearing, and again re-issued DVO. Ex-Husband appealed again.
CA held that TCs have authority to reissue DVOs even in the absence of additional acts of domestic violence and abuse during the prior period. However, there must be some showing of a continuing need for the DVO. CA recognized that TC considered history of domestic violence in the parties’ marriage; that Ex-Husband’s conduct after the marriage left in Ex-Wife in fear; that during the time post-marriage when no DVO was in place, Ex-Husband again began to harass Ex-Wife; and that when CA’s last opinion on this matter was rendered, Ex-Husband attempted to retrieve his guns from the Sheriff’s office even before TC received notice that DVO had been vacated. Thus, CA found that there existed sufficient evidence to reissue the DVO.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

Mandatory Arrests For Domestic Violence Offenders Criticized

The Protection Battered Spouses Don’t Need is the title caption of a New York Times Op-Ed piece this week, online here. From the article by Radha Iyenga, a fellow in health policy research at Harvard,

TWO decades ago, in an effort to curb domestic violence, states began passing “mandatory arrest” laws. Police officers responding to a call for help would no longer need to determine whether one person was truly violent or out of control; every time someone reported abuse, the police would simply be required to make an arrest.

It seemed like a good tactic — at least to people who work with victims of domestic violence. (Police officers tended to be less enthusiastic, because they prefer to make arrests at their own discretion.) Arrests would immediately stop the violence and might discourage abusers from further acts of abuse.

But 20 years later, it seems the mandatory arrest laws are having an unintended, deadly side effect. The number of murders committed by intimate partners is now significantly higher in states with mandatory arrest laws than it is in other states.

The opinion piece goes on to say

What the laws did not take into account was that eventually the victims of violence would come to realize that if they called the police, their abuser would certainly be arrested. And over the years, it turns out, that realization seems to have led victims to contact the police less.

I recently conducted my own study of mandatory arrest laws by comparing the rates of murders by intimate partners before and after the laws went into effect. Intimate partner homicides have generally decreased in the past 20 years, perhaps because greater awareness of the problem of domestic violence has led to the creation of more resources for victims. But in states with mandatory arrest laws, the homicides are about 50 percent higher today than they are in states without the laws.

The mandatory arrest laws were intended to impose a cost on abusers. But because of psychological, emotional and financial ties that often keep victims loyal to their abusers, the cost of arrest is easily transferred from abusers to victims. Victims want protection, but they do not always want to see their partners put behind bars.

In some cases, victims may favor an arrest, but fear that their abusers will be quickly released. And many victims may avoid calling the police for fear that they, too, will be arrested for physically defending themselves. The possibility of such “dual arrests” is most worrisome for victims who have children at home.

The situation is different in incidents in which abuse is suffered by people who are not intimate partners — children, for example. The certainty of arrest does nothing to deter the reporting of such cases, usually by teachers, doctors or other third parties. In fact, my research shows that in states with mandatory arrest laws there are fewer murders of non-intimate-partner family members than there are in states without the laws.

Despite two decades of increased public awareness, domestic violence remains a serious problem. Arresting abusers is often desirable, as are efforts to educate the police about domestic violence and effective intervention and to provide treatment and support for victims. But it makes no sense to keep following a strategy that discourages victims from reporting abuse.

I think in any call for reform it is important to distinguish mandatory arrests for violation of an existing order of protection from arrests at the initial call to the police, before an emergency protective order is entered. I firmly believe that arrests for violation of a domestic violence order lessen the lethality risk of intimate partner violence and doubt that the possibility of future arrests discourages victims from initially seeking protection. Time and studies will tell.
Thanks to Janet Langjahr of Florida Divorce Law Blog for pointing out this editorial.

Manning v. Willett

Manning v. Willett, --S.W.3d – (Ky. App. 2007)

Issue and Holding:
Whether the district court erred in entering, sua sponte, an order for a mutual domestic violence order. The Court held yes, as the domestic violence statutes do not provide for mutual domestic violence orders under the factual scenario in the instant case.

Facts:
The parties have a child in common. Two months after the child was born, Charles was arrested for assault fourth degree and two counts of terroristic threatening for choking, beating, and threatening Kimberly. Kimberly also obtained an EPO. Charles pled guilty to the charges. Kimberly failed to appear for the domestic violence hearing and the EPO was dismissed.
Months later, Charles assaulted Kimberly again and was charged with assault fourth degree, terroristic threatening, and criminal mischief third-degree. Kimberly obtained an EPO. At the EPO hearing the judge ordered Charles to have no contact with Kimberly or her family. Charles was also sentenced on the criminal charges.
A couple months later Charles was arrested at Kimberly’ residence and charged with violation of the DVO and terroristic threatening. The police also arrested Kimberly for violating the DVO which she had obtained. Charles pled guilty to violating the DVO, and was sentenced on the new charges. The court dismissed the criminal charges against Kimberly, but then sua sponte entered a DVO for Charles against Kimberly, expressing its frustration with Kimberly inviting Charles over to her residence despite the DVO in place.
Kimberly appealed to the Circuit Court. The court affirmed the decision below relying on KRS 403.750(1) (h). The Court of Appeals granted discretionary review.

Analysis:
KRS 403.735(2) specifically states that a court may issue mutual protective orders only if a separate petition is filed by the respondent. This did not occur in the instant case. Charles never filed a petition and never alleged Kimberly committed acts of violence or abuse. Therefore, the district court erred in entering a DVO against Kimberly and the circuit court erred in affirming the order. The lower courts’ reliance on KRS 403.750(1) (h) and KRS 403.715(2) was misplaced.
The Court noted, with agreement, the complex physical and psychological process many domestic violence victims struggle with, quoting at length from Kimberly’s brief.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Roberts v. Bucci

Roberts v. Bucci

Question: Does the family court have jurisdiction to consider a CR 60.02 motion involving a DVO?

Answer: Yes. By its plain language, CR 60.02 provides an avenue by which a party may seek to be relieved from a “final judgment, order, or proceeding.” Where the issuance of a DVO adjudicates all of the rights of both parties in the proceedings with nothing left for its consideration, the order is final. In fact, in cases where issuance of a DVO adjudicates all rights of the parties, the parties also have the right to appeal. Therefore, the relief afforded by CR 60.02 as to “final judgments, orders, or proceedings” is available as to DVOs if a movant sets forth any of the criteria covered by the rule.

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates, www.LouisvilleDivorce.com.

Girlfriend Can't Get A Domestic Violence Order In Kentucky Unless Living With Boyfriend

Randall v. Stewart, a to be published decision of the Kentucky Court of Appeals found here held that a girlfriend who did not live with her boyfriend could not obtain the protection of a domestic violence order against him.

The digest:

Girlfriend sought a DVO from the trial court after Boyfriend attacked her when she tried to break up with him. Boyfriend and Girlfriend did not have a child nor did they have any other familial relationship. Trial court entered DVO, despite lack of evidence that Boyfriend and Girlfriend shared a residence. Boyfriend appealed to CA, arguing that because he and Girlfriend did not live together, she did not have standing to seek a DVO.

According to KRS 403.725(1), any “member of an unmarried couple” may file a petition for a domestic violence order. For the purposes of KRS Chapter 403, the phrase “member of an unmarried couple” has been defined as “each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who are living together or have formerly lived together.” KRS 403.720(3). Following Barnett v. Wiley, 103 S.W.3d 17 (Ky. 2003), CA held that there must be a finding that the couple shared living quarters, and if so, then the trial court should consider the following six criteria to find that they are living together:

1. Sexual relations between the parties while sharing the same living quarters;

2. Sharing of income or expenses;

3. Joint use or ownership of property;

4. Whether the parties hold themselves out as husband and wife;

5. The continuity of the relationship; and

6. The length of the relationship.

CA held that, because there was not substantial evidence to support the finding that Boyfriend and Girlfriend lived together when the DVO was entered, Girlfriend did not have standing to seek the DVO and trial court clearly erred in entering the DVO. CA, however, pleaded with the legislature to remedy our too-narrow domestic violence statute: “while we lack the authority to expand the scope of KRS 403.725 to cover dating relationships, this case illustrates the compelling need for the General Assembly to consider such an expansion.”

Note: House Bill 396 (HB 396/CI) was introduced and posted in committee on February 14, 2006. This bill would expand KRS 403.720 to allow dating partners to obtain domestic violence protective orders.

As digested by Michelle Eisenmenger Mapes

Domestic Violence Among Refugee and Immigrant Women

Domestic Violence Among Refugee and Immigrant Women is among the posts this week at the Family Law Prof Blog. It links to an audio of a National Public Radio broadcast by Meqdes Mesfin.

Spencer v. Spencer

Spencer v. Spencer, 191 S.W.3d 14 (Ky.App. 2006)

Issues and Holdings:
1. Whether the trial court had personal jurisdiction over a party who had no contact with the Commonwealth of Kentucky. The Court held no, the court had no personal jurisdiction over such party.
2. Whether under KRS 403.725(1), a provision of Kentucky’s domestic violence statute, a Kentucky court may issue a protective order against an individual over whom the court lacks personal jurisdiction. The Court held yes, the court can issue the protective order, however the order cannot impose affirmative duties on the individual over whom the court lacks personal jurisdiction.

Facts:
Ava and Ken Spencer resided in Oklahoma. Ken allegedly abused Ava and their son. On May 21, 2005, Ken flew to Las Vegas. He testified that the family was planning on moving there and he went to find employment. Ava testified that she saw the trip as her opportunity to escape the abuse, and she and their son traveled to Kentucky on May 22, 2005 to stay with a close friend. On May 23, 2005, Ava filed a domestic violence petition in Warren Circuit Court. That same day, the court issued an Emergency Protective Order, which restrained Ken from having any contact with Ava and granted Ava temporary custody of their son. Ken was served in Nevada by the Sheriff’s Department.
On June 6, 2005, Ken filed a motion to dismiss for lack of personal jurisdiction. After a hearing, the court announced that it would enter an Order of Protection. When Ken’s counsel asked the court about its personal jurisdiction over Ken, the court explained that its ruling was based on KRS 403.725(1).
Ken appealed.

Analysis:
First, the Court analyzed whether the court had personal jurisdiction over Ken. The Court reviewed the three prong test set out in Wilson v. Case, 85 S.W.3d 589 (Ky. 2002): 1) whether the defendant purposefully availed himself of the privilege of acting within the forum state or causing a consequence in the forum state; 2) whether the cause of action arose from the alleged in-state activities; and 3) whether the defendant has such connections to the state as to make jurisdiction reasonable. All three requirements must be met for the court to have jurisdiction. The Court held that the trial court did not have personal jurisdiction over Ken, since none of the requirements were met.
Second, the Court examined whether the trial court may issue a protective order against an individual over whom it lacks personal jurisdiction. KRS 403.725(1) allows Kentucky residents to file for domestic violence protection, as well as similar filings by people who have fled to Kentucky to escape domestic violence. The statute does not have a residency requirement; therefore it is a safe harbor statute. The Court recognized that a conflict arises where an order is issued against a party who has no minimum contacts with Kentucky. In such cases, the due process rights of the defendant must be balanced against the state’s interests in protecting victims of domestic violence.
Since this was an issue of first impression in Kentucky, the Court reviewed case law of other jurisdictions. The Court most aligned with how the Supreme Court of New Jersey approached the issue. In Shah v. Shah, 184 N.J. 125, 875 A.2d 931 (2005), the court distinguished between a prohibitory order that protects the victim of domestic violence and an affirmative order that requires the defendant to take action. A prohibitory order enforces the protection the law allows and does not implicate the defendant’s substantive rights. An affirmative order, however, involves the court exercising its coercive power to compel the defendant to act. The court has the authority to impose the former, but not the latter, on an individual over whom the court lacks personal jurisdiction.
In accordance with the analysis in Shah, the Court held that the trial court’s order prohibiting Ken from breaking the law in Kentucky by approaching Ava or the child complied with the requirements of due process. The Court held that the remaining portions of the order, i.e. ordering Ken to attend domestic violence counseling, violated the limits of Kentucky courts’ jurisdiction. The Court vacated the order and remanded the case back to the trial court for further proceedings in accordance with the opinion.

S.L.T. v. R.J.C.

S.L.T. v. R.J.C., 196 S.W.3d 530 (Ky.App. 2006)

Issue and Holding:
Whether the trial court erred in issuing a domestic violence order. The Court held no, the trial court did not err because the evidence established that domestic violence had occurred and may occur again.

Facts:
The parties, never married, are the parents of one child. R.J.C, the mother, filed a domestic violence petition against the father, S.L.T., alleging that he sexually abused their child. The court issued several emergency protective orders to restrain the father from having contact with the mother or child. The court then held a hearing on both the domestic violence petition as well as a separate dependency action. At the hearing, the parties agreed to waive the hearing on the dependency action and scheduled further proceedings for a later date. However, it was noted that the initial sexual abuse allegations had been substantiated and that the investigation was still ongoing. Over the father’s objection, the court ordered him to have no contact with the child, who was to remain in the mother’s custody.
When the court proceeded with the hearing on the domestic violence petition, the father objected to any portion of the petition that contained hearsay. The court sustained the objection. The court then heard sworn testimony from the mother and a social worker. The mother testified that after she picked the child up from her father, the child immediately talked to her about the abuse, that the mother called 911 and had the child examined at a hospital, and that the mother had observed the child “hunching” things and talking about similar behavior. The social worker testified that she was present during the child’s interview and that the allegations had been substantiated. The court found that domestic violence had occurred and may occur again, and granted the DVO. The father appealed.

Analysis:
KRS 403.750 provides that a court may issue a DVO if after a hearing it finds by a preponderance of the evidence that domestic violence has occurred and may occur again. Under KRS 403.720(1) sexual abuse is included in the definition of domestic violence.
The Court found that the trial court did not base its ruling on hearsay, as the father argued. The trial court correctly based its ruling on the testimony of the mother and social worker, which adequately supported the court’s determination that a preponderance of the evidence showed that domestic violence had occurred and may occur again.
The Court affirmed the trial court’s order.

Shared Parenting: Ultimate Power Tool of a Controlling or Abusive Parent

"What influences women when they are making child custody decisions that will bring them into future contact with a violent or controlling ex-husband? Fear, pragmatism, and the belief--sometimes reinforced in mandated divorce education classes--that their children will suffer if both parents are not in their lives, according to a University of Illinois study in the August Journal of Social and Personal Relationships," reported in Medical News Today, Child Custody With Abusive Ex-spouse? Study Shows How Women Decide
"Women also feared courtroom dynamics and a lengthy custody battle. One participant said, 'Get me into a courtroom where they're going to grill me and ask me questions and it's frightening. I don't like that grilling; it's very reminiscent of what he did to me for many, many years. I didn't fight it. I did like I always do. I backed down,' she continued. 'I thought he was going to drag this out until I'm 100 years old."
Thanks to Janet Jangjahr's Shared Parenting: Ultimate Power Tool of a Controlling or Abusive Parent in her Florida Divorce Law Blog for finding this study.

Civil Damages For Domestic Violence Injuries

"Woman Beaten By Husband Wins Suit" was the headline of an MSNBC article, reporting on a $550,000 actual and punitive damage award to a domestic violence victim. "Margaret Drew, the former head of the American Bar Association's Domestic Violence Commission, said that lawsuits are "something that 90 percent of victims never think of." She said the prospect of more months or years in court is daunting, but "in the last few years, I think more lawyers who represent domestic violence victims are discussing the possibility of bringing a civil action."

State Constitutional Amendments Banning Same-Sex Marriage May Impact Domestic Violence Statutes and Unmarried Women

From The Family Law Prof's Blog: Commentary: Do State Constitutional Bans on Same-Sex Marriage Impact Domestic Violence Statutes and Unmarried Women?
and
Another Ohio Appellate Court Holds Domestic Violence Statute Unconstitutional under Ohio's Defense of Marriage Amendment

Two Interesting Articles Relating to Domestic Violence

Florida's Janet Langjahr has two recent postings relating to domestic violence. Last week on FlaDivorceLawBlog she wrote about a study reported in Forbes, that found victims were more apt to confide the abuse to a computer than to a physician, leading advocates to the recommendation that health care providers use computerized questionnaires. Yesterday, she posted Domestic Violence- Smart Spending, providing insight into how dollars can best be used to eradicate this problem in society. Kudos, Janet.

Domestic Violence Against Men

The Contra Costa Times has an article on domestic violence against men. Thanks to Janet Langjahr's FlaDivorceLawBlog, for reporting on this. Janet was also kind enough to give me a couple of tips for linking and better describing other family law blogs, which we put in place this weekend.

There are many women who act violently (32% of arrests are of women, as we learned in the AAML/LBA seminar last month). DVO petitions filed by men are about 25% of the total. But, contrary to the article posted by Janet, other studies show 90-95% of victims of domestic violence are female. Men are generally more physically strong or are able to control with the pretense of strength. The context of the relationship must be examined. The essence of domestic violence is the use of power and control.

However, because it is certainly true that many men are victims of domestic violence, services offered should be gender neutral.

Our laws enjoining domestic violence and abuse are designed to prevent further acts of violence, which tend to escalate. No attorney wants a dead client and no judge wants a dead litigant who could have been protected. We all need to assess factors influencing lethality:

Severity of abuse
Patterns of control (Isolation, creating severe economic dependency, stalking and spying)
Suicidal threats (If you leave me, I'll kill myself) are highly indicative
Threats of homicide
Loss of job
Separation is the biggest factor
Destruction of property and Violence against pets also are relevant

Wright v. Wright and Fraley v. Fraley, 181 SW3d 49, (Ky.App., 2005)

Wright v. Wright and Fraley v. Fraley, 181 SW3d 49
(Ky.App., 2005)
A full evidentiary hearing must be afforded by the
Court before entering or denying a DVO.
The Court of Appeals reversed the entry of a DVO in Wright and the dismissal of an EPO in Fraley, holding that due process required each party be given a meaningful opportunity to be heard. It was error in the Wright case for the Court to ask no questions of either party and to impermissibly rely upon extrajudicial evidence. In the Fraley case, movant's counsel was not given a full opportunity to develop evidence of the prior violent incident.

The Court of Appeals recognized the immense impact the DVO can have upon victims and the devastating impact it can have on an alleged perpetrator holding that a full evidentiary hearing must be afforded to the parties.

More on Investigation of Children Improperly Removed from Domestic Violence Victims

 

The Kentucky Office of Inspector General is investigating whether children whose mothers are domestic-violence victims, and others are being inappropriately removed from their families to increase state foster-care adoptions and federal financial bonuses. The matter is also under review by the Cabinet for Health and Family Services, by various grass-roots organizations and, most recently, by Gov. Ernie Fletcher. For the whoe story by Valarie Honeycutt Spears, click here: Herald-Leader, We found the story on the Family Law Professor’s Blog, but hopefully we’ll soon have the Lexington Herald Leader on RSS feed, too.

Lexington Children Removed from Abused Women in Shelters

The Courier Journal printed an AP story on Monday revealing that the state has removed 50 children in the last year from women who fled to Lexington, KY shelters to escape domestic violence. That morning I asked Nina Mosley, a Louisville attorney who often represents women in shelters (and whose husband is the Director of Wayside Christian Mission in Louisville) whether she has seen such removals in Jefferson County and was pleased to hear that had not been her experience. She only sees children removed when a serious issue such as drug abuse causes the children to be neglected. Today's CJ editorial page confirmed the issue appears limited to Lexington. Surely a thorough investigation will follow.

Domestic Violence Offender Follow-Up

The April 16, 2006 Couier-Journal reported the creation of a new District Court docket to monitor compliance with domestic violence offender treatment. Today's Courier editorial page rightly praised Judge Angela Bisig's pilot program, but inaccuratley referred to the court as a Domestic Violence Court. The Family Divisions of Circuit Court in Circuits where a Family Court exist have jurisdiction to enter Emergency Protective Orders and Domestic Violence Orders and may order treatment, including anger management. These orders are not criminal convictions. The violation of an EPO or DVO, however, is a crime. Once convicted it is District Court that imposes sentences, probation, supervision, etc. and this is the docket the pilot program refers to.

Domestic Violence Protection for Pets

Maine has new pet protection provisions in its domestic violence statutes. I know of no reason in KY why a court could not protect animals as part of the entry of a domestic violence order in the absence of a specific statute. The comments are passionate to the Press Herald online report of the new law. http://pressherald.mainetoday.com/news/statehouse/060412pets.shtml?com_full=1#begin