Kentucky law provides for both Emergency Protective Orders (EPOs) and Domestic Violence Orders (DVOs). They are available when there is an allegation of domestic violence between family members or members of an unmarried couple. EPOs are issued on an ex parte basis – meaning that judges issue them after hearing from only one side. There is no notice to the other party, and the other party doesn’t have an opportunity to contest the allegations. They are intended to provide temporary, emergency protection. On the other hand, DVOs are issued after the court conducts a hearing at which both sides have an opportunity to present evidence. An individual going through a divorce can also seek a restraining order from the court handling their divorce.
Who can obtain an Emergency Protective Order or Domestic Violence Order?
EPOs and DVOs are only available to family members or members of an unmarried couple. The term “family member” has a broad statutory definition. It includes spouses, ex-spouses, grandparents, parents, children, stepchildren, and anyone living in the same household as a child if the child is an alleged victim. “Member of an unmarried couple” means each member of an unmarried couple that has a child in common or the members of a couple that are living together or have formerly lived together.
Issuance of EPOs
To obtain an EPO, the person seeking the EPO (the “petitioner”) fills out a sworn petition which is then presented to a judge. The judge must determine whether the allegations in the petition indicate the presence of an “immediate and present danger” of domestic violence and abuse. “Domestic violence and abuse” includes physical injury, sexual abuse, and assault; it also includes “the infliction of fear” of imminent physical injury, sexual abuse, and assault. If the judge determines that there is a danger of domestic violence, the law requires them to issue the EPO.
Getting the EPO served
When the EPO is issued, the Court will schedule a DVO hearing within 14 days. Local law enforcement will then attempt to serve the EPO on the other party (the “respondent”). If the EPO is served in time for the scheduled hearing, the Court will conduct a hearing to determine whether a DVO should be granted. If the respondent is not served, the Court will issue a new summons for another hearing within 14 days. If the respondent cannot be served, this process can continue for up to six months without a new petition and up to two years if the petitioner files new petitions at the end of each six month period.
The DVO hearing
At the DVO hearing, the judge will consider all of the evidence presented and will issue a DVO if most of the evidence (a “preponderance”) indicates that “an act or acts of domestic violence and abuse have occurred and may again occur.” The parties are entitled to legal representation, but not entitled to appointment of counsel if they cannot afford to hire an attorney. The DVO can last up to three years and at the expiration of that three year period it can be reissued. DVOs can be reissued an unlimited number of times.
Consequences of EPOs and DVOs
Judges can order a huge range of things in EPOs and DVOs. The respondent could be ordered to:
- Vacate their residence
- Stay away from the other party and their minor children
- Have no contact with the other party and their minor children
- Stay away from certain places, such as the other party’s residence, school, or workplace
- Pay child support
- Not dispose of the parties’ property
- Participate in domestic violence counseling.
In addition, the Court can grant temporary custody of minor children, and federal law prohibits possessing a firearm while an EPO or DVO is in effect.
Violations of EPOs and DVOs
Once a party has been served with an EPO or DVO, violations of the order can be punished as contempt (carrying up to six months in jail) or as a class A misdemeanor (carrying up to twelve months in jail.
Dismissal and amendment of DVOs
Either party can request that a DVO be dismissed or that the terms of the DVO be amended. For instance, a “no contact” provision could be amended to a “no violent contact” provision. In my experience, judges are only likely to dismiss or amend a DVO if the petitioner requests it.
Related criminal proceedings
A great many EPOs are the result of police being called to the scene of an alleged assault. Officers and prosecutors frequently encourage the alleged victims to seek an EPO after they take charges. This is significant because a DVO hearing can provide a criminal defense lawyer with a rare opportunity to cross examine the alleged victim prior to trial. If you have been served with an EPO, it would be wise to contact an attorney. If you have questions or if you have a case that involves an EPO or DVO, contact a lawyer at Edwards and Kautz to discuss it. We can be reached at 270-908-4914 or by filling out a form on our website.