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Domestic Violence: What You Need to Know

There are many myths floating around on the internet about what domestic violence is, when the court will grant a domestic violence order, and what to do if the allegations are false. This post tries to clear up many of the common questions regarding domestic violence.

What is Domestic Violence?

Kentucky defines domestic violence and abuse as physical injury, serious physical injury, stalking, sexual abuse, strangulation, assault, OR the infliction of fear of imminent physical injury, serious physical injury, stalking, sexual abuse, strangulation, or assault between family members or members of an unmarried couple. (see KRS 403.720). A "family member" includes your spouse, former spouse, grandparent, grandchild, parent, child, stepchild, or any other person living in the same household as a child (if the child is the alleged victim). An "member of an unmarried couple" means each member of an unmarried couple which has a child in common (even if not on the birth certificate), or a couple living together (or formally living together).

These definitions guide the court in determining if a domestic violence order should be granted. Most importantly, domestic violence does not require actual violence, but includes the fear of violence as defined above. This is one of the most common myths on the internet - that violence must have actually occurred. This is simply not true in the state of Kentucky.

Who Can File for an Order of Protection and Where Do They File?

The Petition for an Order of Protection can be filed by either 1) a victim of domestic violence or abuse; or 2) an adult on behalf of a victim who is a minor that qualifies for protection. (see KRS 403.725). The individual seeking protection for themselves and their child can file in the county where they reside or any county that they have fled to in order to escape from domestic violence. In short, an Order of Protection can be filed in any county.

The Kentucky legislature not only passed a statute that permits individuals seeking protection to file in any county, but has also provided that each court shall have a protocol for 24/7 access to orders of protection. And, this access includes both rape crisis centers or reginal domestic violence shelters that elect to participate.

What is the Legal Standard for Domestic Violence cases?

In Kentucky, an evidentiary hearing is required. The judge is required, at the evidentiary hearing, to determine if, by a preponderance of the evidence, domestic violence and abuse has occurred AND may occur again. The legal standard for an order of protection is a preponderance of the evidence, which means that the evidence for domestic violence is more convincing than the evidence that is offered in opposition to it. Another myth commonly spread on the internet in regard to domestic violence is that the individual seeking protection needs to prove that domestic violence occurred. In reality, the Petitioner needs to show the court that domestic violence most likely occurred and may occur again unless an order of protection is granted.

What can the Judge Order After Granting an Order of Protection?

The judge has many options after granting an Order of Protection. Some of these options include:

  1. Restraining the adverse party from committing further acts of domestic violence and abuse;
  2. Restraining any communication with the Petitioner or other persons protected by the Domestic Violence Order;
  3. Restraining the adverse party from approaching the Petitioner or other persons protected by the Domestic Violence Order within 500 feet;
  4. Restraining the adverse party from going to, or within a specific distance from, any described residence, school, place of employment, etc.;
  5. Directing the adverse party to vacate a residence shared by the parties;
  6. Granting temporary custody to the Petitioner;
  7. Awarding temporary child support to the Petitioner;
  8. Require the adverse party to seek counseling; and/or
  9. Restraining the adverse party from destroying any property; and/ or
  10. Any other actions the judge believes will assist in eliminating future actions of domestic violence.

It is important to note that if a Domestic Violence Order is granted, then the Order shall remain effective for a fixed period of time not to exceed 3 years, and may be reissued for periods of up to 3 years. And, violation of the Order of Protection may result in contempt or criminal proceedings (see KRS 403.763).

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Wise Law LLC
8401 Shelbyville Road, Suite 105
Louisville, KY 40222

502-930-8685chriswise@wiselawllc.com
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