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Kentucky: Restraining Orders

1. Orders of Protection and Related Laws

   1. Introduction

      Kentucky law defines “domestic violence and abuse” as the occurrence of one or more of the following acts between “family members” or “members of an unmarried couple”: physical injury, sexual abuse, assault, or putting someone in fear of immediate physical injury, sexual abuse or assault. Destruction of physical property alone is not considered domestic violence unless it is also combined with threatening behavior. In Kentucky, an immediate temporary order is known as an emergency protective order (“EPO”), and a final long-term order is known as a domestic violence order (“DVO”). An EPO can be obtained without a full court hearing, and without an abuser present. If a court grants an EPO, the abuser is then notified that there is an order against him or her and the date and time of the hearing for the DVO. Regardless of whether the judge grants an EPO, the victim will get a date for a hearing within 14 days of filing the petition. A DVO, in contrast, is a longer-term version of an EPO, and can offer some more protections than an EPO can. It can only be issued following a full court hearing where both the victim and the alleged abuser tell their sides of the story to a judge. A DVO can last up to 3 years. Thus, in addition to seeking relief by other means, a WMC victim who has also suffered domestic violence or abuse at the hands of a former partner, or a spouse can bring a restraining order against their abuser to try to limit contact, including contact by phone, or through email or social media.¹

      Further, Kentucky law offers a restraining order to any victims whose aggressors have been convicted of stalking or harassment.² The defendant has a right to request a hearing, but if the defendant waives that right, the court can issue the restraining order without a hearing. The restraining order can last for up to 10 years.³

   2. Text of the Statute(s)

      1. Ky. Rev. Stat. § 403.715 (Interpretation of KRS 403.715 to 403.785 by court)

         KRS 403.715 to 403.785 shall be interpreted by the courts of the Commonwealth of Kentucky to effectuate the following express legislative purposes:

         (1) To allow persons who are victims of domestic violence and abuse to obtain effective, short-term protection against further violence and abuse in order that their lives will be as secure and as uninterrupted as possible;

         (2) To expand the ability of law enforcement officers to effectively respond to situations involving domestic violence and abuse so as to prevent further such incidents and to provide assistance to the victims;

         (3) To provide peace officers with the authority to immediately apprehend and charge for violation of a protective order any person whom the officer has probable cause to believe has violated an order of protection issued under KRS 403.740 or 403.750 and to provide courts with the authority to conduct contempt of court proceedings for these violations;

         (4) To provide for the collection of data concerning incidents of domestic violence and abuse in order to develop a comprehensive analysis of the incidence and causes of such violence and abuse; and

         (5) Nothing in KRS 403.715 to 403.785 shall be interpreted to repeal or supplant any duties, responsibilities, services or penalties under KRS Chapters 209 or 620.

      2. Ky. Rev. Stat. § 403.720 (Definitions for KRS 403.715 to 403.785)

         As used in KRS 403.715 to 403.785:

         (1) “Domestic violence and abuse” means physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members of members of an unmarried couple;

         (2) “Family member” means a spouse, including a former spouse, a grandparent, a parent, a child, a stepchild, or any other person living in the same household as a child if the child is the alleged victim;

         (3) “Global positioning monitoring system” means a system that electronically determines a person’s location through global positioning satellite technology, radio frequency technology, or a combination thereof, and reports the location of an individual through the use of a transmitter or similar device worn by that individual and that transmits latitude and longitude data to a monitoring entity. The term does not include any system that contains or operates global positioning system technology, or any other similar technology, that is implanted or otherwise invade or violates the individual’s body; and

         (4) “Member of an unmarried couple” means 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 have lived together or have formerly lived together.

      3. Ky. Rev. Stat. § 403.725 (Petition, who may file – Protective orders)

         (1) Any family member or member of an unmarried couple who is a resident of this state or has fled to this state to escape domestic violence and abuse may file a verified petition in the District Court of the county in which he resides. If the petitioner has left his usual place of residence within this state in order to avoid domestic violence and abuse, the petition may be filed and proceeding held in the District Court in the county of his usual residence or in the District Court in the county of current residence. Any family member or member of an unmarried couple who files a petition for an emergency protective order in District or Circuit Court shall make known to the court any custody or divorce actions, involving both the petitioner and the respondent, that are pending in any Circuit Court in the Commonwealth. The petition shall also include the name of the court where filed.

         (2) Any family member or any member of an unmarried couple, as those terms are defined in KRS 403.720, may file for and receive protection under KRS 403.715 to 403.785, notwithstanding the existence of or intent to file an action in the Circuit Court by either party under the provisions of this chapter.

         (3) A petition filed pursuant to subsection (1) of this section may be filed by the family member or member of an unmarried couple seeking relief or by an adult family member or member of an unmarried couple on behalf of a minor family member.

         (4) If a family member files an action for dissolution of marriage or child custody in Circuit Court, the Circuit Court shall have jurisdiction to issue a protective order upon the filing of a verified motion therein either at the commencement or during the pendency of the action in Circuit Court pursuant to the provisions of KRS 403.730 to 403.785.

         (5) No Circuit or District Court shall require mediation, conciliation or counseling prior to or as a condition of issuing an emergency protective order or domestic violence order.

         (6) When the elected, appointed, or special judge of the district is absent from the district, otherwise unavailable, or unable to act, any Circuit Judge shall have the authority to issue an emergency protective order pursuant to KRS 403.730 to 403.785. If a Circuit Judge issues an emergency protective order, except as otherwise provided in this section, that judge shall conduct the hearing as required by KRS 403.745 and any order issued shall be enforced as provided in this chapter.

         (7) During any hearing in Circuit Court on dissolution of marriage, child custody, or visitation, at which both parties are present or represented by counsel, the Circuit Judge shall have the authority to issue a protective order pursuant to KRS 403.750 to 403.785.

         (8) Following the issuance of a protective order under this section, if the judge who issued the order is absent from the district, otherwise unavailable or unable to conduct proceedings regarding the enforcement, violation, or modification of the order within a reasonable time, the proceedings shall be conducted by a District or Circuit Judge.

      4. Ky. Rev. Stat. § 403.735 (Review by court – Access to emergency protective orders – Local protocol in domestic violence matters – Time at which orders of protection take effect)

         (1) Upon the filing of a petition, as provided for in 403.725, the court, after review of the petition and determining that domestic violence and abuse exists, without a jury, shall utilize one (1) of the alternatives provided for in KRS 403.740 or 403.745.

         (2) A court may issue mutual protective orders only if a separate petition is filed by the respondent.  Pursuant to KRS 403.740 and 403.750, the court shall then provide orders, sufficiently specific to apprise any peace officer as to which party has violated the order if there is probable cause to believe a violation of the order has occurred.

         (3)

         (a) All courts shall provide twenty-four (24) hour access to emergency protective  orders.

         (b) Each court shall submit written procedures for twenty-four (24) hour accessibility to be reviewed and approved by the Kentucky Supreme Court.

         (c) Each court shall establish the local protocol in domestic violence matters in which there may be joint jurisdiction between District and Circuit Court.  Each court shall submit the written procedures to be reviewed and approved by the Kentucky Supreme Court.

         (d) All amendments or revisions to the local procedures required pursuant to this section shall be submitted to the Kentucky Supreme Court for review and approval.

         (4) If an emergency protective order is not issued, the court shall note on the petition, for the record, any action taken or denied and the reason for it.

         (5) If the court determines that the petitioner is not eligible for an emergency protective order, the court shall inform the petitioner of the petitioner’s ability to contact the county attorney as provided in KRS 403.743.

         (6) An order of protection issued under the provision of KRS 403.715 to 403.785 shall become effective and binding on the respondent at the time of personal service or when the respondent is given notice of the existence and terms of the order by a peace officer or the court, whichever is earlier.  After notice of the existence and terms of the order is given to the respondent, a peace officer or the court may enforce the terms of the order, and act immediately upon any violation of the order.  After notice of the order, all reasonable efforts shall be made by the peace officer or the court to arrange for personal service of the order upon the respondent.

      5. Ky. Rev. Stat. § 403.740 (Emergency protective order)

         (1) If, upon review of the petition, as provided for in KRS 403.735, the court determines that the allegations contained therein indicate the presence of an immediate and present danger of domestic violence and abuse, the court shall issue, upon proper motion, ex parte, an emergency protective order:

         (a) Restraining the adverse party from any contact or communication with the petitioner except as directed by the court;

         (b) Restraining the adverse party from committing further acts of domestic violence and abuse;

         (c) Restraining the adverse party from disposing of or damaging any of the property of the parties;

         (d) Restraining the adverse party from going to or within a specified distance of a specifically described residence, school, or place of employment of a petitioner, minor child of the petitioner, family member, or member of an unmarried couple protected in the order;

         (e) Directing the adverse party to vacate the residence shared by the parties to the action;

         (f) Utilizing the criteria set forth in KRS 403.270, 403.320, and KRS 403.822, grant temporary custody;

         (g) Restraining the adverse party from approaching the petitioner or a minor child of the petitioner within a distance specified in the order, not to exceed five hundred (500) feet; or

         (h) Enter other orders the court believes will be of assistance in eliminating future acts of domestic violence and abuse; or any combination thereof, except that the use of a global positioning monitoring system shall not be ordered;

         (2) Except as provided in KRS 403.036, if the court issues an emergency protective order pursuant to subsection (1) of this section, the court shall not order or refer the parties to mediation for resolution of the issues alleged in the petition filed pursuant to KRS 403.735.

         (3) An emergency protective order issued in accordance with this section shall be issued without bond being required of the petitioner.

         (4) An emergency protective order issued in accordance with this section shall be effective until the full hearing provided for in this subsection or in KRS 403.745, or until withdrawn by the court.  Upon the issuance of an emergency protective order, the court shall set a date and time for a full hearing, within fourteen (14) days as provided by KRS 403.745, and shall summon the adverse party to appear.  If, at the hearing, the adverse party is not present and has not been served, the emergency protective order shall remain in place, and the court shall direct the issuance of a new summons for a hearing set not more than fourteen (14) days in the future.  If before that hearing, or a subsequent hearing, the emergency protective order shall remain in place, and the court shall continue the hearing and issue a new summons with a new date and time for the hearing to occur, which shall be within fourteen (14) days of the originally scheduled date for the continued hearing.  Before issuing the new summons, the court shall note the length of time that has passed since the issuance of the emergency protective order, during which the adverse party has not been served.  The court shall repeat the process of continuing the hearing and reissuing a new summons after noting the lapse of time since the issuance of the emergency protective order until the adverse party is served at least seventy-two (72) hours in advance of the scheduled hearing.  In issuing the summons, the court shall simultaneously transmit a copy of the summons or notice of its issuance and provisions to the petitioner.

         (5) The adverse party shall be personally served with a copy of the emergency protective order, a copy of the summons setting the full hearing, and a copy of the petition.  Service may be made in the manner and by the persons authorized to serve subpoenas under the provisions of Rule 45.03 of the Rules of Civil Procedure.  No service fee shall be assessed to the petitioner.

         (6)

         (a) The provisions of this section permitting the continuance of an emergency protective order shall be limited to six (6) months from the issuance of the initial emergency protective order.

         (b) If the respondent has not been served within the six (6) month period, the emergency protective order shall be rescinded without prejudice.  Prior to the expiration of the emergency protective order, the court shall provide notice to the petitioner stating that if the petitioner does not file a new petition the order shall be rescinded without prejudice.

         (c) A new emergency protective order shall not be issued by the court unless the petitioner files a new petition, which shall start the six (6) month process again.

         (d) The total length of time that a series of emergency protective orders may remain in effect without the respondent being served shall not exceed two (2) years.

      6. Ky. Rev. Stat. § 403.750 (Court orders – Amendment)

         (1) Following the hearing provided for under KRS 403.740 and 403.745, the court, if it finds from a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur, may:

         (a) Restrain the adverse party from any contact or communication with the petitioner except as directed by the court;

         (b) Restrain the adverse party from committing further acts of domestic violence and abuse;

         (c) Restrain the adverse party from disposing of or damaging any of the property of the parties;

         (d) Restrain the adverse party from going to or within a specified distance of a specifically described residence, school, or place of employment of the petitioner, minor child of the petitioner, family member, or member of an unmarried couple protected in the order;

         (e) Direct the adverse party to vacate the residence shared by the parties to the action;

         (f) Utilizing the criteria set forth in KRS 403.720, 403.320, and 403.822, award temporary custody;

         (g) Utilizing the criteria set forth in KRS 403.211, 403.212, and 403.213, award temporary support;

         (h) Direct that either or both parties receive counseling services available in the community except that the court shall not order or refer the parties to participate in mediation for resolution of the issues alleged in the petition filed pursuant to KRS 403.715 to 403.785;

         (i) Restrain the adverse party from approaching the petitioner or a minor child of the petitioner within a distance specified in the order, not to exceed five hundred (500) feet; or

         (j) Except for ordering the use of a global positioning monitoring system, which shall not be utilized until after the court determines that substantial violation of a domestic violence order has occurred, enter other orders the court believes will be of assistance in eliminating future acts of domestic violence and abuse.

         (2) Any order entered pursuant to this section shall be effective for a period of time fixed by the court, not to exceed three (3) years, and may be reissued upon expiration for an additional period of up to three (3) years.  The number of times an order may be reissued shall not be limited.  With respect to whether an order should be reissued, any part may present to the court testimony relating to the importance of the fact that acts of domestic violence or abuse have not occurred during the pendency of the order.

         (3) Upon proper filing of a motion, either party may seek to amend a domestic violence order.

         (4) When temporary child support is granted under the provisions of this section, the court shall enter an order detailing how the child support is to be paid and collected.  The enforcement procedures for child support orders, entered pursuant to KRS 403.211, 403.212, and 403.213, including but not limited to 403.215, shall be available to temporary child support orders issued under KRS 403.715 to 403.785.

         (5) Any order entered pursuant to this section restraining a party or parties to an action shall be issued without bond being required of the petitioner.

      7. Ky. Rev. Stat. § 508.155 (Restraining order upon violation of KRS 508.140 or 508.150)

         (1) A verdict of guilty or a plea of guilty to KRS 508.140 or 508.150 shall operate as an application for a restraining order limiting the contact of the defendant and the victim who was stalked, unless the victim requests otherwise.

         (2) The court shall give the defendant notice of his or her right to request a hearing on the application for a restraining order.  If the defendant waives his or her right to a hearing on this matter, the court may issue a restraining order without a hearing.

         (3) If the defendant requests a hearing, it shall be held at the time of the verdict or plea of guilty, unless the victim or defendant requests otherwise.  The hearing shall be held in the court where the verdict or plea of guilty was entered.

         (4) A restraining order may grant the following specific relief:

         (a) An order restraining the defendant from entering the residence, property, school, or place of employment of the victim; or

         (b) An order restraining the defendant from making contact with the victim, including an order forbidding the defendant from personally, or through an agent, initiating any communication likely to cause serious alarm, annoyance, intimidation, or harassment, including but not limited to personal, written, telephonic, or any other form of written or electronic communication or contact with the victim.  An order issued pursuant to this subsection relating to a school, place of business, or similar nonresidential location shall be sufficiently limited to protect the stalking victim but shall also protect the defendant’s right to employment, education, or the right to do legitimate business with the employer of a stalking victim as long as the defendant does not have contact with the stalking victim.  The provisions of this subsection shall not apply to a contact by an attorney regarding a legal matter.

         (5) A restraining order issued pursuant to this section shall be valid for a period of not more than ten (10) years, the specific duration of which shall be determined by the court.  Any restraining order shall be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim, his or her immediate family, or both.

         (6) Unless the defendant has been convicted of a felony, or is otherwise ineligible to purchase or possess a firearm under federal law, a restraining order issued pursuant to this section shall not operate as a ban on the purchase or possession of firearms or ammunition by the defendant.

         (7) The restraining order shall be issued on a form prescribed by the Administrative Office of the Courts and may be lifted upon application of the stalking victim to the court which granted the order.

         (8) Within twenty-four (24) hours of entry of a restraining order or entry of an order rescinding a restraining order, the circuit clerk shall forward a copy of the order to the Law Information Network of Kentucky (LINK).

         (9) A restraining order issued under this section shall be enforced in any county of the Commonwealth.  Law enforcement officers acting in good faith in enforcing a restraining order shall be immune from criminal and civil liability.

         (10) A violation by the defendant of an order issued pursuant to this section shall be a Class A misdemeanor.  Nothing in this section shall preclude the filing of a criminal complaint for stalking based upon the same act which is the basis for the violation of the restraining order.

   3. Cases

      1. Cope v. Jackson, No. 2001-CA-002122-MR, 2003 WL 22519524 (Ky. Ct. App. Nov. 7, 2003)

         • Procedural Posture: Pro se appeal from order dismissing plaintiff’s complaint against appellees.

         • Law:  Protective orders

         • Relevant Facts: Cope was in a relationship with Jackson, until they began having problems. Cope was arrested on federal charges stemming from a complaint Jackson filed against him; he posted bond and was released shortly thereafter.  As a condition of his release, Cope was ordered to avoid any contact with Jackson.  He was then indicted on 15 counts of sending annoying and harassing electronic messages in violation of 47 U.S.C. § 223(a)(1)(C), based on Jackson’s claims that he accessed her Internet account without her permission and sent several disparaging messages to her colleagues and friends.  Following the indictment, third party, Edwards, found a nude photograph of Jackson near the end of a nearby driveway.  He had seen Cope’s truck at the edge of the driveway that afternoon.  Later that afternoon, Jackson found another nude photograph near the edge of her father’s driveway, and she contacted the Sheriff’s office to accuse Cope of leaving the photographs.  Cope was arrested and charged with harassing communications under Kentucky law.  He entered a plea of not guilty, and following his release on bond, he was ordered to have no further contact with Jackson or her father.  Jackson informed the AUSA of the pending state charge, and the government filed a motion requesting the court to issue a show cause hearing to consider whether Cope’s federal bond should be revoked. At the hearing, individuals testified on behalf of the United States claiming that they had seen Cope’s truck prior to the discovery of the photos of Jackson.  The magistrate judge concluded that Cope had violated the terms of his bond because he considered the photographs “to be a form of communication,” and considered “what happened here to be a violation of an order.”⁴ Cope was taken into custody.  Cope was later arrested and charged with involvement in a later shooting that occurred at Jackson’s residence and was accused of a murder-for-hire scheme targeting Jackson.  The harassing communications charge was later dismissed, and in June 2001, Cope filed a pro se complaint against Jackson, her father, and Edwards in the state court, alleging that they had conspired against him to get his federal bond revoked by falsely accusing him of placing nude photos of Jackson in the driveway.  He alleged many theories of tort liability, including invasion of privacy, malicious prosecution and abuse of process.  The lower court dismissed the complaint based on collateral estoppel because of the magistrate judge’s findings at his bond hearing that his actions to amount to harassment.

         • Outcome: The court affirmed explaining that the doctrine of collateral estoppel applied to a bond revocation hearing and that here, the magistrate judge’s findings that he had violated the terms of his bond governed.

         • Special Notes:  The magistrate judge concluded that a party can breach a no-contact order even by having distant contact through leaving nude photographs of the victim in a manner that would disturb a reasonable person.

   4. Practice Pointers

      • In Kentucky, protective orders do not cover: (1) victims of stalking and harassment; and (2) a victim of abuse is someone other than a family member, or someone you live with as a couple/have lived with as a couple, or someone you have had a child with.  

      • Accordingly, victims of stalking or harassment should report it to law enforcement and/or file a criminal complaint in the county where the abuse occurred.

   1. See generally “Protective Orders/Domestic Violence Orders: Kentucky,” available at http://www.womenslaw.org/laws_state_type.php?id=10049&state_code=KY&open_id=11260 (last visited Nov. 12, 2013). ↩
   2. Ky. Rev. Stat. § 508.155 (“Restraining order upon violation of KRS 508.140 or 508.150”). ↩
   3. Id. at § 508.155(5). ↩
   4. Cope v. Jackson, No. 2001-CA-002122-MR, 2003 WL 22519524, at *2 (Ky. Ct. App. Nov. 7, 2003). ↩

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