The Difference Between an EPO & a Restraining Order in Kentucky

In Kentucky, an emergency protective order (EPO) is a short-term order by a civil court to prohibit an abuser from having contact with the victim. The court may issue an EPO in a domestic violence case or issue a temporary interpersonal protective order (TIPO) in a dating violence or stalking/sexual assault case. An EPO and a TIPO typically place restrictions on the abuser until the court schedules a hearing on the matter.

The court usually schedules a hearing within 14 days. An EPO or TIPO may stay in effect for six months if the person alleged to be the abuser, or the respondent, has not been served with the order. After that point, the court may reissue the EPO or TIPO.

A domestic violence order (DVO) is a long-term order by a civil court for an abuser not to have contact with the victim. An interpersonal protective order (IPO) is a long-term order for a dating violence or stalking/sexual assault case. These orders can last for up to three years.

In order to get a DVO, a petitioner must meet a preponderance of the evidence standard, or 51 percent proof, that an act of domestic violence or abuse has occurred and may occur again. In order to get an IPO, a petitioner must prove to the same standard that an act of dating violence or abuse, stalking or sexual assault has occurred and may occur again. A judge may consider a respondent’s criminal record in the hearing.

To apply for a protective order in a Kentucky county, the person seeking the protective order, or the petitioner, must be a resident of the county or have fled to it as a safe place. They must also be seeking protection from someone to whom they were, or are, legally married, have a child in common with, are living or have lived with in the past, or is a current or past dating partner. A petitioner could also be seeking protection from someone who sexually assaulted them or who is stalking them or a family member. The last requirement is that the petitioner must believe they are in immediate and present danger of violence.

A petitioner must show that the person from whom they are seeking protection has physically injured or assaulted them, sexually abused or assaulted them, threatened to physically injure or assault them, or done something to place them in fear that they are about to be injured, assaulted or abused. A petitioner may request that their children be included in a protective order. An adult petitioner may file a petition on behalf of a minor family member; a minor may also file on their own behalf.

A petitioner should get the forms to file a protective order from the Circuit Clerk’s office in the county in which they live or to which they have fled. After business hours, the petitioner should contact their local law enforcement office or domestic violence program. The petitioner should then submit the completed forms to the court.

A judge will decide whether to issue an EPO or a TIPO and whether to set the matter for a court hearing date. If the judge determines the basis for an order does not exist, they may consider an amended petition or dismiss the petition without prejudice, which means that the victim can file another petition in the future.

A petitioner completing the form for an EPO should provide all the information they have about acts of domestic violence and abuse that the respondent has committed against them. A petitioner completing the form for a TIPO should provide all the information about the dating violence and abuse, stalking or sexual assault that the respondent committed. For example, a petitioner should provide the dates, places and events that constituted one or a series of acts of domestic violence. It is a good idea to describe the most recent acts of abusive behavior as well as the respondent’s history.

The petitioner should describe the injuries they suffered and whether any weapons were involved. They should also describe whether they are fearful of future harm and why the respondent may harm them if they do not have the protection of a protective order. The petitioner should review the incidents with a lawyer or legal aid worker before including them in the petition.

The petitioner needs to provide all of the incidents that are relevant. If the petitioner does not include information, they may not be able to testify about things that are not in the petition. In that case, a judge may find that the respondent did not have notice of the allegations and so could not provide documents or witnesses to counter the allegations. The judge can exclude testimony about allegations that are outside of the petition.

A petitioner can ask for any or all of these restrictions:

• No contact, an order to prevent the respondent from making ordinary contact with them, such as a phone call or text message.
• No violent contact, an order to prevent the respondent from engaging in acts of physical abuse or in making threats of such.
• Order to vacate, an order for the respondent to leave the home the parties share.
• No property damage, an order for the respondent not to sell or destroy family property.
• Custody, an order for temporary child custody or other relief, such as a requirement for the respondent to attend anger management classes or a batterer’s intervention program.
  

A petitioner may also request that a respondent be required to stay up to 500 feet away from a specific location, such as the petitioner’s home or a child's school. If they make this request, the respondent will be given the address.

If the respondent does not already know where the petitioner lives and works, it is safer for the petitioner to request that the respondent maintain a 500-foot distance from them at all times. A petitioner should list any children they and the respondent have. They can request that children also be protected by the protective order.

Typically, a Family Court judge will hear an EPO case. In counties with no Family Court, a District Court judge will hear an EPO case. The exception is if there is an open divorce or custody case for the parties, this will transfer jurisdiction to the Circuit Court. A District Court or Family Court judge may hear a TIPO case, depending on the method of the local court.

A judge can order the respondent to have no communication with the petitioner, directly or through other parties. The judge can order the respondent to commit no further acts of domestic violence or dating violence. The judge can order the petitioner to have full temporary custody of minor children and for the respondent to be required to pay spousal support.

The judge can prohibit a respondent from owning a firearm in most DVOs, but not in most IPOs. A judge can order the respondent to go to counseling.

A petitioner can include children in a protective order, but the court may still allow the abuser to have reasonable visitation. The court will award custody and time-sharing based on a “best interest of the child” standard.

When the court determines that visitation with the abuser could endanger the child, it can order supervised visitation. The court may also order monitored exchange, an assisted transfer from parent to the next. After the exchange occurs, the parent and child have unsupervised visitation.

If a petitioner has concerns about the safety of a child when they are alone with a respondent, they can ask the judge for a time-sharing assessment by the Friend of the Court’s Office. A specialist conducts an assessment through separate interviews with the petitioner, respondent and the child, if it is age-appropriate. The specialist then makes a recommendation to the judge about time-sharing.

Kentucky defines domestic violence and abuse as physical injury, serious physical injury, stalking, sexual assault, or the infliction of fear of any of these that occurs between family members or members of an unmarried couple. Kentucky defines dating violence and abuse as all of these actions that occur between people who are, or have been, in a dating relationship.

Six factors determine whether two people are in a dating relationship and whether a court will grant the petitioner a TIPO or IPO as opposed to an EPO or DVO. The six factors are:

• Declarations of romantic interest.
• Whether the relationship was characterized by the expectation of affection.
  
• Attendance at social outings together as a couple.
• Frequency and type of interaction over time or a continuous basis and the length of the relationship.
• How recently the relationship occurred.
  

The court will also look at other indications that the two individuals had a substantial connection. Such indications must lead a reasonable person to understand a dating relationship existed.

When a victim is a member of a university community, such as a student or faculty member, they may be able to obtain a campus No Contact Order (NCO) against an abuser. A campus NCO is different and separate from an EPO, TIPO, DIVO or IPO. It comes directly from the university; there is no court involvement. At the University of Kentucky, a victim should contact the Violence Intervention and Prevention Center to inquire about a NCO.

When a victim files for an EPO or TIPO, this does not initiate a criminal case against the abuser. In order to initiate a criminal case, the abuser must be arrested for the underlying incident. Typically, the victim should press criminal charges against the abuser by becoming a witness for the prosecution. A victim in a domestic violence case can contact the prosecutor’s office to learn about a defendant’s court dates, plea bargains and bond or release from custody.

Once a defendant has been charged with a crime by a law enforcement officer, the victim cannot drop the charges; only a prosecutor can dismiss the case. When a prosecutor opens a criminal case against a defendant, the judge may order the defendant to have no contact with the victim. This is an order in the criminal case.

A no contact order in a criminal case is not an EPO, TIPO, DIVO or IPO. If the defendant in the criminal case violates the no contact order, they can be arrested and incarcerated for failing to abide by the order. A victim can request that the judge allow them to have contact with the defendant. A victim should request this by contacting the victim advocate or prosecutor assigned to the case.

After a defendant in a criminal case is convicted, or found guilty, of stalking or sexual assault, the conviction acts as an automatic application for an IPO. The victim can decline the IPO, though. A conviction is adequate proof for the entry of an IPO. An IPO received as a result of a conviction will last 10 years. It can be renewed in 10-year increments.

A prosecutor may charge a violation of an EPO, TIPO, DVO or IPO as contempt of court or a Class A misdemeanor. A contempt of court charge is punishable by up to six months in jail, and a Class A misdemeanor is punishable by up to a year in jail.

A court may enter a mutual civil protective order in a divorce or custody case in exchange for the dismissal of an EPO or TIPO. A mutual civil protective order requires both individuals to have no contact or limited contact with one another.

The violation of a mutual civil protective order is not a crime. A mutual civil protective order also will not be enforced by police. In addition, a mutual civil protective order does not trigger a federal gun prohibition.