This discussion will consist of a brief overview of the domestic violence law and practice in the United States, with an emphasis on the legal process of acquiring protection orders against abusive partners. This talk will focus specifically on indigent clients consulting legal aid organizations and will include a description of resources available for victims of domestic violence beyond the courtroom.

Today, we are going to talk about how domestic violence works and in particular, the judicial system in the US.

Kentucky Law classifies relationship violence into two types: domestic violence and interpersonal/dating violence.

Domestic violence specifically deals with violence committed between individuals living in the same house, in other words, family members.

“[A] spouse, including a former spouse, a grandparent, a grandchild, a parent, a child, a stepchild, or any other person living in the same household.”

Another group falls into this type is members of unmarried couple.

“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.”

Unmarried couple are common in this state because of the poverty that the state experiences. Many individuals receive state benefits on a monthly basis. Should individuals decide to become married, this may compromise the benefits or the amount of benefits that they receive. So in order to keep their benefits from the government on a regular basis, individuals decide to, instead of becoming married, live in co-habitat normally.

A dating relationship is describing individuals who are having or have had a relationship of romantic or intimate nature. 

Determining whether it is a dating relationship is actually quite contentious. They may argue it is not a dating relationship so that they are not subject to domestic violence orders.

Based on my experience at the courtrooms, a judge often refers to the messages or social media of the two individuals to determine if a dating relationship is present.

Should the offender not be imprisoned or held within county jail so that they do not present further harm to the victim, it's likely to pursue an order of protection.

A Protection Order is issued by the court. If a court finds that that domestic/dating violence has occurred, and may again occur, it may order a wide range of remedies. This includes, but is not limited to :

Attorneys provide counsel and representation to both petitioners and respondents in relation to the evidentiary hearing and issues of enforcement.

If the petitioner or respondent is indigent, then they are qualified to seek free representation with legal aid organizations.

Regardless of representation, it is the petitioner’s responsibility to first file a petition for protection order at their local courthouse.

Typically, petitioners will not have spoken with counsel prior to filing their petition.

If an attorney meets with their client prior, there are a few things that they can discuss to improve the client’s chances of getting an EPO/TIPO.

When talking with a client prior to filing their petition:

♦ Confirm what type of protection order they want to receive;

♦ Emphasize instances of violence or harm covered explicitly by the statute（can't tell them what to say or what to write）;

♦  Encourage them to be truthful, direct, and inclusive.(A judge may rule that a new instance not covered in the petition that is brought up in the evidential hearing cannot be submitted to the court because the respondent does not have specific notion or this instance and is not prepared to respond to that particular. Encourage your client to write what they know and what they remember about the experience of domestic violence or dating violence )

After the client has petitioned for her protection order, she and the Respondent will receive a set hearing date. By the time the client has sought counsel, only a few days remain before the hearing. Therefore discovery during this time is crucial.

Typically, this is when the client will have their first conversation with you. There are a few key things to remember in you first discussion with your petitioner-client.

♦ Confirm whether your client feels secured. If they don’t feel secured, she may not be able to tell you what happened. Comfort them and tell them they are safe now. If their mental status disable them of illustrating their cases, you can refer them to professional health organization.

♦Patiently listen to the client. Your client has likely experienced extreme trauma. They might be isolated from social interaction for a long time and it may be difficult for them to reveal their deepest pain to you. In that case, you should first be a human to comfort her as well as an attorney to solve their cases.

♦Note-taking, Recording and Eye Contact. If on the phone, take notes of the legally relevant facts and parties. If in person, request to record the conversation. Pay attention to eye contact. When you are taking notes, remember to keep the frequency of eye-contact.

Your client may not want to talk about the most egregious acts of violence they’ve encountered. Therefore you need to explain to them why you need to know all the details and how knowing these details can help you to help them to get all the protection they need.

After they have recounted their situation, ask pointed questions about incidents that relate to prohibited activities under the statute, e.g. Does the Respondent keeps calling you over and over? Does the Respondent stalk you?

Another thing to keep in mind is you need to ask your client “what will the Respondent say about that”. This can help you in relevant weakness analysis and be more prepared in court.

The Basic Flow of the Hearing:

1. At the hearing, the Petitioner will speak first. At this time, you will ask your client to testify about the relationship.

2. After resting, the Respondent will be able to present his case and cross examine your client’s testimony, as well as any witnesses called.

3. Following the Respondent’s presentation, it is then possible to cross examine his testimony and any witness called.

If the judge decides that domestic or dating violence has occurred and will occur again beyond a preponderance of the evidence (51% certainty), then a Protection Order will be issued. The length and conditions of the Protection Order will vary but cannot last beyond 3 years.After three years has elapsed, the order can be renewed at the discretion of a judge.

In Kentucky, a law has been issued in 2020 protecting the victim’s rights which include items like “You have the right, upon request, to be informed about victims’ rights, criminal proceedings, and if the accused is arrested, released, or escapes”.

There are also a few complications that might occur after the hearing. For example, the Respondent may appeal the decision, the Petitioner may want to renew contact with the Respondent maybe because of child issues and the Respondent may violate the order.

In Kentucky, special attention should be paid to special groups. Those who speak English as a second language form a big community in Kentucky. If they are involved in domestic violence cases, they may need interpreters or translators to help. There are also undocumented immigrants who suffer from domestic violence. Their undocumented identity may get them deported. In that case, the judge usually minimize the influence of their illegal identity and try to offer help as much as possible. 

Another tricky situation is about minors. Special agencies are set to deal with minors cases. In issuing interpersonal protection orders, the judge should consider the fact that the two minors may come from the same school and their meeting may be unavoidable.