Family Court Abused its Discretion by Relying on Extrajudicial Statements from the Cabinet

Father filed a Petition for Emergency Protective Order (“EPO”) on behalf of Child against Mother after Child disclosed to Father that Mother kicked Child down the stairs and observed bruising on Child.

The Family Court issued an EPO on behalf of Child against Mother. At the time for the scheduled hearing on the EPO petition, the Family Court announced that it would be dismissing the EPO instead of conducting an evidentiary hearing because the Cabinet for Health and Family Services (“Cabinet”) had not substantiated the allegations regarding Child. No Cabinet representative appeared at the hearing, and no evidence was formally entered. However, the Court did engage in ex parte communications with the Cabinet prior to the hearing. Notwithstanding Father’s objection to the dismissal of the EPO, the Family Court dismissed the Petition.

Relying upon Wright v. Wright, 181 S.W.3d 49, 53 (Ky. App. 2005) and KRS 403.730(1)(a), the Court of Appeals held the Family Court’s acceptance of out-of-court, ex parte communications from the Cabinet in lieu of conducting an evidentiary hearing was a clear abuse of discretion.

 

KRS 403.730(1)(a) provides that if the court determines that the EPO petition sets forth the existence of domestic violence and abuse, then the court “shall summons the parties to an evidentiary hearing.” Further, nowhere do the DVO statues permit the family court to engage in ex parte communications with the Cabinet about the underlying allegations for the purpose of determining whether to move forward with the hearing or dismiss the petition.

Digested by Emily T. Cecconi