DVO STANDING: RANDALL V. STEWART (COA 3/2/2007)

RANDALL V. STEWART
FAMILY LAW:  Standing for DVO
2006-CA-001254
PUBLISHED: REVERSING; PAISLEY
DATE RENDERED: 3/2/2007

Girlfriend sought a DVO from the trial court after Boyfriend attacked her when she tried to break up with him. Boyfriend and Girlfriend did not have a child nor did they have any other familial relationship. Trial court entered DVO, despite lack of evidence that Boyfriend and Girlfriend shared a residence. Boyfriend appealed to CA, arguing that because he and Girlfriend did not live together, she did not have standing to seek a DVO.

According to KRS 403.725(1), any “member of an unmarried couple” may file a petition for a domestic violence order. For the purposes of KRS Chapter 403, the phrase “member of an unmarried couple” has been defined as “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 are living together or have formerly lived together.” KRS 403.720(3). Following Barnett v. Wiley, 103 S.W.3d 17 (Ky. 2003), CA held that there must be a finding that the couple shared living quarters, and if so, then the trial court should consider the following six criteria to find that they are living together:

1. Sexual relations between the parties while sharing the same living quarters;

2. Sharing of income or expenses;

3. Joint use or ownership of property;

4. Whether the parties hold themselves out as husband and wife;

5. The continuity of the relationship; and

6. The length of the relationship.

CA held that, because there was not substantial evidence to support the finding that Boyfriend and Girlfriend lived together when the DVO was entered, Girlfriend did not have standing to seek the DVO and trial court clearly erred in entering the DVO. CA, however, pleaded with the legislature to remedy our too-narrow domestic violence statute: “while we lack the authority to expand the scope of KRS 403.725 to cover dating relationships, this case illustrates the compelling need for the General Assembly to consider such an expansion.”

Editor’s Note: Members of the Legislature are listening. House Bill 396 (HB 396/CI) has been introduced and posted in committee on February 14, 2006. This bill would expand KRS 403.720 to allow dating partners to obtain domestic violence protective orders.

As digested by Michelle Eisenmenger Mapes