Rankin v. Criswell, _ S.W.3d _ (Ky. App. 2008), 2008 WL 5429320
Rankin v. Criswell, _ S.W.3d _ (Ky. App. 2008), 2008 WL 5429320
Criswell filed a petition, on behalf of her two minor children, for a domestic violence order against her former husband, Rankin. Criswell alleged that Rankin sexually abused the parties’ daughter 7 or 8 years ago. The trial court held a very brief domestic violence hearing, which mainly consisted of the court reading the allegations in the petition aloud and the court silently reading two separate dependency case files pending in the family court. Neither the petition nor the dependency files were admitted into evidence and the court asked minimal questions of either party. Neither party was represented by counsel. The trial court entered a domestic violence order against Rankin, precluding him from having any contact with Criswell or their two minor children. The court orally stated that the order would remain in effect until the criminal matter was resolved or until the order expired, however, the order stated that it was effective for three years.
The Court of Appeals found that the trial court failed to conduct a full evidentiary hearing. There was no testimony or other evidence that supported the petition. A DVO cannot be granted solely on the basis of the contents of the petition. At a minimum, Criswell should have been asked by the court whether the allegations in the petition were accurate. In addition, the rules of evidence apply. Hearsay contained in the petition cannot be considered as evidence unless an exception applies. The court also erred in considering the dependency files, which were not in evidence and to which Rankin had no opportunity to examine or refute.
COA remanded the case for a full evidentiary hearing with instructions for the trial court to question Criswell under oath as to the allegations and to let Rankin have an opportunity to respond. As to the duration of the order, if one is entered, it is not dependent on the result of a criminal matter.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates
