Kentucky Court of Appeals Reinforces Due Process in Domestic Violence Cases: What Allen v. Newton Means for Family Law Litigants
On January 9, 2026, the Kentucky Court of Appeals issued Allen v. Newton, No. 2025-CA-0304-ME, a significant decision that reinforces critical due process protections in domestic violence proceedings. The Court vacated a Jefferson Family Court order that dismissed a DVO petition without conducting an evidentiary hearing, despite the court having previously entered an Emergency Protective Order.
While this unpublished opinion cannot be cited as binding precedent, it carries instructive weight for family law practitioners and litigants throughout Kentucky. The decision addresses two essential principles that every party navigating domestic violence, custody, or child protection proceedings must understand.
The Core Holding: Evidentiary Hearings Are Not Optional
The facts in Allen v. Newton are straightforward but instructive. A mother filed a petition for a domestic violence order on behalf of her minor child, a ten-year-old diagnosed with Autism Spectrum Disorder. The petition alleged physical abuse by the child's father, including striking with a belt, food deprivation, and physical violence.
The family court reviewed the petition and found the allegations sufficient to warrant an Emergency Protective Order under KRS 403.730. So far, so good. But when the parties appeared for the DVO hearing, the court dismissed the petition without taking any sworn testimony or receiving any evidence.
The family court's reasoning? It had prior experience with these parties from custody and dependency proceedings, expressed credibility concerns about the mother, and believed the matter was better addressed on another docket. The child's guardian ad litem moved to dismiss and indicated she did not want the child to testify.
The Court of Appeals held this approach constituted reversible error.
The Statutory Mandate Under KRS 403.730
Kentucky's domestic violence statutes are deliberately streamlined. Once a court determines that a petition sets forth allegations constituting "domestic violence and abuse," it "shall summon[] the parties to an evidentiary hearing." KRS 403.730(1)(a). The word "shall" is not a polite suggestion.
The Court of Appeals, citing Wright v. Wright, 181 S.W.3d 49 (Ky. App. 2005), reiterated the principle that "[b]ecause of the immense impact EPOs and DVOs have on individuals and family life, the court is mandated to provide a full hearing to each party."
A DVO hearing need not be lengthy. But it must be actual. The court cannot substitute assumptions, impressions from other cases, or general familiarity with the parties for sworn testimony and admitted evidence.
The Limits of a Guardian ad Litem's Role
The second significant holding in Allen v. Newton addresses the proper role of guardians ad litem in DVO proceedings.
In this case, the child's GAL moved to dismiss the petition and advised the court that she did not want the child to testify. The family court granted the motion and dismissed without conducting any evidentiary hearing.
The Court of Appeals made clear that this approach improperly conflates advocacy with adjudication. While a GAL may argue positions, make recommendations, and raise concerns about procedure or witness competency, the GAL is not the court. The judge, not the GAL, must determine whether sufficient evidence exists to grant or deny a DVO. The judge must make independent findings based on the evidentiary record.
As the Court stated: "While the GAL may offer argument on this issue, that advocacy cannot substitute for the court's own findings and conclusions, nor may the court abdicate its role by deferring entirely to the GAL's position."
This principle applies with particular force in cases involving children with special needs, overlapping abuse allegations, and complex family dynamics. Courts understandably wish to protect vulnerable children from the stress of testimony. But that legitimate concern must be addressed within the evidentiary framework, not by dispensing with hearings altogether.
Separate Proceedings Serve Separate Purposes
The family court in Allen v. Newton reasoned that the DVO allegations could be more appropriately addressed in ongoing custody or dependency proceedings. The Court of Appeals rejected this rationale.
Domestic violence proceedings and custody proceedings serve distinct purposes and follow different procedural paths. DVO actions are intentionally expedited to provide prompt protection where domestic violence is alleged. Custody matters often unfold over longer periods with more deliberative procedures.
As the Court explained, citing Rankin v. Criswell, 277 S.W.3d 621 (Ky. App. 2008): a court may not deny a domestic violence petition based on matters drawn from other pending or prior cases that are not made part of the DVO record. Nor may proceedings in one action substitute for the statutorily required hearing in another.
The existence of concurrent custody litigation, DNA cases, or ongoing investigations does not relieve the family court of its obligation to conduct an evidentiary hearing once an EPO has been entered.
What This Means for Kentucky Families
Allen v. Newton sends a clear message to family courts across Kentucky: procedural shortcuts cannot override statutory mandates and constitutional due process.
For petitioners seeking protection, this decision reinforces that you are entitled to present evidence, testify under oath, and be heard before your petition is dismissed. The burden of proof remains yours, and you must secure your evidence and witnesses. But the opportunity to carry that burden cannot be taken away without a hearing.
For respondents facing DVO allegations, the same principle applies. You are entitled to confront the evidence against you and present your own testimony and witnesses. A court cannot grant a DVO against you without affording you that opportunity.
For practitioners, the decision underscores the importance of understanding procedural requirements in DVO actions and preserving error when those requirements are not followed. The mother in Allen v. Newton proceeded pro se and, despite briefing deficiencies, obtained relief because the error below was fundamental.
The Dissent's View
Judge Karem dissented, arguing that the GAL's motion to dismiss under CR 41.01(1) was proper because it was made before any testimony was taken or evidence entered. The dissent reasoned that the GAL, as the child's agent, was authorized to dismiss the petition on the child's behalf, and that remanding for a hearing the GAL had already indicated she would not participate in was an inefficient use of court resources.
The majority rejected this view, holding that the statutory requirement for an evidentiary hearing under KRS 403.730 cannot be circumvented by a CR 41.01 dismissal once an EPO has been entered.
Practitioners should be aware of this tension. While CR 41.01 generally permits voluntary dismissal before an answer or summary judgment motion, DVO proceedings follow a distinct procedural framework that may not accommodate the same approach.
Practical Takeaways
The EPO triggers the hearing requirement. Once a court enters an Emergency Protective Order, it has necessarily determined that the petition alleges domestic violence and abuse. From that point forward, an evidentiary hearing is mandatory before the petition can be granted or denied.
GAL recommendations cannot replace judicial fact-finding. Guardians ad litem play an important role, but their advocacy cannot substitute for the court's independent obligation to hear evidence and make findings.
Overlapping cases do not excuse the hearing requirement. Concurrent custody, DNA, or criminal proceedings do not relieve the court of its duty to conduct a DVO hearing. Each action serves distinct purposes.
Child competency must be assessed properly. A child witness is presumed competent under Kentucky law. Price v. Commonwealth, 31 S.W.3d 885, 891 (Ky. 2000). Concerns about a child's ability to testify must be addressed through proper competency determinations, not by dismissing petitions without hearings.
Appellate review remains available. Even when trial courts act with good intentions, appellate review exists to ensure statutory requirements and due process are respected.
Bowman Legal: Experienced Family Law Advocacy
At Bowman Legal, we handle the full spectrum of family law matters throughout Kentucky, including:
Domestic violence petitions and defense
High-conflict custody and parenting time disputes
Dependency, neglect, and abuse proceedings
Appeals from family court rulings
As a Fellow of the American Academy of Matrimonial Lawyers and a Kentucky certified mediator, Jason A. Bowman brings both courtroom experience and practical problem-solving to every case. When trial courts make errors that affect your family, we know how to preserve issues for appeal and advocate effectively before Kentucky's appellate courts.
Family law decisions have lasting consequences. They must be made properly, with full adherence to statutory requirements and constitutional protections. If you are facing a domestic violence matter, custody dispute, or child protection proceeding anywhere in Kentucky, contact Bowman Legal to discuss your options.
Bowman Legal, Inc.
6100 Dutchmans Lane, Suite 1100
Louisville, Kentucky 40205
(502) 861-7414
jason@bowmanlegalgroup.com
This blog post is for informational purposes only and does not constitute legal advice. Every case is different, and you should consult with an attorney about your specific circumstances.