16 Jan New Year, More Cases: Jan 9 Round Up
One dynamite case and one dud this week. Plus, the weekly criminal tally. It’s time for the Round Up!
Evangeline Allen v. Byron Newton and T.N., a minor child, 2025-CA-0304
If unpublished opinions didn’t matter, this one wouldn’t. But they do — and this one is dynamite.
In a sharply written majority opinion, paired with an equally thoughtful dissent, the Kentucky Court of Appeals vacated a Jefferson County Family Court order that dismissed a child-based DVO without taking a single witness under oath. The case tees up a recurring—and increasingly important—question in Kentucky family courts:
Once an EPO is entered, can a family court dismiss the case without holding a real evidentiary hearing?
According to the majority, the answer is no. According to the dissent, sometimes yes — especially when the child’s own lawyer asks for dismissal. Either way, this case is a must-read.
The Set-up
This setup is unfortunately common, especially since the passage of the presumption of 50/50 custody statute. In this case specifically, Evangeline filed a DVO petition on behalf of her ten-year-old autistic child, alleging severe physical abuse by Byron. The allegations were detailed, disturbing, and serious. The family court initially agreed they were sufficient and issued an Emergency Protective Order.
But at the scheduled DVO hearing, something unusual happened. The child’s Guardian ad Litem (GAL) moved to dismiss the case outright. Her reasoning is as follows:
- Many of the allegations overlapped with custody and DNA cases already pending for the parties.
- A forensic interview had occurred.
- The Cabinet wasn’t moving forward (yet).
- And, critically, she did not want the child to testify.
As a result, the Family Court dissolved the EPO and dismissed the case without hearing sworn testimony from anyone. Evangeline, representing herself, appealed. And won.
The Majority: Due Process Still Means a Hearing
Once the Family Court determined the petition alleged domestic violence — and issued an EPO — KRS 403.730 required an evidentiary hearing. Not a discussion. Not a scheduling conference. An actual hearing with evidence.
Judge Jones, writing for the majority, didn’t mince words. The Court of Appeals emphasized:
- A DVO cannot be granted or denied based solely on petitions or a judge’s familiarity with other cases.
- Custody cases and DVO cases serve different purposes, and one cannot substitute for the other.
- Due process means a meaningful opportunity to be heard — even in fast-moving family court dockets.
Because no sworn testimony was taken, the dismissal violated both the statute and basic due process. The Court of Appeals vacated the dismissal, reinstated the EPO, and sent back the case for a proper hearing.
Importantly, the Court of Appeals did not say (a) a DVO must be entered or (b) the child must testify. Only that the process has to be real.
The Dissent: The GAL Is the Child’s Voice
Judge Karem’s dissent is just as carefully reasoned — and just as important.
Relying heavily on Smith v. Doe, the dissent views the GAL as the child’s litigation agent, with authority to make strategic decisions—including dismissal. Because the child was the sole party in interest and the GAL moved to dismiss under CR 41, the dissent would have affirmed the trial court’s outright dismissal.
From this perspective:
- A DVO is a civil action;
- CR 41 applies;
- A plaintiff (the child through the GAL, in this case) can voluntarily dismiss; and
- Forcing a remand wastes scarce judicial resources if nothing will change.
It’s a clean, principled argument — and one that will resonate with many trial judges.
The Round Up Take
The editorial board sides with the dissent’s framework, within limits and with some additions.
A Rule 41 dismissal can be the most prudent path if, and only if, it is informed by the duties owed to a child client. Those duties should be superimposed on any GAL motion to dismiss and should include, at a minimum:
- actually meeting the child client;
- interviewing relevant witnesses;
- preparing for the scheduled hearing; and
- refraining from seeking relief not supported by the facts or the law.
Those obligations apply to all lawyers, including GALs. With those guardrails in place, Rule 41 may be the cleanest way to avoid forcing a vulnerable child into testimony while still honoring due process. Without these guidelines, dismissing a DVO without a hearing risks short-circuiting both statutory protections and public confidence in the system.
Early Leader for Unpublished Case of the Year
This Opinion — majority and dissent — belongs on every Kentucky family lawyer’s radar. The fact pattern is common. The legal tension is real. And the issue is not going away.
Don’t be surprised if this case is further appealed to the Kentucky Supreme Court with a Motion for Discretionary Review by Byron or quietly cited (and re-cited) in family courts across the Commonwealth.
Unpublished, but already punching above its weight. http://opinions.kycourts.net/COA/2025-CA-000304.PDF
Richard Wesley Evans v. Meridith Rena Evans (now Clayton), 2025-CA-0721
In comparison to our firework case, this one is a routine affirmation of a Family Court decision.
The Father, Rick, appealed a timesharing modification after the Edmonson County Circuit Court found that he wasn’t honoring joint custody in practice. He was found to be cutting off communication with the mother, Meridith; withholding information; and edging into parental alienation territory. The Court of Appeals affirmed the trial court’s ruling across the board, finding substantial evidence and no abuse of discretion. Standard deference, standard result.
Modification affirmed. The trial court believed Meridith and didn’t believe Rick, and the record supported it. Nothing new here.
Rightfully unreported. http://opinions.kycourts.net/COA/2025-CA-000721.PDF
The Criminal Tally
Another tough week for the criminal defense bar. There weren’t many cases and none reported. Finally, score of Cops 2, Robbers 0.
Thanks for reading! Click here for the previous Round Up.
Cover Photo by Trust “Tru” Katsande on Unsplash