Court Holds that Judges May Consider Risk Factors

Facts of the Case

Following a hearing on a petitioner’s application for a civil protection order, the trial court found that the petition and testimony satisfied Kentucky’s statutory standards for the issuance of an order.  On the docket sheet in the court file, the trial court noted additional findings of fact, including that “9 of 12 top lethality factors” were present, and listed the nine factual findings identified as risk factors, including the respondent’s cyberstalking of the victim, his possessive and jealous behavior towards the victim, his recent purchase of a firearm (despite his prior felony conviction), and the recent separation of the couple.

The respondent appealed the issuance of the order, arguing primarily that the trial court had inappropriately taken “judicial notice” of the lethality factors, but additionally that it was error to base the decision for the order upon such lethality factors, rather than the required standard set forth in the state statute.

Kentucky Supreme Court Decision

The Supreme Court (in affirming the decision of the Court of Appeals) found the trial court committed no error and denied the respondent’s appeal.  In its ruling, the Court discussed the issue of “judicial notice” and whether it was employed by the trial court in this matter.  Judicial notice is an act by a court, on its own or at a party’s request – and without the production of any supporting evidence – to recognize the existence and truth of certain facts that are generally and universally acknowledged, such as historical events or dates. 

Here, the Supreme Court acknowledged that “lethality factors” are not generally facts; rather, they are “factors,” and hence, do not qualify for a judicial notice process.  The Court noted that the trial court in this case never took judicial notice of the lethality factors; instead, the trial court “employed its background knowledge of domestic violence risk factors to inform its judgment” regarding the facts established by the parties during the hearing.  How the trial court organized the facts (in this case, by associated risk factors) on the docket sheet reflected the court’s judicial knowledge, not the court taking judicial notice of the risk factors themselves.

Regarding the respondent’s argument that the trial court inappropriately relied on risk factors for the issuance of the order, rather than the proper statutory standard, the Supreme Court found that the trial court followed the required procedures for the issuance of the civil protection order, that the findings made in favor of the petitioner met the state evidentiary standard and, that the findings listed in the docket sheet (rather than on the form order) only supplemented the findings that met the state standard.  Since the evidentiary standard requires trial courts to consider the totality of the circumstances and the risk of future violence in protection order matters, the trial court here simply used its own background “knowledge of common risk factors to evaluate whether domestic abuse may occur in the future.” 


Provided a trial court adheres to all requirements and standards for the issuance of protection orders as set forth by state statute and/or case law, this ruling supports the ability of judges to use their knowledge of risk factors when assessing such cases – to assess risk to the future safety of petitioners by looking at the facts presented and recognizing that those facts constitute risk or lethality factors.


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