The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Domestic violence restraining order based partly on "'scary' clown" picture, Walking Dead doll, and head of hair with horns


Kyle Rainer and Brandy Buchanon had a 6-year-old child, B.L.G.R. The child "lived with Mother, but visited with Father on Sundays." In early 2014, though, mother filed a petition in court alleging domestic violence on father's part. Part of the allegations were that he had angrily yelled at her, scaring her and the daughter. Part was that he had "head-butted" the daughter. But the mother also introduced evidence about

certain images that were posted on his Facebook page. Among the images were a picture of a "scary" clown, a photograph of Father's living room where a Walking Dead doll can be seen, and a picture of a head of hair with horns projecting from it.

The family court had earlier entered a stay-away domestic violence order, and "prior to allowing introduction of the Facebook images, the family court indicated that it was going to partially grant Father's motion and amend the DVO down from 'no contact' to 'no violent contact.'" But "[a]fter considering the Facebook posts," the court changed its mind on the amendment, and kept the order as it was.

The court of appeals disagreed, and reversed the restraining order altogether (Rainer v. Buchanon (Ky. Ct. App. Mar. 13, 2015), or go here and search for "clown"):

Domestic violence is defined as a "physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse or assault between family members or members of an unmarried couple."

In assessing whether a preponderance of evidence supported the trial court's DVO order, we must first consider the relevance of Father's Facebook posts, if any. The posts concerned some of Father's home interior decorations and some of his personal tastes in television shows and other matters of pop culture. There was nothing to either explicitly or implicitly connect those posts with any prior or future acts of domestic violence by Father. While such matters might, depending on the context, be relevant in a child custody action, the family court should not have relied upon them in determining whether to issue a DVO.

The court also concluded that the yelling incident wasn't enough to justify the order: "At most, Mother alleged that Father evoked fear in her when he 'yelled' outside her home and that he seemed 'angry' and 'mean.' Certainly, yelling during the course of a disagreement is not to be condoned nor is repeatedly initiating unwanted contact. Without some implicit or explicit threat of harm, however, we do not believe that such conduct, at least as it transpired in this case, constitutes an act of domestic violence." And the court concluded that the headbutting was just "an inappropriate, physically rough game," but there was no "evidence in the record to suggest that the headbutting actually caused a physical injury to Child or was undertaken with the intent to do so" (plus one that was unlikely to happen again).