Background
Joshua and Ashley Cooley married in 2009 and had two children born in 2010 and 2017. In 2016, Joshua grabbed Ashley by the neck and threw her to the ground in front of their daughter, prompting a domestic violence order and his guilty plea to fourth-degree assault. Joshua subsequently violated the DVO by going to Ashley’s home and beating on her car. The family court entered a decree of dissolution in July 2017 granting Ashley primary residential custody. In 2018, Joshua was found in contempt for failing to pay child support and ordered to serve 179 days in jail. The court also restricted Joshua’s timesharing to Ashley’s sole discretion due to his spiteful and retaliatory conduct toward the children.
A second DNA petition was filed in 2019 after Joshua’s daughter witnessed domestic violence between Joshua and his girlfriend. In May 2021, the family court found Joshua had a propensity for violence and ordered his visitation to be supervised by his parents. In August 2022, Ashley relocated to Florida with the children to work as a travel nurse without notifying Joshua or the court. Joshua sought timesharing in May 2023, and after a March 29, 2024 hearing, the family court entered an order on April 12, 2024, granting Ashley sole care, custody, and control of the children, citing the DVO, his violations, and juvenile petitions against him.
Joshua filed multiple motions seeking to alter, amend, or vacate the April 2024 order. On February 28, 2025, the family court denied his motion to alter, amend, or vacate, and denied his motion to enforce an expungement order of related criminal charges from Bourbon Circuit Court. Joshua appealed.
The Court’s Holding
The court affirmed the family court’s denial of Joshua’s motion to alter, amend, or vacate under an abuse-of-discretion standard. The court found that Joshua’s counsel had signed “have seen” on the April 2024 order, indicating approval, and that a client is bound by the acts of his attorney acting within the scope of his duties. The court also noted this was a successive CR 60.02 motion—Joshua had previously filed a substantially similar motion in January 2025 seeking to modify custody. Joshua did not explain why he waited ten months to file the later motion or provide reasons why the family court’s resolution of his seventeen requested changes was erroneous.
Regarding the expungement issue, the court held that while KRS 431.076 expunges criminal records and legal consequences, it does not erase the underlying facts independent of the criminal proceeding. Witnesses with firsthand knowledge of the conduct may testify about those facts if otherwise admissible under the Kentucky Rules of Evidence, even if the underlying criminal charge was expunged. The court noted that any error in considering the expunged charge was harmless because the custody order rested on substantial other evidence: the prior DVO, violations of the DVO, DNA actions, Joshua’s failure to pay child support, and his failure to engage in reconciliation therapy as ordered.
Regarding Joshua’s right to know his children’s location, the court held that Ashley properly invoked Kentucky’s Safe at Home Program, which protects victims of domestic violence by allowing them to use designated addresses instead of their actual residences. Because Ashley had obtained a DVO against Joshua, whom she is no longer married to, she qualified for this protection. Joshua did not challenge the constitutionality of the program before the family court and therefore could not raise this argument for the first time on appeal.
Key Takeaways
- Successive motions under CR 60.02 are disfavored, and a client is bound by counsel’s approval of an order, even if counsel’s actions are allegedly negligent.
- An expungement order removes criminal records and legal consequences but does not erase underlying facts; witnesses with independent knowledge can still testify about the conduct underlying an expunged charge.
- Kentucky’s Safe at Home Program protects domestic violence victims by allowing them to conceal their actual addresses from former abusers, even in family court custody proceedings, and this protection is available independent of current marital status.
- Constitutional challenges to statutes must be raised before the trial court; they cannot be raised for the first time on appeal.
Why It Matters
This decision provides important guidance on the intersection of expungement law and family court proceedings. While expungement removes the legal stigma and formal records of a criminal conviction, the underlying conduct remains relevant to custody and safety determinations. Courts may consider facts underlying expunged charges based on witness testimony with independent knowledge, allowing family courts to protect children without directly relying on the expunged criminal record. This balances the rehabilitative purpose of expungement against the paramount interest in child safety.
The decision also reinforces the significance of Kentucky’s Safe at Home Program in domestic violence contexts, even when extended family relationships are involved. By allowing domestic violence victims to shield their addresses, the program furthers victim protection—a policy that takes precedence over a non-custodial parent’s general right to know a child’s location. Joshua’s inability to raise the constitutional challenge for the first time on appeal underscores the importance of preserving issues at the trial level in family proceedings.