Cooley v. Cooley: Did the Kentucky Court of Appeals Get Expungement Right?
Key takeaways: Kentucky’s expungement statute says that after expungement “the proceedings in the matter shall be deemed never to have occurred.” KRS 431.076(6). Yet in Cooley v. Cooley, No. 2025-CA-0406-MR (rendered July 2, 2026, not to be published), the Kentucky Court of Appeals held that a family court could still hear eyewitness testimony about the conduct behind an expunged charge in a custody case. The panel drew a line between the criminal case, which expungement erases, and the underlying facts, which it does not. Is that line faithful to the statute, or is it an exception the text never wrote? Both readings have real support, and this post walks through them.
What was this appeal about?
Joshua and Ashley Cooley divorced in 2017 and have litigated custody of their two children more or less continuously since. The record includes a 2016 domestic violence order against Joshua, a guilty plea to fourth degree assault, a violation of that DVO, a stipulation to neglect, child support contempt, and a 2019 incident in which the parties’ daughter allegedly witnessed domestic violence between Joshua and his girlfriend. That 2019 incident generated criminal charges in Bourbon Circuit Court, and in January 2024 the Bourbon Circuit Court expunged them.
In April 2024 the Boyle Family Court, Judge Douglas Bruce Petrie presiding, granted Ashley sole custody. Joshua, representing himself, moved the family court to enforce the expungement order and strike any testimony about the Bourbon County events, arguing the statute deemed them never to have happened. The family court refused, he appealed the denial of his motion to alter, amend, or vacate, and a panel of Judges A. Jones, Karem, and Moynahan affirmed in an opinion by Judge Karem, reviewing only for abuse of discretion. That posture matters; this was not de novo review of a purely legal question, and the panel had an independent harmless error basis for affirming. More on that below.
What does KRS 431.076 actually say?
The statute is sweeping on its face. Subsection (4) of KRS 431.076 commands the expungement of “all criminal records in the custody of the court and any criminal records in the custody of any other agency or official, including law enforcement records.” Subsection (6) goes further: after expungement, “the proceedings in the matter shall be deemed never to have occurred,” agencies must reply to any inquiry that no record exists, and the person “shall not have to disclose the fact of the record or any matter relating thereto” on applications for employment or credit. Read literally and in isolation, “deemed never to have occurred” is about as absolute as statutory language gets.
How the panel drew the line
The Court of Appeals held that the statute reaches the records and legal consequences generated by the criminal proceeding but “does not, however, erase the underlying facts that existed independent of the criminal case itself.” The rule it announced has two halves. A witness whose knowledge comes exclusively from the expunged proceeding or its records cannot testify; the expungement really does seal that door. But a witness with independent personal knowledge of the events, someone who was there, may testify about what happened, subject to the ordinary Kentucky Rules of Evidence.
The panel did not cite Kentucky precedent for the distinction, because there is little to cite. It relied on the criminal procedure treatise at 24 C.J.S. Section 2173, which states that an expungement order does not preclude witnesses with knowledge independent of the expunged record, and on the Tennessee Court of Appeals in Wright v. Tennessee Peace Officer Standards and Training Commission: “The key point is the distinction between the underlying acts, which are not erased by expungement, and the legally operative facts resulting from those acts . . . which are erased by expungement and cannot be considered.”
The case for the panel’s reading
Three points favor the court. First, the statute’s operative verbs all act on records and official consequences: expunge the records, delete them from systems, reply that no record exists, no duty to disclose on applications. Nothing in the text purports to govern what a living witness remembers, and a statute that silenced eyewitnesses would raise serious problems of its own. Second, the alternative rule would have startling consequences in family court. The eyewitness to the 2019 incident was allegedly the parties’ own daughter; on Joshua’s reading, an expungement obtained in a separate criminal case would bar the family court from ever hearing what she saw, in the very forum charged with protecting her. KRS 403.270 requires Kentucky courts to consider evidence of domestic violence in custody cases, and the panel’s rule keeps that command functional. Third, the distinction is the mainstream American rule, which is presumably why the treatise states it flatly.
The case against
The counterargument deserves a fair hearing. “Deemed never to have occurred” is categorical language, and the General Assembly knows how to write exceptions when it wants them; the statute itself carves out records held by the Department for Community Based Services, which shows the legislature thought about what expungement does not reach and did not mention witness testimony. There is also a practical objection: if every eyewitness may testify to the same allegations the expunged charge described, the remedy can feel hollow to the person who earned it, particularly where, as here, the criminal case was resolved in his favor before being expunged. And the panel reached outside Kentucky for its authority, resting on a treatise and a Tennessee administrative law case rather than anything from our own courts. Finally, the court itself hedged: it held in the alternative that any error was harmless under CR 61.01 because the custody ruling rested on ample other evidence. That belt and suspenders approach means the expungement analysis was not strictly necessary to the outcome.
So did the court get it right?
On the law, the panel’s line is the defensible one. Expungement statutes govern paper, databases, and official consequences; they have never been understood to reprogram human memory, and a contrary holding would put Kentucky far outside the national mainstream while hobbling family courts in the cases where history matters most. The textual tension with subsection (6) is real, though, and it deserves better than an unpublished opinion reviewing for abuse of discretion with a harmless error backstop. This question will return in a case where the expunged incident is the whole ballgame rather than one item in a long record, and Kentucky would benefit from a published answer, whether from the Court of Appeals or the Supreme Court of Kentucky. Until then, Cooley is the best guidance available: the case file disappears, the facts do not.
One more observation about how the appeal was litigated. Joshua briefed the case pro se, and the opinion opens with a detailed accounting of his brief’s noncompliance with RAP 32, including the missing statement of the case and the lack of record citations. The panel showed restraint, but it also adopted the appellee’s statement of facts nearly wholesale, and Joshua’s Safe at Home argument was never addressed on the merits because it was raised for the first time on appeal. Whatever one thinks of the expungement holding, this opinion is a case study in how procedural compliance shapes appellate outcomes. For what the decision means practically for parents litigating custody in Kentucky, Bowman Legal’s practitioner breakdown of Cooley v. Cooley covers that ground.
Frequently Asked Questions
What did Cooley v. Cooley hold?
That expungement under KRS 431.076 erases the criminal case and its records but not the underlying facts, so witnesses with independent personal knowledge of the events may still testify in a custody case if the testimony is otherwise admissible under the Kentucky Rules of Evidence.
Does an expungement mean the events are treated as if they never happened?
For records and official consequences, yes: agencies must report that no record exists, and the person need not disclose the matter on employment or credit applications. Under Cooley, that protection does not extend to barring eyewitness testimony about the underlying conduct in a civil custody case.
Is Cooley v. Cooley binding on other Kentucky courts?
No. It is designated not to be published, and under RAP 41 unpublished opinions may be cited only in limited circumstances. It is persuasive guidance, not binding precedent.
Who decided the case?
A panel of the Kentucky Court of Appeals consisting of Judges A. Jones, Karem, and Moynahan. Judge Karem wrote the opinion, rendered July 2, 2026, affirming the Boyle Family Court, and all three judges concurred.
About this site: Judge Got It Wrong publishes independent analysis of Kentucky appellate decisions, written by a practicing Kentucky appellate attorney. The question in our name is a genuine question; sometimes the answer is no. Published August 11, 2026. Last reviewed August 11, 2026.
This post is commentary and general information, not legal advice, and it does not create an attorney client relationship. If you have a case involving these issues, consult a licensed Kentucky attorney.
