How do Utah Protective Orders work?

What is the process for getting a protection order against someone?

A protective order, often referred to as a restraining order, can be issued by the courts in a limited number of circumstances. If you file for a protection order, you will be called the “petitioner” and the party against whom you are seeking the protection order will be called the “respondent.” Here are the steps that you must take in order to get a protective order issued by the court:

First, you must fill out some forms requesting the protective order. These forms can be found online at http://www.utcourts.gov/resources/forms/protectorder/forms.html.

Once you have filled out the necessary forms, you must take the forms to the district court in the county where you live. Once you reach the courthouse, locate the clerk’s office and tell them that you want to file a Request for a Protective Order and they will make sure that you have filled out all the necessary paperwork.

If all of the paperwork is correctly filled out, and no other information is missing, the clerk will take you in front of a judge, this is called an ex parte hearing. During this hearing, the judge will look at your paperwork and will give you a chance to explain why you think a protection order is necessary.

If the judge chooses to grant the order, the order will only be temporary. The clerk will give you a copy of the temporary order and will give the County sheriff a copy of the order as well so that the Sheriff can serve a copy on the party against whom you are seeking the protection order. Once the temporary order is served upon the other party, the order becomes effective and will remain in effect until the court hearing for the Final Protective Order (this will usually be scheduled within 20 days of initially granting the temporary protection order).

In order to make the protection order final, you must appear for the Final Protective Order court date. During this court appearance, the other party has the chance to appear and contest the order. It is at this stage during the proceeding that an attorney will be most helpful. Since the opposing party has the opportunity to also have counsel present, it is always a good idea to bring your own counsel so that you are not blindsided when opposing counsel appears and tries to get the protective order dismissed. This part of the process is more of an adversarial proceeding and both sides have the chance to present evidence, witnesses, and testimony on their own behalf to demonstrate to the court why a final protective order should, or should not, be issued. At the close of all of the evidence, the judge will weigh both sides and will come to a final conclusion of whether or not to grant a Final Protective Order.

What is a Final Protective Order?

A final protective order has two parts, a criminal and a civil part.

The criminal part lasts indefinitely and states that the respondent shall not commit any of the following “criminal” offenses against the petitioner: domestic violence, abuse, harassment, communicating directly or indirectly with the petitioner, entering the petitioner’s residence and its premises, coming within a specified number of yards of the petitioner, petitioner’s residence, or place of employment. (These crimes are listed under Utah Code section 78B-7-106(2)(a)-(e)). If the respondent commits any of these offenses, it will be considered a criminal violation of a protection order.

The civil part lasts for 150 days. Civil provisions of the protective order include things like granting temporary custody of any minor children, setting a temporary amount for child or spousal support. The civil portion of the order lasts for only 150 days since matters such as these should be taken before a family court for final resolution.

What are the criteria for granting a protection order?

Under Utah Code 78B-7-102(1), a protection order will be granted where abuse has occurred. Abuse occurs when someone: (1) purposely causes you physical harm; (2) tries to cause you physical harm; or (3) makes you afraid that you will be physically harmed.” According to Utah Law 78B-7-103(1) & (2) You can seek a protective order against an abusive partner or person regardless if you or that person has left the residence or premises and regardless of whether an action for divorce between the parties is pending.

What happens if the respondent violates the protection order?

Under Utah’s Code, 78B-7-106(5)(b) & (c), a violation of the criminal part of a civil protection order is considered a Class A Misdemeanor, which can be prosecuted by the county attorney as a criminal matter. A violation of the civil provision of the protection order is subject to contempt proceedings by the court.

After a Final Protective Order is issued, can it be modified or dismissed?

If either party makes a motion with the court to either modify or dismiss the protective order, the court can consider the motion. However, the criminal provisions of a protective order may not be vacated within two years of issuance unless the petitioner is aware of the hearing and appears before the court and consents to vacate the criminal provisions or the order, or the petitioner submits a verified affidavit consenting to the criminal provisions of the order to be vacated. See Utah Code 78B-7-106(10).

If two years has passed, the court may dismiss the protective order if it determines that the petitioner no longer has a reasonable fear of future abuse. The court weighs several factors in making this determination, all of which are listed in Utah’s Code 78B-7-115(1)(a)—(f).

If the order has been in effect for at least one year, the court may amend or dismiss the protection order if it finds that: “(1) the basis for the issuance of the protective order no longer exists; (2) the petitioner has repeatedly acted in contravention of the protective order provisions to intentionally or knowingly induce the respondent to violate the protective order; (3) the petitioner’s actions demonstrate that the petitioner no longer has a reasonable fear of the respondent; and (4) the respondent has not been convicted of a protective order violation or any crime of violence subsequent to the issuance of the protective order, and there are no unresolved charges involving violence conduct still on file with the court.” See Utah Code 78B-7-115(2)(a)-(d).

Resources

Utah Domestic Violence Council (udvc.org)

Utah’s Court Resources on Protective Orders (http://www.utcourts.gov/resources/forms/protectorder/forms.html#Request_Order)

 

Michael Hepworth

Michael Hepworth

Managing Attorney at Hepworth & Associates
Michael is the Managing Attorney of Hepworth & Associates, LLC.
Michael Hepworth

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