How can I get a temporary restraining order in Utah?

 

The Fourteenth Amendments of the United States Constitution protects every individual’s right to Due Process. Oftentimes this is translated as a party’s right to notice and an opportunity to be heard.

In extreme circumstances, Utah Courts may grant a Temporary Restraining Order as a form of relief when they determine there will be irreparable injury to a party if they do not act. This relief is also applicable in Domestic Law cases. Normally, a motion in a domestic action is governed by Utah Rules of Civil Procedure 101. The rule requires a party seeking relief to file a motion with the court, together with all supporting documentation, in order to receive a hearing date. The motion must be served on the opposing party a minimum of 28 days before the hearing. Absent an additional rule, these strict requirements would prevent the court from acting, even in emergency situations.

Fortunately, Utah Rules of Civil Procedure 65A give the court power to grant orders without waiting for the 28 days to expire or official service of the Motion on the opposing party to be made. Due to the increased possibility of abuse, the standard for the court granting such relief is quite high. The party requesting relief must show that irreparable injury, loss, or damage will result if the court does not act. 65A(e) provides the grounds for the issuance of a temporary restraining order. They are as follows: (1) The applicant must show they will suffer irreparable harm unless the order issues; (2) The threatened injury to the applicant outweighs whatever damage the proposed order or injunction may cause the party restricted or enjoined; (3) The order or injunction, if issued, would not be adverse to the public interest; and (4) There is a substantial likelihood that the applicant will prevail on the merits of the underlying claim, or the case presents serious issues on the merits which should be the subject of further litigation. The moving party must satisfy all of these elements, three of the four is not sufficient.

If an applicant is successful in seeking a Temporary Restraining Order, the court will set a hearing on the underlying motion for the soonest possible date. Because these are granted on an emergency, and temporary basis, where the opposing party was not given adequate time to mount a defense to the allegations, justice requires a full hearing be held to make sure all evidence is considered.

Though a Temporary Restraining Order is difficult to get, is not a permanent form of relief, and not appropriate for every case, when the facts support it, a Temporary Restraining Order may be the only way to prevent injury in extreme cases, especially in situations as important as domestic matters.

Michael Hepworth

Michael Hepworth

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

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