Protective Orders in Utah are governed by the Cohabitant Abuse Act which begins with section 78B-7-101 of Utah Code Annotated.
Any victim of past or potential future violence or abuse by a current or past “co-habitant” may request a protective order from a Utah district court. “Co-habitant” really means that you have either lived with that person or that you are related by blood, marriage, or through a child out of wedlock. The court does not charge for the filing of a protective order and most district courts have an office that will assist you in the preparation of documents, to file the documents, or serve the documents- all for no charge. If you use a lawyer to argue or defend a protective order filing, that lawyer will probably charge attorneys fees.
A protective order is only appropriate when there is fear of physical harm to a person. While verbal abuse and harassment can be very traumatizing, it is not appropriate to address those issues using a protective order; rather, you may wish to get a civil injunction (a restraining order).
A protective order will affect the civil rights of the other person (the Respondent) and should not be taken lightly. The court severely frowns on people who use protective orders for strategic positioning in a divorce or custody action. The existence of a protective order can effect a Respondent’s right to carry or own a firearm under State and Federal law, a Respondent’s ability to have security clearances for jobs and government contracts, and a Respondent’s ability to maintain certain types of employment. If you are not in threat of physical harm, talk to a lawyer about other options available to you. However, if you are in threat of physical harm, do not hesitate to go to the court and use their free services to pursue a protective order.
Many initial protective orders are “Ex Parte” which means that you have approached the court without waiting for the other side to have an opportunity to speak or defend. That means that the Respondent will have a hearing within 20 days so that he or she can defend himself, but often the protection is ALREADY IN PLACE and you are protected from that Respondent prior to the hearing. This is so that you do not need to fear retaliation in the interim period of time. Be sure that you know whether the document you receive from the court provides IMMEDIATE protection or not.
If an adult is seeking protection of a child, they should seek a “child protective order,” which is different than an adult protective order. An adult protective order may include a designation of TEMPORARY custody of a child but that is temporary at best. If your child is in danger, get a separate child protective order.
How to file
An applicant for a protective order must file five (5) documents with the district court to get the ball rolling. These documents can be prepared by an attorney or by the applicant using the court’s assistance.
Once the documents are filed, the Judge will review the application for protection. If the court agrees that you are at risk of physical harm, the Judge may sign a temporary (Ex-Parte) protective order. The temporary order will include a hearing date that should occur within the following twenty (20) days. This temporary order will be in effect immediately. You will be protected and if the Respondent violates the protection, there may be criminal penalties.
The Court will then turn the documentation over to the Sheriff’s Office to serve on the Respondent. Proof of service must be provided to the court before a hearing can go forward. If the Respondent is not served, then the hearing will be continued and the temporary order will be extended. When the Respondent is served the Protective Order, he or she is told that that the protection is in place and that they are not to contact you. An “emergency packet” will be given to the applicant in case there is an emergency prior to service of the protective order. This packet should be turned over to the local police department for immediate assistance.
The temporary order can entitle the applicant to temporary possession of children and dictate parent time, personal and real property, can prevent the shutting off of utilities or services, and can prevent any and all contact.
**The Applicant should keep a certified copy of the order on his or her person at all times. It is best to have multiple copies in your car, at home, and at work.**
What to Expect at the Hearing
Be prepared. Have affidavits from witnesses who have actually observed past abuse or were present when Respondent threatened you. If possible, have the dates of past physical harm or threats. Be able to articulate to the court WHY you are in fear of harm. While the rules of evidence are somewhat relaxed in protective order hearings and the hearing is not a full blown trial, SOME courts may require that you take the witness stand and tell the court your history and why you are in danger. Whether you are put on the stand or not, either way you are under oath to present the court with the truth. Even if you have an attorney, you should prepare a written statement of the history of abuse, the current threat of danger, and also let the court know why you have come to the court for relief NOW. Sometimes the court is suspicious if there is a history of abuse that has never resulted in a phone call to police or otherwise be witnessed- be prepared to explain all aspects of your history with Respondent so that the judge is clear.
After the court accepts argument and testimony, the judge will either deny the request for protection (canceling the Ex Parte Order) or the Judge will enter an order granting protection.
There are civil and criminal parts to the court’s order. Law enforcement should enforce the criminal portions, but may not choose to enforce the civil portions. In that case, you would have to bring a civil contempt action for those civil violations.
Appealing, Amending and Changing the Protective Order
If a party wishes to appeal the Court’s order or denial of an order, he or she can do so.
If your protective order hearing was before a Court Commissioner, then an objection must be filed within ten (10) days of entry of the commissioner’s order (which is usually issued directly from the bench at the hearing). Then an evidentiary hearing will be scheduled before the presiding Judge in that court.
If a Judge enters the initial order, then a standard appeal to the Utah Court of Appeals must be made within thirty (30) days.
The civil portions of the protective order are only good for 150 days (unless the court’s states otherwise), after which they are unenforceable so that any other existing orders regarding property or children take effect. In other words, if you need issues of custody, property, money, or other divorce-type issues to be dealt with, you should do so as soon as possible through your divorce action as a Protective Order will not last long on these issues and is only intended to deal with emergency situations.
The criminal provisions will last two years. After two years the Respondent may file a request that the order be dismissed, and you would have an opportunity to respond if you felt that the situation was still dangerous. The protected party may request that the Court amend the current order or may request dismissal at any time.
A protected party should always contact their local law enforcement agency to report any violation of the protective order. While Protective Orders are not mutual and you may not be restricted from contacting or seeing Respondent, do not muddy the waters. If the Respondent has been ordered to stay away from you or not contact you, you are only hurting your own case if you contact or approach the Respondent. The court believes that if you are in fear, you will stay away completely.
Protective orders are enforceable in other states under the Full Faith and Credit clause of the Constitution and under Utah’s Uniform Interstate Enforcement of Domestic Violence Protection Orders Act. However, if you are residing in the new state or spending a lot of time there, it is best to “register” the protective order in that state by filing a certified copy of that order in the district court.
If you have additional questions on protective orders, please contact us at 801-746-6000 to schedule a consultation.