An act of domestic violence could lead to civil court action, criminal court action, or both.
So first, let’s make sure you understand the difference between civil and criminal court processes. If someone applies for a restraining order, protective order, or civil stalking injunction, then those are either exclusively or typically civil court matters. Because they are filed in civil court that means the person seeking relief from the court files against the person from whom he or she is seeking protection. The person seeking relief is called the petitioner. The person from whom the petitioner is seeking protection is called the respondent.
The petitioner can file and can decide to withdraw his or her request for help. However, in criminal court the state of Utah, or a county or city is charging someone with a crime. The victim, the person to be protected, can’t file criminal actions, only the state, county, or city can, and only they can decide whether the charges will be dropped.
Acts of domestic violence can result in civil action, criminal action, or both, if the incident meets the requirements for civil and/or criminal action. The terminology we use can often be confusing for parties, in part because many terms mean the same thing. Restraining order, protective order, ex parte, emergency protective order, stalking injunction; all are used to describe the same or similar processes. These terms refer to orders that you can request from the court if you are in fear for your safety.
Now let’s talk about temporary restraining orders. As I mentioned, they can be filed in civil court voluntarily by you or your spouse or cohabitant. You can get a temporary restraining without notice to the respondent or his or her attorney only if you can persuade the court that it’s clear, from specific facts you can show, that immediate and irreparable injury, loss, or damage will result to you before the respondent can be heard by the court in opposition, and if you certify to the court as to the efforts you made to give notice and the reasons why you claim that advance notice should not be required.
If a temporary restraining order is issued without notice (known as being issued “ex parte,” which means “without notice to the opposing party first”) it will expire by its terms after 14 days or less, as the court fixes, unless you can show good cause to extend it or the respondent consents that it may be extended for a longer period.
If a temporary restraining order is granted, the motion for a preliminary injunction must be scheduled for hearing at the earliest possible time. If you cannot show entitlement to a preliminary injunction, the court must dissolve the temporary restraining order. To show entitlement to a preliminary injunction that means you have to establish four things: 1) that you will suffer irreparable harm unless the order issues; 2) the threatened injury to you outweighs whatever damage the proposed order may cause the respondent; 3) the order would not be adverse to the public interest; and 4) there is a substantial likelihood that you 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 moral of this story? Temporary restraining orders hold you to a high standard of proof if they are going to stick.
You can also help protect yourself by filing a request for a protective order with the court. A protective order can: order the respondent not to harm the petitioner, the petitioners children or anyone who lives with the petitioner; order the respondent to stay away from the petitioner and the petitioners home, job, vehicle or school, and not to contact or harass the petitioner in any way; order the respondent not to have any guns or other weapons; order temporary possession of the home, car and essential personal property; order temporary custody, parent-time and support for the children; order temporary spousal support if the petitioner and respondent are married; and order your children, if you have children, not to be removed from the State of Utah.
If the respondent disobeys a protective order he or she can be arrested or cited, and then fined, jailed, or both. It is very important to remember that even if your spouse or boyfriend or girlfriend claims to want to meet or talk on the phone or get back together, if the protective order against you prohibits any of those things, you can almost surely will be cited for violating the protective order.
It is no defense to a protective order violation that the petitioner solicited contact with you. Some opportunistic protective order recipients will get a protective order and then try to lure you into talking on the phone or coming to the house or meeting at the park. Then the police are called to set you up for a protective order violation citation or arrest. So once you have a protective order against you, you must follow it to the letter. No exceptions. Seriously.
Although a protective order can do many things besides offer protection (such as awarding you temporary child custody, child support, spousal support, and possession of your residence or certain personal property or vehicles), a protective order is not a substitute for divorce. Permanent child custody, parent time and support and permanent division of property require a divorce decree or other final court order.
A petitioner can get a protective order if the petitioner and respondent are at least 16, married or emancipated, if he or she can persuade the court that the respondent has harmed the petitioner (that he or she is afraid the respondent will harm her or him), if the petitioner and respondent are related, live with, or used to live with each other, are parents of a child together, or if the petitioner is pregnant by the respondent. There is no fee for requesting a protective order. You have to fill out forms, file them with the court, and attend court hearings.
If the petitioner and respondent are under 16 and not married or emancipated, an adult can ask for a child protective order. If the petitioner doesn’t qualify for a protective order, s/he may still be able to get a stalking injunction.
You can hire an attorney to help you prepare and file the documents for requesting a protective order, or you can use forms for requesting a protective order that are available through the court system online or at any district courthouse https://www.utcourts.gov/abuse/forms.html (and many domestic violence shelters). You can also dial 211 for the domestic violence advocate office.
After completing the forms, you take the completed forms and identification to the clerk’s office in the district courthouse in the county where you or the respondent live or where you allege the abuse took place. Once you establish your identity for the clerk, the clerk will assign you a case number and a judge. You then take your documents to a judge for an ex parte hearing. If the request for a protective order convinces the judge that an immediate protective order is needed, the judge will sign a temporary protective order. The temporary protective order starts as soon as the sheriff serves a copy on the respondent and lasts until the court hearing for the final protective order. The judge can extend the temporary protective order if the respondent has not been served before the hearing or if there is some other delay. The court clerk will then give you a copy of the temporary protective order and provide a copy of the temporary protective order to the county sheriff or constable to serve on the respondent. The temporary protective order is also entered in the Statewide Domestic Violence Network so it can be accessed by all law enforcement agencies in Utah.
Even if the judge does not enter a temporary protective order, the petitioner still has a right to a hearing for a final protective order and should try to present more evidence at that hearing, so the petitioner will have to decide whether to request a hearing for a final protective order or to dismiss the petition. To request a hearing if an ex parte protective order is not granted, the petitioner must file a Request for Hearing form with the court. The court will notify the petitioner of the hearing and have the respondent served with the petition and notice of the hearing. There will be no temporary protective order in place during this time.
The hearing for the final protective order is about 20 days after the request is filed. If the respondent has not been served with a copy of the temporary protective order before the hearing, the petitioner should still attend the hearing and request an extension, or the case will be dismissed. If the judge enters a final protective order, the clerk will give the petitioner a copy. If the respondent is at the hearing, the clerk will give the respondent a copy. If the respondent is not at the hearing, the sheriff will serve a copy. There are two parts to the final protective order: civil and criminal. The civil part lasts for 150 days from the date the judge signs the order. The criminal part lasts indefinitely, unless the respondent requests that it be dismissed after 2 years, although the petitioner and respondent can ask the judge to lengthen or shorten these times, good reason can be shown for doing so.
A temporary or final protective order cannot be changed or dismissed without the judge’s approval. Remember, if the respondent does something that the order prohibits, he or she might be arrested, even if the petitioner consented to it.
If you want to change the protective order you must file a Request to Modify the Protective Order. If you want to dismiss the protective order, you must file a Request to Dismiss the Protective Order. The court will not dismiss the final protective order in the first two years without the petitioner’s written and sworn approval.
The parties will be notified of any request to dismiss or modify, AND they must notify the court if they move from their original residence to a new one.
The parties may hire their own attorneys or represent themselves in protective order proceedings.
If you are an adult seeking a protective order only for a child and not for you and a child together, then if the child is under the age of 18, there are forms for child protective orders available to you through the juvenile courts. The process for obtaining a child protective order to the juvenile courts is similar, but not exactly the same as the process for a protective order for an adult or someone 16 years of age or older.
If you don’t qualify for a protective order, you may qualify for a civil stalking injunction.
A person is said to have stalked you if that person did three things: 1) stayed physically or visually close to you, or made threats directed at you; 2) knew or should have known that the stalking would cause a reasonable person to be emotionally distressed or to be afraid of being physically hurt; and 3) actually made you or an immediate family member emotionally distressed or afraid of being physically hurt; and engaged in these acts of stalking two or more times. By the way, an “immediate family member” means your spouse, child, sibling, or any other person who lives with you now, or who lived with you within the past 6 months.
Note that unlike with protective orders, in addition to your own statements in the Civil Stalking Injunction Request, you must provide some other evidence of stalking, like police reports, sworn statements from witnesses, audiotapes, photos, letters, or the like. The court can order the respondent (the person who is stalking you): not to stalk you, not contact or go near you, and not go near other people listed in the order. Civil stalking injunction application forms are available at your local district courthouse or you can get them online at the Utah Courts website: https://www.utcourts.gov/resources/forms/civilstalking/
Once you have filled out the court forms for civil stalking injunction, you take them to the court clerk in the county where you or the respondent lives or where the stalking took place. There is no charge by the courts to file a request for civil stalking injunction.
A civil stalking injunction can last up to 3 years. The civil stalking injunction respondent may request a hearing, but if he or she does not request a hearing, the civil stalking injunction will issue without one. If a hearing is requested, it is your burden as the civil stalking injunction petitioner to prove by a preponderance of evidence that stalking by the respondent has occurred. Violation of the civil stalking injunction is a crime, and it can also be punished by contempt of court on the civil side. This is been a brief overview of various orders of protection and levels of protection available to you through the Utah courts.
We encourage you to learn more about your options by viewing the videos and reading the other articles on our website.
Utah Family Law, LC | 801-466-9277