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Tag: 78B-7-106. Protective orders–Ex parte protective orders–Modification of orders–Service of process–Duties of the court.

Domestic Violence and Protective Orders: What do I Need to Know?

This blog post answers the following questions:

  • Do I qualify to get a protective order?
  • How do I obtain a protective order:
    • against an abusive partner, spouse or ex-spouse?
    • for a child?
    • against someone I’m dating or dated in the past?
  • How do I defend myself against a protective order?

Are protective orders criminal proceedings?

No. A victim of domestic violence petitions a court civilly for a protective order. Filing for a protective order does not create a criminal action.

A criminal charge does not need to be brought in order to seek a civil protective order, although often a victim of domestic violence may find that the police charged the alleged violent partner with a crime.

What do protective orders do?

A protective order is a court order that prohibits the perpetrator from committing violence against the victim, attempting violence against the victim, or threatening the victim with violence.

The protective order can also include protective provisions for the victim’s children, if there are children and the victim requests protection for them.

A protective order can also include, and usually includes, additional provisions that the perpetrator must not contact the other person at their home or place of business and must not harass them in any way.

In addition, a protective order can also:

  • direct that there be no further violent actions by the perpetrator;
  • no contact between the parties;
  • award temporary possession of the parties’ residence, vehicles, and other personal property to the protective order applicant;
  • award temporary custody of children to the applicant and parent-time (visitation) to the respondent; and
  • order the respondent to pay child support, if the parties’ have children and the court deems it appropriate to order that child support be paid,

if the court deems such additional orders appropriate.

Who Can Get a Protective Order?

How an adult can obtain a protective order.

Adults can obtain protective orders under the provisions of the Utah Cohabitant Abuse Act. Under the Cohabitant Abuse Act you may seek a protective order if you have been a victim of domestic violence at the hands of a “cohabitant”. Oddly enough, you don’t have to be living currently with someone to be considered a cohabitant for the purpose of obtaining a protective order. In some cases, you don’t have to have ever lived with someone to be considered a cohabitant for the purpose of obtaining a protective order. “Cohabitant” means a person who is 18 years of age or older who:

  • is or was a spouse of the other party;
  • is or was living as if a spouse of the other party;
  • is related by blood or marriage to the other party as the person’s parent, grandparent, sibling, or a mother- or father-in-law or daughter- or son-in-law
    • Note: whether step relationships (step-brother, step-father, etc.) are considered to be the same as blood relationships is not a question the Utah courts appear to have addressed or answered yet;
  • has or had one or more children in common with the other party;
  • is the biological parent of the other party’s unborn child;
  • resides or has resided in the same residence as the other party; or
  • is or was in a consensual sexual relationship with the other party.

“Cohabitant” does not include the relationship of natural parent, adoptive parent, or step-parent to a minor; or the relationship between natural, adoptive, step, or foster siblings who are under 18 years of age.

How a protective order can be obtained if you are seeking protection only for a child.

While an adult cohabitant can ask that his/her minor child(ren) be included when seeking a protective order against an adult cohabitant, if the only victim is a child or children, then then the protective order for the child has to be sought under the Title 78B, Chapter 7, Part 2 of the Utah Code, but not under the Cohabitant Abuse Act.

How to obtain a protective order against someone you’re dating or dated in the past.

If you are a victim of violence at the hands of someone you are dating, but are not living with, married to, or have children with, you can seek a “dating violence protective order” under Title 78B, Chapter 7, Part 4 of the Utah Code, the “Dating Violence Protection Act”.

The Process: Seeking or Defending Against a Protective Order

To obtain a protective order, you must first file a Request for a Protective Order with the court., and you must use the request forms the court provides.

If the Request for a Protective Order convinces the judge that immediate protection is needed, the judge will immediately issue a Temporary Protective Order.

The Temporary Protective Order takes effect as soon as a copy is served on the other party (the party against whom the protective order is sought is known as the Respondent) and will remain in place until there is a court hearing to determine whether the protective order should remain in place as a Final Protective Order.

A protective order hearing is intended to be held within 20 days of filing the request for protective order with the court.

The Hearing

At the protective order hearing, both parties will have an opportunity to present their respective sides of the story.

The Petitioner (the person seeking the protective order) has the opportunity to present evidence that domestic violence was committed, or that the Petitioner is in reasonable fear of domestic violence at the hands of the other party, the Respondent (the person defending against the request for a protective order).

The Respondent will have the opportunity to present evidence in his/her defense to show that domestic violence did not occur and that there is no reason for the Petitioner to fear for his/her safety.

The Effects of a Protective Order

Benefits to the Petitioner

If you are the victim of domestic violence, a protective order can be a major help in your efforts to free yourself from abuse. A protective order can help ensure your abuser stays away from you, your family, your home, workplace, church, and school. After the petitioner obtains a protective order, if the Respondent violates the order in any way, the respondent can be charged criminally.

Remember, however, that a piece of paper can’t stop bullets, knives, or fists. If the person against whom you have requested a protective order has no respect for the law, then a protective order may not be enough protection and you may need to get out of town and hide.

Detriments to the Respondent

The stakes are high for the Respondent in protective order proceedings for two main reasons.

First, if a protective order is entered, it can have lasting effects one one’s reputation and standing in the community. If protective order is issued against you, it can lead to you losing your employment and/or to having difficulty finding employment (nobody wants a violent person on the payroll). A protective order can cause your family members, friends, neighbors, and fellow church members to shun you. It can lead to you being barred from your child’s school, church, athletic events, and even from the doctor’s office or hospital where your child is being treated.

A protective order can have lasting adverse effects on the Respondent including, but not limited to:

  • forcing you to move out of your home (if you previously shared a home with the Petitioner);
  • separating from your children and being relegated to seeing your children just a few times a month, perhaps even under third-party supervision that you are ordered to pay for;
  • putting you at a disadvantage in any ongoing or future divorce or child custody proceeding with the Petitioner by being branded as the abusive “bad guy”;
  • losing your job or having a harder time getting a job—having a protective order entered against you is information that can be accessed by current and future landlords and employers;
  • risk for deportation, if you are an immigrant in this country;
  • depriving you of the right to own, possess, purchase, or even use a firearm; and
  • appearing in the State’s domestic violence database.

Second, a protective order cannot be changed or dismissed without the court’s approval. Even if the Petitioner is willing to have the protective order dismissed, the protective order cannot be dismissed unless the court feels it safely can be dismissed. And final protective orders last forever, unless and until dismissed by the court.

How Do I Defend Myself Against a Wrongfully Sought Protective Order?

The first step in defending against a protective order that is wrongly sought against you is to ensure that you know the date, time, and place of the hearing on the application for protective order. This hearing is your opportunity to explain your side of the story, present your defenses, and make the case as to why a protective order should not be entered against you. If you fail to attend the hearing, it is all but certain that the protective order will be granted.

In preparing for the protective order hearing, you won’t be given much notice or time to prepare.

Gather any evidence you can that might aid in your defense.  This might include pictures, emails, text and phone records, letters, recordings or GPS records.  Anything that will help prove your defense can be valuable in this hearing.

Finally, the protective order hearing is incredibly important, and may be your only opportunity to defend against a protective order before it is entered, it is a good idea to consider hiring a good attorney to present your best case at this hearing.

How Do I Get a Protective Order Dismissed, or Modified?

Once the court enters a protective order, your options are to (1) request that a protective order be changed, or (2) request that a protective order be dismissed.

To modify the protective order, you must submit a Request to Modify Protective Order.  You may want to change a protective order to adjust parent-time (which is sometimes included in the order), or adjust some of the terms of the order for good cause.

If you would like to have a protective order dismissed, you must submit a Request to Dismiss Protective Order.  This request will be followed by another hearing, in which the parties and the Commissioner will meet again to determine whether the order is still necessary. If the Petitioner no longer indicates that he/she fears for his/her safety, the order may be dismissed.

If you have questions about seeking or defending against a protective order, contact a skilled and experienced attorney; it’s worth the effort and worth the money.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Why can someone get a restraining order against me, but still contact or communicate with me?

Why can someone get a restraining order but still see the person she put in on and have videos, texts, and calls? Can they get in trouble or arrested for being around the person she put the restraining order on?

There is clearly a need for restraining order (also known as “protective order”) statutes. There are vulnerable people out there who would be victimized by crazy and/or evil people without the protection of the law.

But some jurisdictions take “better safe than sorry” to ridiculous, unfair lengths.

In Utah, where I practice law, the law is, inexplicably and inconsistently, that one can obtain a protective order (“protective order” is the term we use in Utah) yet not be restrained from initiating all kinds of contact and/or communication with the person against whom he/she obtained the protective order.

By way of example: “She” (yes, yes, men can apply for protective orders, but 1) women are the overwhelming number of protective applicants, whether they are genuine victims or maliciously wielding the protective order statute as a weapon; and 2) men are both discouraged from applying for protective orders, and when they do, they are, in a stunning display of sexism, frequently not believed, so we’ll refer to the applicant as a woman for the purposes of this discussion) can apply for an obtain a protective order against “Him” that contains prohibitions like these:

  • prohibit Him from harassing, telephoning, contacting, or otherwise communicating with Her, directly or indirectly;
  • order that He is excluded from Her residence and its premises, and order Him to stay away from Her residence, school, or place of employment , or any specified place frequented by Her and any designated family or household member of Hers.

Yet there is nothing in Utah law to prevent Her, after obtaining the protective order against Him, from:

  • telephoning, contacting, or otherwise communicating with Him, directly or indirectly;
  • from coming to His residence, school, or place of employment , or any specified place frequented by Him and any designated family or household member of His.

Under these circumstances, the problem that thus can arise (and all too often does arise) is that She will call or text or visit Him suggesting they talk or meet to “make up”. The poor guy thinks, “Great, She wants to put this behind us. So do I. Of course I’ll talk and/or meet with her. After all, it’s her idea, so if she wants to talk and/or meet (or have sex, etc.) with me, I can’t be blamed for accepting the invitation, right?”

Wrong.

It happens all the time in Utah: if She invites him to come over and talk (or have sex, etc.), so He cheerfully obliges, only to have his actions constitute a “violation” of the prohibitions against “contacting, or otherwise communicating with Her, even though it was her idea, her invitation, her enticements.

For years there have been efforts to include in Utah’s protective order statutes a provision that would make situations like this a defense to charges of violating a protective order, but they get shot down with the argument that such provisions would “expose the victim to unnecessary risk” or (my favorite) “have a chilling effect on applying for protective orders”. Its’ nonsense, but that’s the reason why.

Things are slowly getting better. One recent change to the protective order law now protects Him from being barred from his job, school, or church if She works at the same place or works at the same place or worships at the same place He does.

Eventually I believe Utah’s law will be amended to include the defense of “I was enticed” and will also punish Her if she entices Him for the purpose of setting him up (framing him) for a “violation” of the protective order.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Why-can-someone-get-a-restraining-order-but-still-see-the-person-she-put-in-on-and-have-videos-texts-and-calls-Can-they-get-in-trouble-or-arrested-for-being-around-the-person-she-put-the-restraining-order-on/answer/Eric-Johnson-311

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