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Tag: divorced

How long after my divorce am I considered single?

I can’t speak for all jurisdictions, but for the jurisdiction where I practice divorce law (Utah), the answer is that you are considered single as soon as the court issues its decree of divorce. 

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

https://www.quora.com/How-long-after-my-divorce-am-I-considered-single/answer/Eric-Johnson-311

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When did you know that divorce was the option you were going to choose?

When did you know that divorce was the option you were going to choose?

First, make sure that if you reach the conclusion that you need a divorce that you really do need a divorce. Clearly, a marriage that, through no fault of your own, threatens your life, health, or safety is a marriage you don’t have wonder is worth staying in another moment. But in every other situation, divorce is not a decision to take lightly.

Some people think they need a divorce when they do not. They mistakenly believe that a divorce will be the solution to problems that the marriage is not causing or a solution to problems the marriage is causing when there are better solutions than divorce (many people have told me after their divorce that they wish they had not taken such drastic measures and had tried harder to save their marriage because they realized that 1) the marriage was worth saving and they didn’t “know what they got till It’s gone” and/or 2) divorce only made matters worse).

Even if you do not believe that individual counseling or therapy and/or marriage and family therapy will work for you and your spouse (or your whole family, if that’s a concern), you do not want to live with the regrets that come from wondering “what might have been”. Start reading the scriptures and going to church. Seek wisdom, guidance, and help beyond your own abilities (even if you think it’s a stupid idea, try it before you reject it out of hand). Before taking the drastic, painful, scarring, costly, and permanent step of divorce, try to find out whether the problem(s) in your marriage and family lie(s) with something than your spouse. Try to find out if the problem(s) can and should be solved without divorce. If, after taking these steps, you honestly conclude that your marriage cannot be salvaged, that is when you can and should file for divorce confident in your choice.

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

https://www.quora.com/When-did-you-know-that-divorce-was-the-option-you-were-going-to-choose/answer/Eric-Johnson-311?prompt_topic_bio=1

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I was divorced and lied to during my divorce and I am disabled can I take my ex back to court for spousal support?

I was divorced and lied to during my divorce and I am disabled can I take my ex back to court for spousal support?

Can you try? Yes. Will you succeed? Probably not. Unless you can prove (not persuade, but demonstrate by objectively, independently verifiable proof) that your ex-husband defrauded the court, you’re likely stuck with the decree and court orders you’ve got. This is extremely difficult in its own right. This is also extremely expensive and most people don’t have that kind of money.

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

https://www.quora.com/I-was-divorced-and-lied-to-during-my-divorce-and-I-am-disabled-can-I-take-my-ex-back-to-court-for-spousal-support/answer/Eric-Johnson-311

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I was divorced and lied to during my divorce and I am disabled can I take my ex back to court for spousal support?

I was divorced and lied to during my divorce and I am disabled can I take my ex back to court for spousal support?

Can you try? Yes.

Will you succeed? Probably not.

Unless you can prove (not persuade, but demonstrate by objectively, independently verifiable proof) that your ex-husband defrauded the court, you’re likely stuck with the decree and court orders you’ve got. This is extremely difficult in its own right. This is also extremely expensive and most people don’t have that kind of money.

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

https://www.quora.com/I-was-divorced-and-lied-to-during-my-divorce-and-I-am-disabled-can-I-take-my-ex-back-to-court-for-spousal-support/answer/Eric-Johnson-311

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Would a child deal better with constantly fighting or divorced parents?

“Do you think a child would deal better with constantly fighting parents or divorced parents?” I have been asked to answer this question, but as a divorce lawyer (not someone who is divorced himself), I did not want to answer it without also getting the input of divorced parents.

I put the question out on Facebook and between me those divorced parents, here are our various answers.

One parent noted:

“I think it’d be situational. Totally situational. If, for example, one of the parents has borderline personality disorder or narcissistic personality disorder and would alienate the children post-divorce, it’s better to stay married.

If, however, for example, the parents are both otherwise reasonable people who just can’t get along with each other, but can set their differences aside and put their kids first post-divorce, then a divorce might be a better option after other options have failed (such as counseling, etc.).

The problem when dealing with a borderline or narcissist: the reasonable/targeted parent often doesn’t know who they’re really dealing with until it’s too late.”

Another parent saw it this way:

“The kids are better off if their parents get divorced. If a parent is staying together for the kids, the marriage will end up failing anyway, and then the kids will just say that you were a spineless coward. Another reason is staying just prolongs pain. Life goes fast. No sense wasting any minute in suffering.”

The third parent stated:

“Short term, yes. In my situation, my older son was relieved when his mother left and specifically noted how peaceful our home felt without her there. But my younger son, who was barely 3, was affected in ways that still cause problems for him 10 years. That being said, I think it’s a little bit of a copout for a couple (barring repeated infidelity or actual abuse) to use this as an excuse not to grow the hell up and go through whatever work it takes to make the marriage they chose to enter into work and provide a stable, loving home for the children they chose to create.

When my ex and I were dating, she specially noted how hard it was when her parents divorced, and the struggles she went through because of it. But once she started feeling like she wanted out, she often mentioned how ‘happy’ she was once her parents divorced and her dad was out of the picture. It was night and day, so I am biased in feeling like that particular line of thinking can be an excuse, rather than a legitimate reason.”

Finally, here is my two cents’ worth:

I would not wish a divorce on my worst enemy. With extraordinarily rare exception, divorce is miserable for every member of the family, especially the children.

More than one person has told me that if he or she had known what divorce would do them and to their kids they might have stayed married or at least tried everything humanly possible to make the marriage work before getting a divorce.

Clearly, you don’t need to worry about trying to “save” a marriage in which there is serious physical violence. Yes, I said serious physical violence against you or the children. If, however, you want to claim you’re a domestic violence victim because your spouse pushed you of the way to get out the bedroom door you were blocking, you’re not abused, you’re a bit of a jerk and a bit of a wuss. Rather than pouring your energy into claiming victim status, work on yourself and work on your marriage.

Marriage is hard work. Even for two normal, loving, peaceful people, marriage is hard. And still worth it, if you do the work required to make your marriage a good one. If you’ve given all you can but your spouse won’t meet you half way, you will not regret giving your marriage every last reasonable effort and chance before you file for divorce. A clear conscience helps ensure clear judgment when you make the choice to divorce.

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

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Would/did you sign a prenup when you got married?

I did not.

I generally do not favor young couples marrying for the first time making and signing prenuptial agreements.

Here is why:

Does signing a prenup change the relationship between a couple?

What is the easiest way to convince your fiancé to agree a prenup?

Would most people who are planning to get married do better if they got a prenup?

Is it necessary to ask your other partner to sign a prenup if you want your property to solely belong to you only?

Does it affect a relationship if just before marriage, your partner and a lawyer bring you papers to sign a prenupcial agreement? What would you do?

Do you believe a prenuptial agreement and real love between two people are mutually exclusive?

Do regular people who earn average incomes sign prenuptial agreements?

Can a prenup dictate that a reflection time is required before divorce?

Why would anyone go into marriage without a prenup?

How do people generally react if asked to sign a prenuptial agreement?

Why are prenuptial agreements not required for all marriages prior to getting a marriage license since divorces are about dividing assets and determining child custody/support? Wouldn’t this help make divorces easier and help avoid doomed marriages?

Does having a prenup demonstrate lack of trust in your future marriage?

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

https://www.quora.com/Would-did-you-sign-a-prenup-when-you-got-married/answer/Eric-Johnson-311

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2019 UT App 202 – State v. Baize – protective order challenge

2019 UT App 202 – THE UTAH COURT OF APPEALS

STATE OF UTAH, Appellee,
v.
NATHAN DAVID BAIZE, Appellant.

Opinion
No. 20180326-CA
Filed December 12, 2019

Fourth District Court, American Fork Department
The Honorable Roger W. Griffin
No. 161100835

Douglas J. Thompson, Attorney for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1           Nathan David Baize appeals his convictions for violating a protective order. We affirm.

BACKGROUND[1]

¶2           Baize and his former wife (Victim) were married in 2010 and divorced in 2014. Victim had sole physical custody of their child and shared joint legal custody with Baize. After enduring several instances of verbal and physical abuse, Victim sought a protective order against Baize. The court issued a protective order after a hearing, at which Baize was present, directing Baize not to “commit, try to commit or threaten to commit any form of violence” against Victim, including “stalking, harassing, threatening, physically hurting, or causing any other form of abuse.” Baize was also ordered, “Do not contact, phone, mail, e-mail, or communicate in any way with [Victim], either directly or indirectly,” with the exception that Baize could email Victim about their child, provided his communications were “civil in nature.”

¶3           After the entry of the protective order, Baize sent numerous emails to Victim that were not about their child, not civil in nature, and arguably abusive. Much of the content of the emails was directed toward Victim’s qualities and character. Baize sent emails to Victim telling her that she was a “spoiled brat,” “lazy,” “irresponsible,” “vindictive,” “selfish,” “uncooperative,” “incapable,” “fake,” and lacking “integrity.” Baize also sent emails to Victim telling her to “[u]se your brain blondie,” to “[k]eep it simple stupid, [Victim’s name],” and that he was “sick and tired . . . of [Victim’s] blonde, lazy, messed up approach to cooperation.” Additionally, on several occasions, Baize threatened to call the police for “custodial interference charges.”

¶4           On another occasion, Baize emailed Victim—with a copy also sent to Victim’s new husband—complaining about Victim and alleging that Victim engaged in certain improprieties during their marriage. Victim’s husband spoke to Baize at length and told him that he “need[ed] to stop the belligerent, degrading emails to [Victim].” Baize responded that his emails “will never stop.” Furthermore, Baize told Victim that she was “a weak, weak person” because she would “construe [his email comments] as personal attacks.”

 

¶5        The content of Baize’s emails to Victim prompted the State to charge him with four counts of violating a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018). These charges were enhanced from misdemeanors to third degree felonies because Baize already had a prior conviction for violating the same protective order. See id. § 77-36-1.1(2)(c) (Supp. 2019) (describing enhanced penalties for violating a protective order). Baize moved to dismiss the charges, arguing that the protective order was an unconstitutional prior restraint of speech and that requiring his emails to be “civil in nature” was unconstitutionally vague. Baize also asked the court to give the jury an instruction defining the terms “harassing,” “threatening,” and “abuse” in the protective order as “forms of violence or threats of violence.” The court denied both motions.

¶6        At trial, Baize stated that while the tone in his emails might indicate that he was “[f]rustrated,” “feeling dejected,” “[h]elpless, hopeless, [and] concerned,” the emails were never uncivil. Rather, Baize asserted that he was just being “honest” and “clear.” However, Baize also testified that he suspected Victim would be offended by the emails and that Victim was “weak” for reading his emails as insults. Baize also admitted that his emails were similar in tone and content to emails he had sent previously to Victim, which formed the basis of his prior conviction for violating the same protective order. The jury found Baize guilty of three counts of violating a protective order. Baize appeals.

ISSUES AND STANDARDS OF REVIEW

¶7        The first issue on appeal is whether the restriction in the protective order requiring that Baize’s communication with Victim be “civil in nature” rendered the order unconstitutionally vague or acted as a prior restraint on speech. “Whether [an order] is constitutional is a question of law that we review for correctness, giving no deference to the trial court.” State v. MacGuire, 2004 UT 4, ¶ 8, 84 P.3d 1171 (quotation simplified).

 

¶8           Baize’s second challenge on appeal is that the trial court erred in denying his request to instruct the jury on the “legal definitions” of terms in the protective order. This issue presents a question of law, and both parties agree that we review the trial court’s decision on this point for correctness. See State v. Dozah, 2016 UT App 13, ¶ 12, 368 P.3d 863 (“We review a district court’s refusal to give a requested jury instruction for correctness.”).

ANALYSIS

I. Constitutional Challenges to the Protective Order

¶9           At the outset, we must determine whether Baize is permitted, “in this criminal proceeding, [to] collaterally attack the protective order entered in the prior civil proceeding.” See State v. Hegbloom, 2014 UT App 213, ¶ 10, 362 P.3d 921. The State contends that as “a threshold matter, this Court should not address either constitutional claim because the collateral bar rule precludes Baize from challenging the validity of the protective order in a prosecution for violating that order.”

¶10 A collateral attack is “where a judgment is attacked in other ways than by proceedings in the original action to have it vacated or revised or modified or by a proceeding in equity to prevent its enforcement.” Olsen v. Board of Educ. of Granite School Dist., 571 P.2d 1336, 1338 (Utah 1977) (quotation simplified). “Under the collateral bar doctrine, a party may not challenge a district court’s order by violating it. Instead, [the party] must move to vacate or modify the order, or seek relief in an appellate court.” Iota LLC v. Davco Mgmt. Co., 2016 UT App 231, ¶ 13, 391 P.3d 239 (quotation simplified). “With rare exception, when a court with proper jurisdiction enters a final judgment, . . . that judgment can only be attacked on direct appeal.” State v. Hamilton, 2003 UT 22, ¶ 25, 70 P.3d 111.

¶11 The proper forum for a defendant to challenge a protective order’s terms is in the original action, not in a subsequent criminal case resulting from its violation. This court has already addressed this issue in Hegbloom, where we stated that a civil protective order is not subject to collateral attack and that there is “nothing fundamentally unfair in not allowing a litigant to challenge collaterally a judgment he could have challenged directly had he chosen to do so.” 2014 UT App 213, ¶¶ 15, 22; see also Olsen, 571 P.2d at 1338 (explaining that when an issue is erroneously decided, the proper remedy is to directly, rather than collaterally, attack it); Iota, 2016 UT App 231, ¶ 18 (“The proper method for contesting an adverse ruling is to appeal it, not to violate it.” (quotation simplified)). Courts in other jurisdictions are in accord.[2]

¶12 Thus, our precedent and that of other jurisdictions make clear that the collateral bar rule applies to situations in which a defendant seeks to attack the validity of a protective order in a criminal proceeding for addressing a violation of that same protective order. See State v. Winter, 979 A.2d 608, 615 (Conn. App. Ct. 2009) (“The collateral bar rule has been extended to apply to situations in which . . . the defendant seeks to attack the validity of a court order in a criminal proceeding, and the rule is justified on the ground that it advances important societal interests in an orderly system of government, respect for the judicial process and the rule of law, and the preservation of civil order.” (quotation simplified)).

¶13 Here, Baize was ordered not to “commit, try to commit or threaten to commit any form of violence” against Victim, including “stalking, harassing, threatening, physically hurting, or causing any other form of abuse.” The relevant portion of the protective order also provided the following prohibition: “Do not contact, phone, mail, e-mail or communicate in any way with [Victim], either directly or indirectly,” the only exception being that Baize could contact Victim “via email about Child,” provided the emails were “civil in nature.” Not only did Baize sign the protective order as a whole, but he initialed each provision of the order, including those he now challenges on constitutional grounds. Thus, at the outset and even before he signed it, Baize had the opportunity to seek clarification of any provision in the order that he believed was too restrictive or vague. And after the protective order was entered by the court, Baize still could have challenged the order on direct appeal. But he never did so. Instead, Baize raised his prior restraint and vagueness challenges to the protective order only after he was criminally charged a second time with violating the order.

¶14 Precedent—both that of Utah and other jurisdictions­ states that a defendant cannot attack the validity of a protective order in a prosecution for violating the order. And that is exactly what Baize attempts to do here. Thus, we conclude that Baize cannot collaterally attack a protective order arising from a civil proceeding in this criminal proceeding. Put simply, this is not the proper forum to address constitutional challenges to the protective order’s terms.[3]

II. Legal Definitions in the Protective Order

¶15 The protective order prohibited Baize from “stalking, harassing, threatening, physically hurting, or causing any other form of abuse” to Victim. Baize argues that the trial court erred when it denied his request to define for the jury certain “legal terms” contained in the protective order.

¶16 Jury instructions require no specific form as long as they accurately convey the law. “To determine if jury instructions correctly state the law, we look at the jury instructions in their entirety and will affirm when the instructions taken as a whole fairly instruct the jury on the law applicable to the case.” State v. Painter, 2014 UT App 272, ¶ 6, 339 P.3d 107 (quotation simplified); see also State v. Hobbs, 2003 UT App 27, ¶ 31, 64 P.3d 1218 (stating that jury instructions will be upheld when they “fairly tender the case to the jury even where one or more of the instructions, standing alone, are not as full or accurate as they might have been” (quotation simplified)).

¶17 Baize was charged with violating a protective order. See Utah Code Ann. § 76-5-108 (LexisNexis Supp. 2018) (stating that any person who is “subject to a protective order” and “who intentionally or knowingly violates that order after having been properly served” is guilty of a misdemeanor or felony, depending on the circumstances). The court instructed the jury that to find Baize guilty of violating the protective order, it would need to find beyond a reasonable doubt the following elements:

  1. Nathan David Baize;
  2. While subject to a protective order issued by a Utah Court;
  3. After having been properly served with the protective order;
  4. Intentionally or knowingly violated the protective order; and
  5. Is or was a cohabitant of the alleged victim.

¶18 Baize contends that the court erred when it denied his motion requesting a jury instruction that defined the terms “stalking, harassing, threatening, physically hurting, or causing any other form of abuse” as forms of violence or the threat of violence. Baize argues that “because the protective order only prohibits stalking, harassing, threats, and abuse insofar as these terms could mean violence or a threat of violence,” the definitions of those terms should be “limited . . . to that realm.” (Quotation simplified.) Specifically, Baize requested that the court instruct the jury on the definitions of harassment and physical harm as those terms are defined in Utah’s criminal code or in the Cohabitant Abuse Procedures Act. See Utah Code Ann. § 76-5-106(1) (LexisNexis 2017) (defining harassment as intentionally frightening or harassing another by communicating “a written or recorded threat to commit any violent felony”); id. § 77-36-1(4) (Supp. 2019) (defining domestic violence as “any criminal offense involving violence or physical harm or threat of violence or physical harm”).[4]

¶19 The violence-based definitional language Baize requested is not found in the protective order or in the statute he was accused of violating. But Baize asserts that because Utah Code section 76-5-108 does not define the terms in the protective order (namely, harassing and threatening), the court should have given the jury the statutory meanings of those terms pulled from other provisions of the criminal code instead of allowing the jury to rely on the general understanding of the terms. Baize’s argument misses the mark. He was not charged with harassing or any other violent behavior pursuant to a separate statute. Rather, he was charged pursuant to Utah Code section 76-5-108 with four counts of violating the protective order, and the jury instructions on those four counts closely tracked the language of that section. Moreover, Baize presents no evidence that the protective order adopted the specific violence-based statutory definitions he proposed.

¶20 We conclude that the trial court did not err when it denied Baize’s request that the jury be instructed using Baize’s restrictive definitions of certain terms and allowed the jury to determine whether Baize violated the protective order based on common definitions of the terms contained in the protective order.[5]

CONCLUSION

¶21 We hold that the proper forum for Baize to challenge the protective order was the original civil proceeding pursuant to which the order was entered. Because Baize had notice and the opportunity to appeal the protective order, he is barred from collaterally challenging it in the subsequent criminal proceeding resulting from its violation. We also conclude that the trial court did not err in denying Baize’s request to define for the jury certain terms contained in the protective order. Accordingly, the judgment of the trial court is affirmed.

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

———————–

[1] “On appeal, we recite the facts from the record in the light most favorable to the jury’s verdict and present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

[2] 2. Other jurisdictions also explicitly bar collateral attack in this context. See, e.g., State v. Grindling, 31 P.3d 915, 918–19 (Haw. 2001) (stating that a domestic restraining order is not subject to collateral attack in the criminal proceeding for its violation and collecting cases stating the same); Wood v. Commonwealth, 178 S.W.3d 500, 513 (Ky. 2005) (stating that a party “may not launch a collateral attack on the validity of an emergency protective order in a subsequent prosecution for violation of that order”); Truesdell v. State, 304 P.3d 396, 399 (Nev. 2013) (“[A] party may not collaterally attack the validity of a [protective order] in a subsequent criminal proceeding based on violation of the [protective order].”); Best v. Marino, 2017-NMCA-073, ¶ 18, 404 P.3d 450 (“The collateral bar rule precludes a restrained party from challenging the merits of [a protective order] after a finding of contempt.”); City of Seattle v. May, 256 P.3d 1161, 1165 (Wash. 2011) (en banc) (“The collateral bar rule precludes challenges to the validity . . . of a court order in a proceeding for violation of such an order except for challenges to the issuing court’s jurisdiction to issue the type of order in question.”).

[3] 3. Even if we were to conclude that Baize could attack the validity of the civil protective order here and agree with him that the “civil in nature” language in the protective order is unconstitutionally vague, Baize ignores the alternative restriction imposed on him by the protective order, namely that his communication with Victim must pertain to their child. Baize’s emails to Victim appear to have violated this provision.

Baize’s communications variously described Victim in unflattering terms and accused her of indiscretions. Indeed, our review of the record reveals that Baize’s emails to Victim are replete with examples of Baize directing his comments to Victim’s alleged attributes rather than a discussion of co-parenting needs or the needs of the child.

We find the argument that Baize’s comments took place in the context of communication about their child unpersuasive. Baize’s concerns regarding their child’s well-being or Victim’s parenting could have been effectively communicated without personal commentary about Victim. In fact, Baize admitted at trial that he was “[g]ambling on” Victim construing the comments he made in his emails as “personal attacks.”

[4] Baize also argues on appeal that the jury should have been instructed on the definition of stalking. But at trial, the State stipulated that the court would consider instructing the jury on the definition of stalking only “[i]f the State [brought] in evidence of stalking.” The State did not attempt to introduce evidence of stalking, and Baize did not again request that the trial court instruct the jury on the issue of stalking. Consequently, Baize waived this aspect of his argument below and cannot raise it on appeal. See State v. Johnson, 2017 UT 76, ¶ 16 n.4, 416 P.3d 443 (“Waiver, in the context of raising an issue before a court, is generally the relinquishment or abandonment of an issue before a trial or appellate court. . . . If an issue has been waived in the trial court, that issue is not preserved for appeal.”).

[5] 5. We resolve this aspect of Baize’s appeal by declining to apply strict statutory definitions, but we note that the language of the relevant provisions of the protective order was written broadly and did not suggest that Baize was prohibited from engaging in only physically violent behavior or in making threats of violence. Baize’s violence-based reading of the protective order’s terms conflicts with the public policy underlying the entire domestic violence statutory scheme:

Because of the serious, unique, and highly traumatic nature of domestic violence crimes, the high recidivism rate of violent offenders, and the demonstrated increased risk of continued acts of violence subsequent to the release of a perpetrator who is convicted of domestic violence, it is the finding of the Legislature that domestic violence crimes warrant the issuance of continuous protective orders . . . because of the need to provide ongoing protection for the victim . . . . [T]he court shall issue a continuous protective order at the time of the conviction or sentencing limiting the contact between the perpetrator and the victim unless the court determines by clear and convincing evidence that the victim does not . . . have a reasonable fear of future harm or abuse.

Utah Code Ann. § 77-36-5.1(6)(a)–(b) (LexisNexis Supp. 2019); see also State v. Hardy, 2002 UT App 244, ¶ 17, 54 P.3d 645 (“The state has an inarguably significant interest in protecting the health and well-being of its citizens. In furtherance of this goal, the state has created a mechanism whereby the victims of domestic violence may obtain civil orders of protection against their abusers. As part of this protection, the court may prohibit the abuser from having any contact, direct or indirect, with the victim or the victim’s family.”). Thus, the statute’s purpose is to protect domestic abuse victims from further abusive behavior in the broad sense, including psychological abuse and other forms of controlling behavior. Baize’s violence-based interpretation of the protective order’s terms appears to run contrary to the significant interest the State has in protecting the overall health and emotional well-being of its citizens.

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Will the court take seriously my desire to include in the divorce decree a provision that at no time should step-parents or a parent’s significant other be inappropriately dressed?

Question: Will the court take seriously my desire to include in the divorce decree a provision that at no time should step-parents or a parent’s significant other be inappropriately dressed?

Question Detail: My wife and I are separated now for 2 years. She served me papers because she said she never loved me and wanted a divorce. The paperwork has been all filed on my end but she still hasn’t completed her end of the paperwork. Well she has had a relationship now with a guy for 8 months. He is around my children almost every time. She has them (joint custody). She has posted pictures of him on a hike and swimming shirtless holding them with my girls on Facebook. They are ages 6 and 3. I find this to be inappropriate. Am I wrong? I have asked her not to let this continue because he doesn’t need to be skin to skin with my girls. I realize its outdoor pictures and it may appear harmless but to most people but these are my girls. I don’t even walk around or take pics like that with them. I want it to stop but she says there is nothing wrong with it. I need to know if I’m over reacting or if I make a valid case.

This is a common kind of question. This may answer your question, if you reside in Utah:

Utah Code § 76-9-702.5.  Lewdness involving a child. 

(1)        A person is guilty of lewdness involving a child if the person under circumstances not amounting to rape of a child, object rape of a child, sodomy upon a child, sexual abuse of a child, aggravated sexual abuse of a child, or an attempt to commit any of those offenses, intentionally or knowingly does any of the following to, or in the presence of, a child who is under 14 years of age:

(a)        performs an act of sexual intercourse or sodomy;

(b)        exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area:

(i)         in a public place; or

(ii)        in a private place:

(A)       under circumstances the person should know will likely cause affront or alarm; or

(B)       with the intent to arouse or gratify the sexual desire of the actor or the child;

(c)        masturbates;

(d)       under circumstances not amounting to sexual exploitation of a child under Section 76-5b-201, causes a child under the age of 14 years to expose his or her genitals, anus, or breast, if female, to the actor, with the intent to arouse or gratify the sexual desire of the actor or the child; or

(e)        performs any other act of lewdness.

(2)(a)   Lewdness involving a child is a class A misdemeanor, except under Subsection (2)(b).

(b)        Lewdness involving a child is a third degree felony if at the time of the violation:

(i)         the person is a sex offender as defined in Section 77-27-21.7; or

(ii)        the person has previously been convicted of a violation of this section.

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

Here are some more statutory provisions that may be of interest:

Utah Code § 76-9-702.  Lewdness.

(1)        A person is guilty of lewdness if the person under circumstances not amounting to rape, object rape, forcible sodomy, forcible sexual abuse, aggravated sexual assault, or an attempt to commit any of these offenses, performs any of the following acts in a public place or under circumstances which the person should know will likely cause affront or alarm to, on, or in the presence of another who is 14 years of age or older:

(a)        an act of sexual intercourse or sodomy;

(b)        exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area;

(c)        masturbates; or

(d)       any other act of lewdness.

(2)

(a)        A person convicted the first or second time of a violation of Subsection (1) is guilty of a class B misdemeanor, except under Subsection (2)(b).

(b)        A person convicted of a violation of Subsection (1) is guilty of a third degree felony if at the time of the violation:

(i)         the person is a sex offender as defined in Section 77-27-21.7;

(ii)        the person has been previously convicted two or more times of violating Subsection (1); or

(iii)       the person has previously been convicted of a violation of Subsection (1) and has also previously been convicted of a violation of Section 76-9-702.5.

(c)

(i)         For purposes of this Subsection (2) and Subsection 77-41-102(17), a plea of guilty or nolo contendere to a charge under this section that is held in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction.

(ii)        This Subsection (2)(c) also applies if the charge under this Subsection (2) has been subsequently reduced or dismissed in accordance with the plea in abeyance agreement.

(3)        A woman’s breast feeding, including breast feeding in any location where the woman otherwise may rightfully be, does not under any circumstance constitute a lewd act, irrespective of whether or not the breast is covered during or incidental to feeding.

Utah Code § 76-10-1227.  Indecent public displays — Definitions.

(1)        For purposes of this section and Section 76-10-1228:

(a)        “Description or depiction of illicit sex or sexual immorality” means:

(i)         human genitals in a state of sexual stimulation or arousal;

(ii)        acts of human masturbation, sexual intercourse, or sodomy;

(iii)       fondling or other erotic touching of human genitals or pubic region; or

(iv)       fondling or other erotic touching of the human buttock or female breast.

(b)        “Nude or partially denuded figure” means:

(i)         less than completely and opaquely covering human:

(A)       genitals;

(B)       pubic regions;

(C)       buttock; and

(D)       female breast below a point immediately above the top of the areola; and

(ii)        human male genitals in a discernibly turgid state, even if completely and opaquely covered.

(2)

(a)        Subject to Subsection (2)(c), this section and Section 76-10-1228 do not apply to any material which, when taken as a whole, has serious value for minors.

(b)        As used in Subsection (2)(a), “serious value” means having serious literary, artistic, political, or scientific value for minors, taking into consideration the ages of all minors who could be exposed to the material.

(c)        A description or depiction of illicit sex or sexual immorality as defined in Subsection (1)(a)(i), (ii), or (iii) has no serious value for minors.

Utah Code § 76-10-1228.  Indecent public displays — Prohibitions — Penalty.

(1)        Subject to the affirmative defense in Subsection 76-10-1208(3), a person is guilty of a class A misdemeanor who willfully or knowingly:

(a)        engages in the business of selling, lending, giving away, showing, advertising for sale, or distributing to a minor or has in the person’s possession with intent to engage in that business or to otherwise offer for sale or commercial distribution to a minor any material with:

(i)         a description or depiction of illicit sex or sexual immorality; or

(ii)        a nude or partially denuded figure; or

(b)        publicly displays at newsstands or any other establishment frequented by minors, or where the minors are or may be invited as a part of the general public, any motion picture, or any live, taped, or recorded performance, or any still picture or photograph, or any book, pocket book, pamphlet, or magazine the cover or content of which:

(i)         exploits, is devoted to, or is principally made up of one or more descriptions or depictions of illicit sex or sexual immorality; or

(ii)        consists of one or more pictures of nude or partially denuded figures.

(2)

(a)        A violation of this section is punishable by:

(i)         a minimum mandatory fine of not less than $500; and

(ii)        incarceration, without suspension of sentence in any way, for a term of not less than 30 days.

(b)        This section supersedes Section 77-18-1.

Utah Code § 76-10-1208.  Affirmative defenses.

(1)        It is an affirmative defense to prosecution under this part that the distribution of pornographic material is restricted to institutions or persons having scientific, educational, governmental, or other similar justification for possessing pornographic material.

(2)        It is not a defense to prosecution under this part that the actor is a motion picture projectionist, usher, ticket-taker, bookstore employee, or otherwise is required to violate this part incident to the person’s employment.

(3)        It is an affirmative defense to prosecution under Section 76-10-1206, 76-10-1227, or 76-10-1228 for displaying or exhibiting an outer portion of material, that the material is:

(a)        in a sealed opaque wrapper that covers at least the lower 2/3 of the material so that the lower 2/3 of the material is concealed from view;

(b)        placed behind a blinder rack; or

(c)        displayed in an area from which a minor is physically excluded if the material cannot be viewed by the minor from an area in which a minor is allowed.

Utah Code § 32B-1-504.  General requirements on attire and conduct.

The following attire and conduct on premises or at an event regulated by the commission under this title are considered contrary to the public health, peace, safety, welfare, and morals, and are prohibited:

(1)        employing or using a person in the sale, offer for sale, or furnishing of an alcoholic product while the person is in:

(a)        a state of nudity;

(b)        a state of seminudity; or

(c)        performance attire or clothing that exposes to view any portion of:

(i)         the female breast below the top of the areola; or

(ii)        the cleft of the buttocks;

(2)        employing or using the services of a person to mingle with patrons while the person is in:

(a)        a state of nudity;

(b)        a state of seminudity; or

(c)        performance attire or clothing that exposes to view any portion of:

(i)         the female breast below the top of the areola; or

(ii)        the cleft of the buttocks;

(3)        encouraging or permitting a person to:

(a)        engage in or simulate an act of:

(i)         sexual intercourse;

(ii)        masturbation;

(iii)       sodomy;

(iv)       bestiality;

(v)        oral copulation;

(vi)       flagellation; or

(vii)      a sexual act that is prohibited by Utah law; or

(b)        touch, caress, or fondle the breast, buttocks, anus, or genitals of any other person;

(4)        permitting a person to wear or use a device or covering that:

(a)        is exposed to view; and

(b)        simulates all or any portion of the human genitals, anus, pubic area, or female breast;

(5)        permitting a person to use an artificial device or inanimate object to depict an act prohibited by this section;

(6)        permitting a person to remain on premises or at an event who exposes to public view any portion of that person’s:

(a)        genitals, pubic area, or anus; or

(b)        in the case of a female, the areola and nipple of the breast; or

(7)        showing a film, still picture, electronic reproduction, or other visual reproduction depicting:

(a)        an act or simulated act of:

(i)         sexual intercourse;

(ii)        masturbation;

(iii)       sodomy;

(iv)       bestiality;

(v)        oral copulation;

(vi)       flagellation; or

(vii)      a sexual act that is prohibited by Utah law;

(b)        a person being touched, caressed, or fondled on the breast, buttocks, anus, or genitals;

(c)        a scene wherein an artificial device or inanimate object is employed to depict, or a drawing is employed to portray, an act prohibited by this section; or

(d)       a scene wherein a person displays the genitals or anus.

Utah Code § 76-5b-203.  Distribution of an intimate image — Penalty.

(1)        As used in this section:

(a)        “Distribute” means selling, exhibiting, displaying, wholesaling, retailing, providing, giving, granting admission to, providing access to, or otherwise transferring or presenting an image to another individual, with or without consideration.

(b)        “Intimate image” means any visual depiction, photograph, film, video, recording, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, that depicts:

(i)         exposed human male or female genitals or pubic area, with less than an opaque covering;

(ii)        a female breast with less than an opaque covering, or any portion of the female breast below the top of the areola; or

(iii)       the individual engaged in any sexually explicit conduct.

(c)        “Sexually explicit conduct” means actual or simulated:

(i)         sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii)        masturbation;

(iii)       bestiality;

(iv)       sadistic or masochistic activities;

(v)        exhibition of the genitals, pubic region, buttocks, or female breast of any individual;

(vi)       visual depiction of nudity or partial nudity;

(vii)      fondling or touching of the genitals, pubic region, buttocks, or female breast; or

(viii)     explicit representation of the defecation or urination functions.

(d)       “Simulated sexually explicit conduct” means a feigned or pretended act of sexually explicit conduct that duplicates, within the perception of an average person, the appearance of an actual act of sexually explicit conduct.

(2)        An actor commits the offense of distribution of intimate images if the actor, with the intent to cause emotional distress or harm, knowingly or intentionally distributes to any third party any intimate image of an individual who is 18 years of age or older, if:

(a)        the actor knows that the depicted individual has not given consent to the actor to distribute the intimate image;

(b)        the intimate image was created by or provided to the actor under circumstances in which the individual has a reasonable expectation of privacy; and

(c)        actual emotional distress or harm is caused to the person as a result of the distribution under this section.

(3)        This section does not apply to:

(a)

(i)         lawful practices of law enforcement agencies;

(ii)        prosecutorial agency functions;

(iii)       the reporting of a criminal offense;

(iv)       court proceedings or any other judicial proceeding; or

(v)        lawful and generally accepted medical practices and procedures;

(b)        an intimate image if the individual portrayed in the image voluntarily allows public exposure of the image; or

(c)        an intimate image that is portrayed in a lawful commercial setting.

(4)

(a)        This section does not apply to an Internet service provider or interactive computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service, information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined in 47 U.S.C. Sec. 522, if:

(i)         the distribution of an intimate image by the Internet service provider occurs only incidentally through the provider’s function of:

(A)       transmitting or routing data from one person to another person; or

(B)       providing a connection between one person and another person;

(ii)        the provider does not intentionally aid or abet in the distribution of the intimate image; and

(iii)       the provider does not knowingly receive from or through a person who distributes the intimate image a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute the intimate image.

(b)        This section does not apply to a hosting company, as defined in Section 76-10-1230, if:

(i)         the distribution of an intimate image by the hosting company occurs only incidentally through the hosting company’s function of providing data storage space or data caching to a person;

(ii)        the hosting company does not intentionally engage, aid, or abet in the distribution of the intimate image; and

(iii)       the hosting company does not knowingly receive from or through a person who distributes the intimate image a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute, store, or cache the intimate image.

(c)        A service provider, as defined in Section 76-10-1230, is not negligent under this section if it complies with Section 76-10-1231.

(5)

(a)        Distribution of an intimate image is a class A misdemeanor except under Subsection (5)(b).

(b)        Distribution of an intimate image is a third degree felony on a second or subsequent conviction for an offense under this section that arises from a separate criminal episode as defined in Section 76-1-401.

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