In Utah, protective orders and restraining orders can be obtained by individuals in need of stopping threatening or violent behavior. While these two terms are often used interchangeably, they are actually very different orders. Three other related orders include Civil Stalking Injunctions, Child Protective Orders, and Dating Violence Protective Orders.
If you are a victim of violence, abuse, or harassment you may not only have grounds for a protective order but you may also be a victim of a crime. Consider contacting your local law enforcement agency to report the perpetrator’s behavior.
A protective order is an independent action that begins with a request or petition being filed with the local District Court. Its purpose is to protect the petitioner and/or the petitioner’s family from a violent cohabitant. If the judge grants the request, a Temporary Protective Order will be issued pending a hearing, which is usually about two weeks after the temporary order is issued. Prior to the hearing the respondent must be personally served the Temporary Protective Order with notice of the hearing date. This is often done by the County Sheriff’s office. The purpose of the hearing is to give the respondent an opportunity to defend him or herself against the petitioner’s accusations. After the hearing the judge will determine whether to dismiss the temporary protective order and end the case or make the protective order permanent.
To obtain a permanent protective order the petitioner must describe a past instance of violence or abuse and a present fear of imminent violence or abuse at the hands of the respondent. Also, the respondent must be the petitioner’s current or former cohabitant, meaning a current or former spouse, blood relative, roommate, or parent of the petitioner’s child. A cohabitant is not a parent or child of the petitioner, an unrelated acquaintance, stranger, or sibling under 18 years old.
If a Protective Order is granted, the respondent will be restrained from committing certain acts. Depending on the parties’ relationship, this can include no communication or physical contact with the petitioner at all, and not coming in or near the petitioner’s home, school, place of business, or vehicle. If the parties have children together, considerations must be made for parent-time and communicating with the children.
A protective order will include both civil and criminal provisions. If the civil provisions are violated the remedy is to bring the respondent back to court for a contempt proceeding. If the criminal provisions are violated the respondent can be arrested and/or criminally prosecuted.
A protective order can be dismissed or modified with the consent of the petitioner. Otherwise, a respondent can request the court dismiss the order after one or two years depending on the circumstances. If the respondent requests a dismissal he or she will need to show the basis for the protective order no longer exists, there have been no violations of the protective order, the petitioner no longer has reason to fear the respondent, and generally the protective order is no longer needed.
A restraining order is a broad order that may be obtained to restrain practically any type of action or behavior. A restraining order is generally obtained by filing a motion in an existing court case. For example, in a divorce case, paternity action, or any other civil lawsuit, one party can move the court for an order stopping the other party from doing something. This can include contacting the other party, committing a violent act, wasting or destroying property, using drugs or alcohol around children, etc.
A restraining order can be temporary or permanent based on the moving parties’ request and need, and can be modified at any time if either party can show such a need. Since restraining orders are filed in civil actions, they are enforced civilly by bringing the restrained party back to court for a contempt proceeding wherein he or she may receive various sanctions depending on the severity of the violation.
Civil Stalking Injunction
A civil stalking injunction is similar to a protective order except it can be against anyone (not just a cohabitant) and doesn’t necessarily require an act of violence on behalf of the respondent. Rather, two or more instances of stalking, harassing , vexing, threatening, photographing, or even annoying behavior that causes the victim fear or distress can be grounds for an injunction.
The process for obtaining a civil stalking injunction is similar to a protective order. The main difference is that the petitioner must provide enough evidence in the initial request to convince the judge to issue the permenant injunction up front. This should include affidavits, photos, video, etc., evidencing the stalking behavior. If the judge issues the injunction, the respondent must then be served notice. The respondent then has 10 days to request a hearing and the petitioner will have the burden to prove his or her case. If the respondent does not request a hearing within 10 days, a hearing can still be request, but the respondent will have the burden of disproving the petitioner’s accusations.
Child Protective Order
A child protective order is very similar to a regular protective order except it is filed on behalf of a child in Juvenile Court. An adult must file the request on behalf of the child, describing the past abuse or violence against the child and why the child is now in fear of imminent future harm. The abuse must be exclusively physical or sexual abuse. A child protective order cannot be issued for any other reason. Also, before a request is made, the adult must make a referral to the Division of Child and Family Services (DCFS). After receiving the request, the court clerk may refer the case to the office of guardian ad litem for assistance with investigating the case and making additional recommendations to the court.
Aside from being filed in Juvenile Court, the process for obtaining a child protective order is basically the same as a regular protective order. Review that section above for more information.
Dating Violence Protective Order
Utah law allows a person to obtain a dating violence protective order against a violent boyfriend or girlfriend. The law requires the couple to be in a “dating relationship” and the violent partner to either be an emancipated child or over 18 years old. Otherwise, the process for obtaining a dating violence protective order is basically the same as a regular protective order with just a few minor exceptions. For example, if the dating couple attend the same school the respondent cannot be barred from attending school. Review the protective order section above for more information on the process for obtaining a protective order.
At Slemboski & Tobler, we have successfully prosecuted and defended countless protective orders and restraining orders. Contact us if you have any questions about your particular situation or if you would like assistance with your case.