DEFENDING A PROTECTIVE ORDER
If you are faced with a protective order, it is important that you understand your rights and obligations under Utah law. A protective order can have a significant impact on your divorce case, as well as your personal liberties.
How Will I Know That a Protective Order Has Been Issued?
It is relatively easy to obtain a protective order in the state of Utah, and there are few procedural safeguards. Pursuant to Utah Code Ann. §78B-7-106, “if it appears from a petition for an order for protection . . . that domestic violence or abuse has occurred . . . a court may without notice, immediately issue an order for protection ex parte.”
In Utah, the petitioning party does not have to notify you of his/her intent to request a protective order. So long as the request describes any incident of domestic violence or abuse, the Court is likely to issue a temporary protective order. The order is issued “ex parte,” which means that you will not receive advance notice and you will not have the right to be present or to testify prior to entry of the order.
You will be notified only after the protective order has been issued. The petitioning party will then be required to serve you with a copy of the signed order.
How Will a Protective Order Affect Me?
The purpose of a protective order is to provide a victim of domestic violence with the necessary protection to ensure his/her safety. A protective order will require that you have no contact with the petitioning party or any other parties named in the order. Often, the petitioning party identifies the parties’ children as other individuals in need of protection. If your children are identified as protected parties, you will not be permitted to have direct or indirect contact with them. The order will also require that you stay away from places frequented by the petitioning party, such as his/her home, place of employment and vehicle. In the event that you reside with the petitioning party, you will be barred from returning to your home while the protective order is in effect.
If you are served with a protective order, you should stay away from any person or place named in the order and refrain from having any direct or indirect communication. If you violate the protective order in any way, you can be charged with a Class A misdemeanor. Class A misdemeanors are punishable by up to one year in jail and up to $2,500.00 in fines.
You should also immediately dispose of any firearms or ammunition in your possession. Federal law prohibits persons subject to protective orders from possessing firearms or ammunitions. A violation of the federal firearms statute is punishable by up to ten years imprisonment. If you are served with a protective order, you will lose your right to bear arms.
How Will a Protective Order Affect my Divorce/Custody Case?
A protective order is not a substitute for a divorce decree, permanent custody order or child support order. However, certain temporary orders may be entered in conjunction with a temporary protective order. Such orders may affect the outcome of your divorce or custody case.
Utah Code Ann. §78B-7-106 provides divorce commissioners with the power to grant the following relief in a protective order case:
- Order that the respondent is excluded from the petitioner’s residence and its premises;
- Order possession and use of an automobile and other essential personal effects;
- Direct law enforcement to accompany the petitioner to the residence of the parties to ensure that the petitioner is safely restored to possession of the residence, automobile and other essential personal effects;
- Grant to the petitioner temporary custody of any minor children of the parties; and
- Enter an award of child support or spousal support.
If your spouse or significant other petitions the Court for a protective order, he/she is likely to request temporary possession of your house and temporary custody of your children. Once temporary orders are entered, the orders can be difficult to change. It may require several hearings and mediation to modify temporary orders entered in conjunction with a protective order.
What Should I Expect at the Protective Order Hearing?
Following entry of the protective order, the Court is required to hold a hearing to determine whether the protective order should be permanently entered. The hearing must be scheduled within 20 days after the temporary protective order is issued.
For most Utah counties, the initial hearing will take place before the domestic court commissioner. At the hearing, you will have the opportunity to testify. The petitioning party will testify about why they believe a protective order is necessary and will provide information about any incidents of domestic violence or threats
allegedly perpetrated by you. You will then have the opportunity to rebut the petitioning party’s testimony and provide reasons why a protective order should not issue. You will not have the right to cross examine the petitioning party or introduce witness testimony during the initial protective order hearing.
If the Commissioner finds that there has been an incident of domestic violence or a threat of domestic violence, and that the petitioning party has a fear of imminent harm, the Commissioner will recommend entry of a permanent protective order. You may then object to the Commissioner’s recommendations and request an evidentiary hearing before a district court judge.
Do I Need an Attorney?
A protective order can affect the outcome of your divorce or custody action, as well as important liberty interests, such as your right to bear arms and your right to the care and custody of your children. An attorney can help negotiate an alternative resolution and can defend you in court against the entry of a permanent protective order. The experienced family law and criminal defense attorneys at Intermountain Legal have successfully defended against protective orders and domestic violence actions. We offer $75 30 minute consults to individuals facing a protective order action.
