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UCA § 78B-7-102 Cohabitant Abuse Act

Definitions.

“ Abuse” – attempting to cause harm or fear of harm.

“Cohabitant” defined

“Domestic Violence” (defined in §77-36-1) – criminal offense involving violence, threat, harm, attempt, conspiracy or solicitation. Specifically, commission or an attempt to commit:

aggravated assault, 76-5-103

assault, 76-5-102

homicide, 76-5-201

harassment, 76-5-106

telephone harassment, 76-9-201

kidnapping, 76-5-301, 301.1, and 302

mayhem, 76-5-105

sexual offenses, 76-5, Part 4 and 76-5b-201

stalking, 76-5-106.5

unlawful detention, 76-5-304

violation of civil protective order, 76-5-108

offense against property, 76-6 — part one, two, or three – including arson, criminal mischief, damage to or interruption of the communication device, criminal trespass, burglary, robbery

possession of weapon with intent to assault, 76-10-507

discharge a firearm, 76-10-508

disorderly conduct, 76-9-102

child abuse, 76-5-109.1

UCA § 78B-7-103

1. Any cohabitant who has been subjected to abuse or domestic violence, or to whom there is a substantial likelihood of abuse or domestic violence, may seek an ex parte protective order or a protective order in accordance with this chapter, whether or not that person has left the residence or the premises in an effort to avoid further abuse.

2. A petition for a protective order may be filed under this chapter regardless of whether an action for divorce between the parties is pending.

3. A petition seeking a protective order may not be withdrawn without approval of the court.

UCA § 78B-7-104

1. The district court has jurisdiction of any action brought under this chapter.

2. Shall be filed in the county where either party resides or in which the action complained of took place.

UCA §78B-7-105. 3. Each protective order will have form language, including that the court may dismiss a protective order after one year if it finds the basis of the protective order no longer exists because the petitioner has repeatedly contravened the order, demonstrating the petitioner no longer has a reasonable fear of the respondent.
UCA § 78B-7-105.5

(1) A court may not grant a mutual order or mutual orders for protection to opposing parties, unless each party:

a). Has filed an independent petition against the other for a protective order, and both petitions have been served;

b). makes a showing that a due process protective order hearing of abuse or domestic violence committed by the other party; and

c). demonstrates the abuse or domestic violence did not occur in self-defense.

(2) If the court issues mutual protective orders, the circumstances justifying those orders shall be documented in the case file.

UCA § 78B-7-107

(1)

(a). When a court issues an ex parte protective order the court shall set a date for hearing on the petition within 20 days after the ex-parte order is issued.
(b). if that that hearing the court does not issue a protective order, the ex-parte protective order shall expire, unless it is otherwise extended by the court.
(c). Under no circumstances may an ex parte order be extended beyond 180 days from the date of initial issuance.
(d). if at that hearing the court issues a protective order, the ex-parte protective order remains in effect until service of process of the protective order is completed.
(e). a protective order issued after notice and a hearing is effective until further order of the court.
(f). if the hearing on the petition is heard by Commissioner, either the petitioner or respondent may file an objection within 10 days of the entry of the recommended order and the assigned Judge shall hold a hearing within 20 days of the filing of the objection.

(2) Upon hearing under this §, the court may grant any of the relief described in § 78B-7-106.
(3) When a court denies a petition for an ex parte protective order or petition to modify an order for protection ex-parte, the court shall set the matter for hearing upon notice to the respondent.
(4) The respondent who has been served with an ex-parte protective order may seek to vacate the ex-parte protective order prior to the hearing scheduled pursuant to subsection (1)(a) by filing a verified motion to vacate. The respondent’s verified motion to vacate and a notice of hearing on that motion shall be personally served on the petitioner at least two days prior to the hearing on the motion to vacate.

“civil portions” effective for 150 days unless the court specifies other time. “criminal portions” effective until further order but may not be terminated within two years unless petitioner agrees.

Motion to vacate must be personally served on the petitioner at least two days prior to the hearing on motion to vacate.

If a protective order is in place that time decree of divorces entered, protective order shall be dismissed if the court enters specific findings.

UCA § 78B-7-109

1. At any hearing in a proceeding to obtain an order for protection, each party has a continuing duty to inform the court of each proceeding for an order for protection, any civil litigation, each proceeding in Juvenile Court, and each criminal’s case involving either party, including the case name, the file number, and the county and state of the proceeding, if that information is known by the party.

2.

(a) An order for protection issued pursuant to this chapter is in addition to a not in lieu of any other civil or criminal proceeding.

(b) a petitioner is not barred from seeking a protective order because of other pending proceedings.

(c) a court may not delay granting relief under this chapter because of the existence of a pending civil action between the parties.

3. A petitioner may amend his or her address from all documents filed with the court under this chapter, but shall separately provide the court with a mailing address that is not to be made part of the public record, but that may be provided to a peace officer or entity for service.

UCA § 78B-7-110

The court may not deny a petitioner relief requested pursuant to this chapter solely because of a lapse of time between an act of domestic violence or abuse and the filing of the petition for an order of protection.

UCA §78B-7-115

A protective order that has been in effect for at least two years may be dismissed if the court determines that the petitioner no longer has a reasonable fear of future abuse. The court shall enter sanctions against either party if it determines that either party acted in bad faith, or with an intent to harass or intimidate either party.

(5) the protective order shall be dismissed when the court issues a decree of divorce for the parties if:
(a) the petitioner in the protective order action is present or has been given notice in both the divorce and protective order action of the hearing; and

(b) the court, after making specific findings on each factor in (1), determines that the petitioner no longer has a reasonable fear of future abuse

UCA § 78B-7-116

Full faith and credit. The state will give full faith and credit to protective orders from other jurisdictions as long as the order is in effect in the jurisdiction of issuance.  Petitioner may file certified copy of order and swear under oath that order is still in effect and respondent was served with the order.

State v. Salt, 2015 UT App 72, 347 P.3d 414 (2015)

“Cohabitant” as defined in Cohabitant Abuse Act is not unconstitutionally overbroad. Inclusion of attenuated relationships does not implicate constitutional overbreadth.

Strollo v. Strollo, 828 P.2d 532 (Utah App. 1992)

Present threat of harm where history of domestic violence, although remote, is sufficient for entry of protective order.

Jaynes v. Waters, 2001 UT App. 368.

Respondents willing refusal to leave petitioners home after request were sufficient to establish “criminal trespass” as defined and, consequently, to support entry of protective order.

Bailey v. Bayles, 52 P.3d 1158,  2002 UT 58.

Conduct which met requirements of “criminal stalking statute” were sufficient to support entry of protective order. Present threat of harm where history of domestic violence, although remote, is sufficient for entry of protective order.  Respondents conduct — repeatedly following petitioner’s husband and repeatedly calling home and workplace, coupled with past abuse – sufficient to consider Petitioner’s fear reasonable and real.

Patole v. Marksberry, 2014 UT App 131

The simple test by plain terms of statute is the one, true standard for analyzing petitions for protective orders under the CAA. That is, a petitioner must prove that he or she is (1) a “cohabitant” (2) “who has been subjected to abuse or domestic violence, OR to whom there is a substantial likelihood of abuse or domestic violence.” See Utah Code Ann. § 78B-7-103 (LexisNexis 2012) (emphasis added).

¶13 It follows, then, that any purported analytic framework for considering the availability of a protective order that is inconsistent with this standard is incorrect under the CAA. This includes the flawed test articulated in our Bailey decision and the concept that, in petitions for protective orders under the CAA, past abuse must be “coupled with a present threat of future harm.” Strollo v. Strollo, 828 P.2d 532, 535 (Utah Ct. App. 1992).

Patole v. Marksberry, 2014 UT App 132

District court erred in determining that Petitioner Husband and Father-in-law were not cohabitants. Indeed, they were cohabitants under the CAA’s definitions because they were “related by marriage” as required under Utah Code section 78B-7-102(2)(c). Id. ¶ 6. The court of appeals held that the district court’s error was both obvious and prejudicial. Id. ¶ 8.

HM v. State, 989 P.2d 76 (Utah App. 1999)

Child was neglected where the mother continually returned to an abusive relationship with father between protective orders.  Knowingly placing child in father’s presence, given her knowledge of his past abuse and likelihood for future abuse, you sufficient under statute for finding “neglected child.”

In re I.B., 2007 UT App 177 ¶ 5

Protective Order – failure to resolve. Protective order does not excuse failure to contact.  Court may infer that failure to attempt to resolve PO shows lack of normal interest of natural parent.

Williams v. Williams, 2013 UT App 111

Stalking – Affirmed trial court’s stalking injunction against Husband due to his continued and unwelcome emails, mail, and phone calls. “Stalking” may refer to the cumulative effect of acts that, in isolation, do not cause sufficient emotional distress to constitute stalking.

Stalking – When a person “intentionally or knowingly engages in a course of conduct directed at a specific person” and “knows or should know” that the conduct would cause a reasonable person to fear for his or her safety or “suffer other emotional distress.” UCA § 76-5-106.5(2).

Course of conduct – “Two or more acts directed at or toward a specific person,” such as “acts in which the actor … surveils, threatens, or communicates to or about a person … directly, indirectly, or through any third party.” (1)(b).

Emotional distress – “Significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required.” (1)(d).

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*Child Welfare Law Specialist Nat’l Assoc. of Counsel for Children