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Can A Child Protective Order Be Amended Or Removed?

Yes, you can file a motion to amend or remove a child protective order. But the provisions regarding removal of a protective order or dismissal, regarding the statutes, are less. In an adult protective order, the statute regarding amending or dismissing it, spells out very clearly that it must be done. The child protective order statute does not. The court will likely determine that it has the discretion to amend the child protective order for good cause shown, but the process for getting it dismissed is much less clear. It will probably be because once the court has determined grounds for the entry of a protective order and it is present, it sets the date by which it will expire.

Then the courts rule on when it will expire. It is ruled that this is the date it will be dismissed in advance. So the best tactic there would be to file a motion to amend the expiration date of the child protective order and ask the court to amend the previous ruling as to when it would expire.

Does A Judge Decide If The Protective Order Is To Be Amended Or Dismissed Or Can The Parent Have A Say In It?

The petitioner, who obtains the child protective order, can stipulate, or in other words agree, to removal of the child protective order. If they do, then each side signs a stipulation and a proposed order dismissing a protective order to the court. If both sides agree, the court will generally sign it as well. In fact, any respondent in a protective order should be very wary of any offer by the petitioner or anybody else to allow contact between themselves and the child unless the protective order has formally been dismissed.

A child protective order may allow limited contact with the child under some circumstances (e.g. supervised visitation). Let us suppose that the petitioner in the protective order offers to say, “We don’t need supervision anymore; let’s just give you a parent time or contact with the child without a supervisor present”, the respondent should not do so, because it is still technically a crime. On a number of occasions I have witnessed attempts by a petitioner to lure the respondent into making that mistake and then calling the police to have them arrested for violation of the protective order.

How Do You Help Clients To Focus In A Child Protective Order Scenario?

If it has reached the point where the child has been abused, neglected or they are abused physically or sexually or where they are defending themselves against those allegations, the motivation is inherently there. I do not necessarily have to motivate them to move in the right direction. What I do instead rather is to give them instructions, to first identify, short term goals; long term goals, if use of a child protective order makes sense.

I give them instructions on what evidence to gather, how to gather it, and what timeframes are needed and step by step directions as to what to do to either get the protective order instituted and to prepare for the protective order hearing in the case if I am representing a petitioner. If I am representing the respondent, then we discuss how to prepare for the hearing in order to defend themselves against the allegations, if the allegations are false. But if the allegations are true, I will often engage in negotiations with the other side to help satisfy the petitioner’s concerns, and work with my client to sort out those concerns for any need for supervision or limited contact as quickly as possible, in a way that is advantageous to the respondent.

It is mainly just a step by step instruction. I help draft pleadings, prepare witnesses, and prepare parties for re-examination and cross-examination. If the case cannot be resolved, then we will go through the litigation process.

Can Someone Handle A Child Protective Order Case Without An Experienced Family Law Attorney?

Many times I have witnessed people handle a protective order without proper representation. It happens all the time. They make the attempt, but they are severely disadvantaged if they do not have an experienced family law attorney to support them. Oftentimes the results that they are seeking do not come to fruition because they lack of knowledge of how to proceed with the case. It is highly recommended that an experienced family law attorney that is specifically experienced in handling child protective orders and is familiar with both district court and juvenile court be on hand to assist.

Parent Respondents Should Have As Much Contact With Their Child As Possible

If you are a parent of the child, and you have a child protective order against you, don’t say to yourself: “Fine. I’m just not going to see the child. When the child wants to see me, maybe I’ll wait six months till this is dismissed or 5 months or whatever.” That is a bad idea because there is case law in the state of Utah that say that unless you do everything that you can to resolve a child protective order and to have as much contact with your child as possible, even though there is a child protective order in place, you might be considered to be abandoning your child. Abandonment is grounds for termination of your parental rights in our state.

If you have a protective order against you, you should do everything you can to get it removed either by engaging in the treatment necessary, and complying with any medical recommendations from any evaluator. For example, if it is physical abuse and the respondent has an anger problem, then they should enter in to an anger management program. If it is a domestic violence evaluation, then comply with the treatment recommendations, and then show up to the court with those treatment recommendations saying, “Look, I’ve done this. Can we amend the protective order to allow me to have more contact?”

In the meantime, whenever contact is allowed, that should be taken advantage of. But from time to time, I see a respondent who gets disgusted that there is a protective order against them and decides to punish the other party or punish the child passively by choosing to have no contact with the child. It can create grounds for abandonment, and I have seen parental rights terminated for that reason.
Additional Information Re: Child Protective Orders

PROTECTIVE ORDERS (B) CHILD

LEGAL AUTHORITY
HOLDING/COMMENTS

UCA § 78B-7-201. Definitions

As used in this chapter:

(1) "Abuse" means physical abuse or sexual abuse.

(2) "Court" means the district court or juvenile court.

(3) All other terms have the same meaning as defined in § 78A-6-105.

UCA § 78A-6-105(1) and (2) – (Juvenile Court Act Definition)

78A-6-105. Definitions.

As used in this chapter:

(1) (a) Abuse means:
(i) nonaccidental harm of a child;
(ii) threatened harm of a child;
(iii) sexual exploitation; or
(iv) sexual abuse.
(v) human trafficking of a child in violation of 76-5-308.5.

(19)Harm” means:

(a) physical or developmental injury or damage;
(b) emotional damage that results in a serious impairment of child’s growth,
(c) sexual abuse; or
(d) sexual exploitation.

UCA § 78B-7-202

1. Any interested person may file a petition for a protective order on behalf of a child who is being abused or who is an imminent danger of being abused. The petitioner shall first make a referral to DCFS.

2. Upon the filing of a petition, the clerk of the court shall:

(a) Review the records of the Juvenile Court, and the District Court, and the MIS of the division to find any petitions, orders, or investigations related to the child of the parties to the case.

(b) request the records of any law enforcement agency identified by the petitioner as having investigated abuse of the child; and

(c) identify and obtain any other background information that may be of assistance to the court.

3. Upon the filing of a petition, the court shall immediately determine, based on the evidence and information presented, whether the minor is being abused or is in imminent danger of being abused. If so, the court shall enter an ex parte child protective order.

4. The Court may appoint GAL under 78A-2-703 and 78A-6-902

UCA § 78B-7-203

1. The court shall schedule a hearing within 20 days after the ex parte determination.

2. The petition, ex parte child protective order, and notice of hearing shall be served on the respondent, the minor’s parent or guardian, and, if appointed, the GAL. The notice shall contain:

(a) The name and address of the person to whom it is connected;
(b) date, time, and place of the hearing;
(c) the name of the subject minor ; and
(d) a statement that a person is entitled to have an attorney present.

3. The court shall provide an opportunity for any person having relevant knowledge to present evidence or information. The court may hear statements by counsel.

4. An agent of DCFS served with a subpoena in compliance with URCP shall testify in accordance with the URE.

5. If the court determines, based on a preponderance of the evidence, that the minor is being abused or is in imminent danger of being abused, the court shall enter a child protective order. With the exception of the provisions of § 78A-6-323, child protective order does not constitute an adjudication of abuse, neglect, or dependency under 78A-6-302, abuse neglect and dependency proceedings.

UCA § 78B-7-204

1. A child protective order or an ex parte child protective order may contain the following provisions the violations of which is a class A misdemeanor under § 77-36-2.4:

(a) Enjoin the respondent from threatening to commit or committing abuse of the minor;
(b) prohibit the respondent from harassing, telephoning, contacting, or otherwise communicating with the minor, directly or indirectly;
(c) prohibit the respondent from entering or remaining upon the residence, school, or place of employment of the minor and the premises of any of these are any specified place frequented by the minor;
(d) upon finding that the respondent’s use or possession of a weapon may pose a serious threat of harm to the minor, prohibit the respondent from purchasing, using, or possessing a firearm or other specified weapons; and
(e) determine ownership and possession of personal property and direct the appropriate law enforcement officer to attend and supervise the petitioners or respondent’s removal of personal property.

2. A child protective order or an ex parte may contain the following provisions the violation of which is contempt of court:

(a) Determine temporary custody of the minor who is the subject of the petition;
(b) determine parent time with a minor who is the subject of the petition, including denial of parent time if necessary to protect the safety of the minor, and require supervision of parent time;
(c) determine support in accordance with 78B-12; and
(d) order any further relief the court considers necessary to provide for the safety and welfare of the minor.

UCA § 78B-7-205

5. After notice and hearing the court may modify or vacate child protective order without showing of substantial and material change in circumstances.

6. The child protective order expire 150 days after the date of the order unless a different date is set by the court. The court may not set a date more than 150 days after the date of the order without a finding of good cause.

7. Notwithstanding Subsections (5) and (6), unless the judge orders otherwise all child protective orders expire when the subject of the order is 18 years of age, unless the judge vacates the order earlier.

J.P. v. M.C., 2009 UT App 46, 5

affirming protective order against a father, where father was not the abuser (abuser was child of paramour), but he nevertheless failed to protect).

In re. J.S.P., 2011 UT App 180

Slapping child, calling her vile names was abuse and emotional maltreatment, and not good-faith reasonable discipline, particularly when done in anger and part of long-term pattern of conduct.

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