Protective Orders & Restraining Orders

PROTECTIVE ORDERS

Utah County attorney Kelly Peterson protects clients involved in domestic violence proceedings, allowing them to get the help they need to move on. Every divorce, dissolution of a relationship or child custody dispute involves pain and disappointment. It is not surprising, then, that domestic violence is often an issue. If abuse or an accusation of abuse is an issue in your family, secure the legal protection you need in order to move forward with confidence.

If you face accusations of abuse, have been served with a protection order, or are otherwise facing accusations of domestic violence, it is important to immediately file a request for hearing. A protective order can build a wall between you and your children, effectively giving sole custody to the child’s other parent. You may not be able to go into your own home or even have unsupervised visitation with your children. We can help you prepare for the hearing and represent you in court.

General Information

RESTRAINING ORDERS

In Utah, there is a distinct difference between restraining orders and protection orders. Restraining orders are not a separate action, but generally part of an existing legal action like a divorce or paternity case. Protection orders are stand-alone actions that can be filed by victims of domestic violence, spousal abuse or general harassment.  In some circumstances it is more advantageous to seek a restraining order, rather than a protective order.

TEMPORARY RESTRAINING ORDER (TROs)

A temporary restraining order (TRO) is an order signed by a judge without notice or hearing to the other side to prevent “immediate and irreparable harm.”  These short-term orders are in place for two-weeks or less until the judge can hear evidence on the matter to decide if the TRO will remain permanent.  In the family law context, these orders can be used to change custody temporarily, order supervised visitation, freeze assets, and other extremly time-sensitive issues.

The issues surrounding any of the forgoing orders can often be complex, and very dependent current statutes and caselaw.   If you are in need of a temporary order, protective order, or temporary restraining order, or else are defending against these motions for these types of orders, we invite you to e-mail us or call family law attorney Kelly Peterson at (801) 616-3301.

What you need to know about ADULT PROTECTIVE ORDERS.

The person filing for a protective order (aka the alleged victim) is called the Petitioner. The person against whom the protective order is sought (aka the alleged perpetrator) is called the Respondent.

In Utah Fourth District court:

  • protective order cases are typically heard by a commissioner rather than a judge.
  • protective order cases are heard by proffer ( no witnesses, no cross-examination).

There are two types of adult protective orders: ex parte protective orders and full protective orders. An ex parte protective order temporarily protects you from abuse, sets a hearing date within 20 days. A full protective order can give you more protection and the court can set it for a longer duration. The main differences between an ex parte protective order and a protective order are:

Ex parte protective orderFull protective order
Temporary in natureMore permanent in nature
Ex parte: means that the court can issue the order without hearing respondent's testimony.The court will typically issue the order after a hearing where respondent has a chance to present his side of the facts.
The order must set a date for a hearing within 20 days. At that hearing, the respondent will have an opportunity to present his side of the facts and the court may extend the ex-parte protective order or enter a full protective order.
Expires if not extended at hearing date.Civil portions are in force for 150 days. Criminal portions are in force as long as protective order is in effect. See section on civil and criminal portions below.
If court does not issue a full protective order, court may extend the ex-parte protective order for up to 180 days total.Absent written agreement, cannot be dismissed if it has been in effect less than two years.

REQUIREMENTS TO OBTAIN A PROTECTIVE ORDER:

An adult protective order can only be obtained when there has been domestic violence or threats thereof between cohabitants. Utah law has a very specific definition for cohabitant. This is important because it determines WHO CAN FILE AN ADULT PROTECTIVE ORDER against whom. Section 78B-7-102 of the Utah Code defines cohabitant as follows:

(2) “Cohabitant” means an emancipated person pursuant to Section 15-2-1 or a person

who is 16 years of age or older who:

  • (a) is or was a spouse of the other party;
  • (b) is or was living as if a spouse of the other party;
  • (c) is related by blood or marriage to the other party;
  • (d) has or had one or more children in common with the other party;
  • (e) is the biological parent of the other party’s unborn child; or
  • (f) resides or has resided in the same residence as the other party.

(3) Notwithstanding Subsection (2), “cohabitant” does not include:

  • (a) the relationship of natural parent, adoptive parent, or step-parent to a minor; or
  • (b) the relationship between natural, adoptive, step, or foster siblings who are under

18 years of age

Please note that a protective order can be obtained even when the offender still lives in the house. If there has been domestic violence or threat of domestic violence, a protective order is a an effective and quick way to kick the offender out of the house.

WHAT A PROTECTIVE ORDER CAN DO:

A protective order can:

  • help prevent future domestic violence and threats.
  • keep the offender away from certain areas where the victim might be (schools, workplace, home)
  • prohibit the offender from having any contact with the victim.
  • prevent the offender from purchasing weapons.
  • give law enforcement the power to deliver property.
  • contain a provision ordering temporary custody. If there is a protective order in place, the court cannot award custody to the offender
  • appoint a Guardian Ad Litem and order relief for the safety of the children.
  • order the parties to provide income verification for child support purposes

CIVIL PORTIONS VS CRIMINAL PORTIONS OF PROTECTIVE ORDERS:

Full protective orders have civil portions and criminal portions. In other words, a respondent who violates the civil portions of a protective order faces civil penalties. Violating the criminal portions of a protective order can land the respondent directly in jail. Civil portions are in force for 150 days.
Criminal portions are in force as long as protective order is in effect.

CUSTODY ASPECTS OF PROTECTIVE ORDERS

Although protective orders can sometimes have a custody component, they are not the best way to address custody issues in the long term. The best way to address custody issues in the long term is to do so in the context of a divorce or paternity case. Kelly Peterson is a Utah custody attorney who can help you with these issues.
Provo, Utah protective order attorney Kelly Peterson can help you obtain or defend against a protective order. Kelly Peterson can review the specifics of your case and help you determine whether a protective order makes sense for you. Protective order lawyer Kelly Peterson can also help make sure your rights and interests, and those of your children, are protected during divorce and other family law proceedings.

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