What Are The Different Types Of Protective Orders?
There are two types of protective orders; adult protective orders and child protective orders. Any interested party can file a petition for a child protective order to prohibit someone from having contact with a child. In Utah the grounds for obtaining a child protective order, is that you have to show physical abuse, sexual abuse, or imminent threat thereof to the child. These orders are criminal in nature, which means if violated law enforcement can step in.
What Is The Criteria For A Protection Order To Be Put Into Place?
For a protection order to be put into place, the two parties have to be cohabitants, and the Cohabitant Abuse Act is Utah Code Annotated §78(B)–7–101. So section 102 defines a cohabitant as someone who is 16 years of age or older who is or was a spouse, is related by blood or marriage, has had one or more children in common with the other party, is the biological parent of an unborn child, or resides or has resided in the same residence as the other party. That is the first element that needs to be met. The next element that needs to be met is there has to be domestic violence, and domestic violence is also defined in sub-section, 102, which refers to a different statute. It is any criminal offense involving violence of physical harm or threat of violence or physical harm, or any threat, conspiracy, or solicitation to commit a criminal offense involving violence or physical harm when committed by one cohabitant against another. It also means the commission or attempt to commit any of the following offenses against the other: assault, aggravated assault, homicide, harassment, electronic communications harassment, kidnapping, mayhem, sexual offenses, stalking, unlawful detention, and violation of a protective order and even if it is a temporary protective order is also grounds for the entry of a protective order.
Certain offenses against property are also included such as: destruction of property or burglary, criminal trespass, robbery, possession of a deadly weapon with intent to assault, discharge of a firearm, disorderly conduct in certain cases, and child abuse. All of these things are considered to be domestic violence in addition to the general definition. If those two things are found, that someone is a cohabitant and domestic violence has occurred, then generally a protective order will be issued.
How Often Are Protective Orders Involved In Divorce Situations?
Very often a protective order will precede a divorce or will follow shortly on the heels of a divorce filing. The legitimate reasons this tends to happen might be if there was domestic violence involved and now one party needs protection from the other. That often coincides with their irreconcilable differences that are going to precede the divorce. However, the protective order process can be abused by people simply trying to get a leg up in the current or anticipated divorce litigation or custody litigation. By alleging domestic violence occurred when it didn’t really happen, one party may be attempting to get temporary possession of the residence, temporary custody of the children, or temporary supervision of the other party’s parenting time.
A protective order can also sometimes force separation instantly. Let’s suppose, for example, that two people are living in a home and have decided to get a divorce but neither is willing to leave. There are often times where one party may falsely allege domestic violence in order to force the removal of the other person from the home. This could potentially also force a quick order of temporary custody so that the accuser has an advantage in an upcoming custody dispute.
What Is Considered A Violation Of The Protective Order?
If someone violates the criminal provisions of a protective order the petitioner can contact law enforcement. Police may either cite the violator or even make an arrest and take him or her immediately to a general pending bail hearing if there is sufficient evidence or probable cause that the order was violated. As for violations against the civil provisions of a protective order, the petitioner would have to file an order to show cause against the alleged accused.
However, just because you have the option of calling law enforcement to help enforce the protective order, that doesn’t mean you can’t file an order to show cause for someone violating the civil provisions of the protective order as well. You can do both. However, most of the time people would rather have law enforcement do the work for them, being a more immediate result and could possibly result in instant incarceration.