What Is The Process Of Filing For A Child Protective Order?
The process of filing for a child protective order is similar to an adult protective order. A temporary protective order usually issues ex-parte, meaning both sides have not had an opportunity to argue before the judge before it enters. Once someone files a petition for the entry of a child protective order, they also submit a proposed temporary protective order for the court to sign. If the court believes that there is jurisdiction and that the allegations in the petition satisfies the definitions of abuse, then the court can issue a temporary protective order which will then go out to law enforcement and will be served on the respondent. The temporary protective order expires after twenty days, or whenever the hearing is scheduled, whichever occurs first.
The court is required to schedule a hearing within those twenty days upon entry of the temporary protective order. Once the respondent is served with the temporary protective order, they will have notice of the date and time of the hearing, and they must show up to defend themselves. Depending on whether you are in a metropolitan or a rural area in the state of Utah, you may have either a court commissioner or a judge who will hear the case. A court commissioner does not have the broad expanse of powers that a judge has. They have a certain amount of judicial authority to hear matters on a temporary basis.
If the matter is heard before a court commissioner, then likely no evidence will be taken. This means that the court will decide the issue based on proffer and a proffer would occur when let us say the attorney for the petitioner would stand up and say, “Your Honor, here is my client. His or her name is so and so, and if called to testify today, she would state following. She has brought with her the following witnesses, and if called to testify, this is what they would say”. Then the respondent’s attorney would get up and say, “Here is my client, his or her name is so and so and if called to testify, here’s what he or she would say and here are his or her witnesses and if called to testify, this is what they would say”, and the commissioner would make a determination about whether or not there are grounds for entry of a child protective order.
If the matter is being heard before a judge, then the judge can choose to have a proffer hearing, like the one described above, or the court can choose to take evidence, meaning that witness by witness, they will each be put on the stand, examined and cross-examined. If a proffer hearing is held before a commissioner, and either side wishes to object to the commissioner’s ruling, they are allowed to file an objection within fourteen days after the commissioner enters his or her ruling. At that point, the judge can schedule a hearing and may choose to hear the matter with fresh eyes. If a protective order enters, then usually the court will sign the protective order in the presence of the respondent and serve them with the copy of it right in court. It is in effect at that moment. If the respondent violates the terms of the child protective order, then they can be arrested.
When Is A Guardian Ad Litem Appointed In This Scenario?
In the state of Utah, Guardian ad Litems are not just laypeople. They are attorneys who are the voice for the children and they represent the children. The court has the discretion to appoint a Guardian ad Litem on any case where abuse or neglect has been alleged. On rare occasions, a court declines to appoint a “GAL” in a child protective order matter, but most of the time, they will appoint an attorney guardian ad litem.
What Role Do Evidence Or Witnesses Play In Obtaining A Child Protective Order?
The same rule of evidence that applies in any civil matter also applies in protective orders. There are certain additional rules in juvenile court. Juvenile court has the authority to refer child protective orders to the district court. The district court is the court of general jurisdiction in Utah where divorces, paternity actions, custody actions and those kinds of things take place. Juvenile court does not hear these actions. The district court cannot refer a child protective order to the juvenile court, but the juvenile court has the authority to refer the matter over to the district court if there is a proceeding in a district court that might impact or be impacted by the protective order matter.
For example, if there is a custody case in district court, and one party to that custody case files a request for a protective order in the juvenile court system, the juvenile court will look and see if there is something in the district court and say, “Let’s have one judge hear everything, so we don’t risk two judges making different rulings regarding the best interest of the child”. But otherwise, the usual rules of evidence apply, and it is extremely important to make sure the evidence is presented in the right way, is admissible, and witness testimonies appear in the court in the appropriate way.
If the matter is being heard before a commissioner, then there one rule allows witness statements to be submitted by an affidavit or declaration rather than having those people in the courtroom. But if a judge is presiding over the hearing, that rule does not apply and your witnesses must be in the courtroom and ready to testify. Without having the necessary evidence at the hearing, the court will likely find that the petitioner failed to meet his or her burden of proof, and allow the ex parte or temporary protective order to expire and the matter will be dismissed.
For more information on Filing For A Child Protective Order, an initial consultation is your next best step. Contact Us online or call us to arrange a consultation at (801) 616-3301 today.