H.B. 149

1

PROTECTIVE ORDER AMENDMENTS
2 2008 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Lorie D. Fowlke
5 Senate Sponsor: ____________
6
7 LONG TITLE
8 General Description:
9 This bill allows for the appointment of a Guardian Ad Litem when a protective order is
10 issued and there are minor children in the home, and prohibits extension of the 20-day
11 period for an ex parte protective order without the respondent's consent.
12 Highlighted Provisions:
13 This bill:
14 . gives the court authority to appoint a Guardian Ad Litem when an ex parte
15 protective order is issued and there are minor children between the parties;
16 . prohibits extension of the 20-day hearing period without the respondent's consent if
17 no hearing was held; and
18 . provides direction for the dismissal of protective orders in place longer than two
19 years.
20 Monies Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 None
24 Utah Code Sections Affected:
25 AMENDS:
26 30-6-4.2, as last amended by Laws of Utah 2005, Chapter 156
27 30-6-4.3, as last amended by Laws of Utah 2001, Chapter 247

28 30-6-15, as enacted by Laws of Utah 2003, Chapter 68
29
30 Be it enacted by the Legislature of the state of Utah:
31 Section 1. Section 30-6-4.2 is amended to read:
32 30-6-4.2. Protective orders -- Ex parte protective orders -- Modification of orders
33 -- Service of process -- Duties of the court.
34 (1) If it appears from a petition for an order for protection or a petition to modify an
35 order for protection that domestic violence or abuse has occurred or a modification of an order
36 for protection is required, a court may:
37 (a) without notice, immediately issue an order for protection ex parte or modify an
38 order for protection ex parte as it considers necessary to protect the petitioner and all parties
39 named to be protected in the petition; or
40 (b) upon notice, issue an order for protection or modify an order after a hearing,
41 whether or not the respondent appears.
42 (2) A court may grant the following relief without notice in an order for protection or a
43 modification issued ex parte:
44 (a) enjoin the respondent from threatening to commit or committing domestic violence
45 or abuse against the petitioner and any designated family or household member;
46 (b) prohibit the respondent from harassing, telephoning, contacting, or otherwise
47 communicating with the petitioner, directly or indirectly;
48 (c) order that the respondent is excluded from the petitioner's residence and its
49 premises, and order the respondent to stay away from the residence, school, or place of
50 employment of the petitioner, and the premises of any of these, or any specified place
51 frequented by the petitioner and any designated family or household member;
52 (d) upon finding that the respondent's use or possession of a weapon may pose a
53 serious threat of harm to the petitioner, prohibit the respondent from purchasing, using, or
54 possessing a firearm or other weapon specified by the court;
55 (e) order possession and use of an automobile and other essential personal effects, and
56 direct the appropriate law enforcement officer to accompany the petitioner to the residence of
57 the parties to ensure that the petitioner is safely restored to possession of the residence,
58 automobile, and other essential personal effects, or to supervise the petitioner's or respondent's

59 removal of personal belongings;
60 (f) grant to the petitioner temporary custody of any minor children of the parties;
61 (g) order the appointment of a Guardian Ad Litem to represent the interests of any
62 minor children of the parties;
63 [(g)] (h) order any further relief that the court considers necessary to provide for the
64 safety and welfare of the petitioner and any designated family or household member; and
65 [(h)] (i) if the petition requests child support or spousal support, at the hearing on the
66 petition order both parties to provide verification of current income, including year-to-date pay
67 stubs or employer statements of year-to-date or other period of earnings, as specified by the
68 court, and complete copies of tax returns from at least the most recent year.
69 (3) A court may grant the following relief in an order for protection or a modification
70 of an order after notice and hearing, whether or not the respondent appears:
71 (a) grant the relief described in Subsection (2); and
72 (b) specify arrangements for parent-time of any minor child by the respondent and
73 require supervision of that parent-time by a third party or deny parent-time if necessary to
74 protect the safety of the petitioner or child.
75 (4) Following the protective order hearing, the court shall:
76 (a) as soon as possible, deliver the order to the county sheriff for service of process;
77 (b) make reasonable efforts to ensure that the order for protection is understood by the
78 petitioner, and the respondent, if present;
79 (c) transmit, by the end of the next business day after the order is issued, a copy of the
80 order for protection to the local law enforcement agency or agencies designated by the
81 petitioner; and
82 (d) transmit a copy of the order to the statewide domestic violence network described
83 in Section 30-6-8 .
84 (5) (a) Each protective order shall include two separate portions, one for provisions, the
85 violation of which are criminal offenses, and one for provisions, the violation of which are civil
86 violations, as follows:
87 (i) criminal offenses are those under Subsections (2)(a) through (e), and under
88 Subsection (3)(a) as it refers to Subsections (2)(a) through (e); and
89 (ii) civil offenses are those under Subsections (2)(f) [through], (h), and (i), and

90 Subsection (3)(a) as it refers to Subsections (2)(f) [through], (h), and (i).
91 (b) The criminal provision portion shall include a statement that violation of any
92 criminal provision is a class A misdemeanor.
93 (c) The civil provision portion shall include a notice that violation of or failure to
94 comply with a civil provision is subject to contempt proceedings.
95 (6) The protective order shall include:
96 (a) a designation of a specific date, determined by the court, when the civil portion of
97 the protective order either expires or is scheduled for review by the court, which date may not
98 exceed 150 days after the date the order is issued, unless the court indicates on the record the
99 reason for setting a date beyond 150 days;
100 (b) information the petitioner is able to provide to facilitate identification of the
101 respondent, such as Social Security number, driver license number, date of birth, address,
102 telephone number, and physical description; and
103 (c) a statement advising the petitioner that:
104 (i) after two years from the date of issuance of the protective order, a hearing may be
105 held to dismiss the criminal portion of the protective order;
106 (ii) the petitioner should, within the 30 days prior to the end of the two-year period,
107 advise the court of the petitioner's current address for notice of any hearing; and
108 (iii) the address provided by the petitioner will not be made available to the respondent.
109 (7) Child support and spouse support orders issued as part of a protective order are
110 subject to mandatory income withholding under Title 62A, Chapter 11, Part 4, Income
111 Withholding in IV-D Cases, and Title 62A, Chapter 11, Part 5, Income Withholding in Non
112 IV-D Cases, except when the protective order is issued ex parte.
113 (8) (a) The county sheriff that receives the order from the court, pursuant to Subsection
114 (5)(a), shall provide expedited service for orders for protection issued in accordance with this
115 chapter, and shall transmit verification of service of process, when the order has been served, to
116 the statewide domestic violence network described in Section 30-6-8 .
117 (b) This section does not prohibit any law enforcement agency from providing service
118 of process if that law enforcement agency:
119 (i) has contact with the respondent and service by that law enforcement agency is
120 possible; or

121 (ii) determines that under the circumstances, providing service of process on the
122 respondent is in the best interests of the petitioner.
123 (9) (a) When an order is served on a respondent in a jail or other holding facility, the
124 law enforcement agency managing the facility shall make a reasonable effort to provide notice
125 to the petitioner at the time the respondent is released from incarceration.
126 (b) Notification of the petitioner shall consist of a good faith reasonable effort to
127 provide notification, including mailing a copy of the notification to the last-known address of
128 the victim.
129 (10) A court may modify or vacate an order of protection or any provisions in the order
130 after notice and hearing, except that the criminal provisions of a protective order may not be
131 vacated within two years of issuance unless the petitioner:
132 (a) is personally served with notice of the hearing as provided in Rules 4 and 5, Utah
133 Rules of Civil Procedure, and the petitioner personally appears before the court and gives
134 specific consent to the vacation of the criminal provisions of the protective order; or
135 (b) submits a verified affidavit, stating agreement to the vacation of the criminal
136 provisions of the protective order.
137 (11) A protective order may be modified without a showing of substantial and material
138 change in circumstances.
139 (12) Insofar as the provisions of this chapter are more specific than the Utah Rules of
140 Civil Procedure, regarding protective orders, the provisions of this chapter govern.
141 Section 2. Section 30-6-4.3 is amended to read:
142 30-6-4.3. Hearings on ex parte orders.
143 (1) (a) When a court issues an ex parte protective order the court shall set a date for a
144 hearing on the petition within 20 days after the ex parte order is issued.
145 (b) If at that hearing the court does not issue a protective order, the ex parte protective
146 order shall expire, unless it is otherwise extended by the court. Extensions beyond the 20-day
147 period may not be granted unless the respondent:
148 (i) has not been served;
149 (ii) has had the opportunity to present a defense at the hearing; or
150 (iii) requests that the ex parte order be extended.
151 (c) Under no circumstances may an ex parte order be extended beyond 180 days from

152 the date of initial issuance.
153 [(c)] (d) If at that hearing the court issues a protective order, the ex parte protective
154 order remains in effect until service of process of the protective order is completed.
155 [(d)] (e) A protective order issued after notice and a hearing is effective until further
156 order of the court.
157 [(e)] (f) If the hearing on the petition is heard by a commissioner, either the petitioner
158 or respondent may file an objection within ten days of the entry of the recommended order and
159 the assigned judge shall hold a hearing within 20 days of the filing of the objection.
160 (2) Upon a hearing under this section, the court may grant any of the relief described in
161 Section 30-6-4.2 .
162 (3) When a court denies a petition for an ex parte protective order or a petition to
163 modify an order for protection ex parte, the court shall set the matter for hearing upon notice to
164 the respondent.
165 (4) A respondent who has been served with an ex parte protective order may seek to
166 vacate the ex parte protective order prior to the hearing scheduled pursuant to Subsection (1)(a)
167 by filing a verified motion to vacate. The respondent's verified motion to vacate and a notice
168 of hearing on that motion shall be personally served on the petitioner at least two days prior to
169 the hearing on the motion to vacate.
170 Section 3. Section 30-6-15 is amended to read:
171 30-6-15. Dismissal of protective order.
172 [When a protective order exists and]
173 (1) A protective order that has been in effect for at least two years may be dismissed if
174 the court determines that the petitioner no longer has a reasonable fear of future abuse. In
175 determining whether the petitioner no longer has a reasonable fear of future abuse, the court
176 shall consider the following factors:
177 (a) whether the respondent has complied with treatment recommendations related to
178 domestic violence, entered at the time the protective order was entered;
179 (b) whether the protective order was violated during the time it was in force;
180 (c) claims of harassment, abuse, or violence by either party during the time the
181 protective order was in force;
182 (d) counseling or therapy undertaken by either party;

183 (e) impact on the well-being of any minor children of the parties, if relevant; and
184 (f) any other factors the court considers relevant to the case before it.
185 (2) Notice of a motion to dismiss a protective order shall be given to the petitioner in a
186 protective order action in accordance with the Utah Rules of Civil Procedure.
187 (3) If a divorce proceeding is pending between the [same] parties [named in the] to a
188 protective order, the protective order shall be dismissed when the court issues a decree of
189 divorce for the parties if:
190 (a) the petitioner in the protective order action is present or has been given notice in
191 both the divorce and protective order action of the hearing[,]; and
192 (b) the court specifically finds that the order need not continue. [If]
193 (4) When the court dismisses [the] a protective order, the court shall immediately issue
194 an order of dismissal to be filed in the protective order action and transmit a copy of the order
195 of dismissal to the statewide domestic violence network as described in Section 30-6-8 .




Legislative Review Note
as of 1-21-08 6:16 PM

Office of Legislative Research and General Counsel