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This document includes House Committee Amendments incorporated into the bill on Thu, Feb 7, 2013 at 12:07 PM by jeyring. --> This document includes House Floor Amendments incorporated into the bill on Fri, Feb 15, 2013 at 1:15 PM by lerror. --> 1
7 LONG TITLE
8 Committee Note:
9 The Law Enforcement and Criminal Justice Interim Committee recommended this bill.
10 General Description:
11 This bill provides for the issuance, modification, and enforcement of protective orders
12 between individuals who are, or have been, in a dating relationship.
13 Highlighted Provisions:
14 This bill:
15 . defines terms;
16 . provides for the issuance, modification, and enforcement of protective orders
17 between parties who are, or who have been, in a dating relationship when:
18 . the parties are emancipated or 18 years of age or older;
19 . the parties are, or have been, in a dating relationship with each other; and
20 . a party commits abuse or dating violence against the other party;
21 . describes the restrictions that a court may include in a protective order; and
22 . describes the conditions that may be placed on an alleged perpetrator of dating
23 violence in a protective order.
24 Money Appropriated in this Bill:
26 Other Special Clauses:
28 Utah Code Sections Affected:
30 78B-7-401, Utah Code Annotated 1953
31 78B-7-402, Utah Code Annotated 1953
32 78B-7-403, Utah Code Annotated 1953
33 78B-7-404, Utah Code Annotated 1953
34 78B-7-405, Utah Code Annotated 1953
35 78B-7-406, Utah Code Annotated 1953
36 78B-7-407, Utah Code Annotated 1953
38 Be it enacted by the Legislature of the state of Utah:
39 Section 1. Section 78B-7-401 is enacted to read:
41 78B-7-401. Title.
42 H. (1) .H This part is known as the "Dating Violence Protection Act."
42a H. (2) This part is not related to marriage. .H
43 Section 2. Section 78B-7-402 is enacted to read:
44 78B-7-402. Definitions.
45 As used in this part:
46 (1) "Abuse" means intentionally or knowingly:
47 (a) causing or attempting to cause physical harm to a dating partner; or
48 (b) placing a dating partner in reasonable fear of imminent physical harm.
49 (2) (a) "Dating partner" means a person who:
50 (i) (A) is an emancipated person under Section 15-2-1 or Title 78A, Chapter 6, Part 8,
51 Emancipation; or
52 (B) is 18 years of age or older; and
53 (ii) is, or has been, in a dating relationship with the other party.
54 (b) "Dating partner" does not include an intimate partner, as defined in federal law in
55 Title 18 U.S.C. Section 921.
56 (3) (a) "Dating relationship" means a social relationship of a romantic or intimate
57 nature, H. or a relationship which has romance or intimacy as a goal by one or
57a both parties, .H regardless of whether the relationship involves sexual intimacy.
58 (b) "Dating relationship" does not mean casual fraternization in a business,
59 educational, or social context.
60 (c) In determining, based on a totality of the circumstances, whether a dating
61 relationship exists:
62 (i) all relevant factors shall be considered, including:
63 (A) whether the parties developed interpersonal bonding above a mere casual
65 (B) the length of the parties' relationship;
66 (C) the nature and the frequency of the parties' interactions H. , including
66a communications indicating that the parties intended to begin a dating relationship .H ;
67 (D) the ongoing expectations of the parties, individual or jointly, with respect to the
69 (E) whether, by statement or conduct, the parties demonstrated an affirmation of their
70 relationship to others; and
71 (F) whether other reasons exist that support or detract from a finding that a dating
72 relationship exists; and
73 (ii) it is not necessary that all, or a particular number, of the factors described in
74 Subsection (3)(c)(i) are found to support the existence of a dating relationship.
75 (4) "Dating violence" means:
76 (a) any criminal offense involving violence or physical harm, or threat of violence or
77 physical harm, when committed by a person against a dating partner of the person; or
78 (b) any attempt, conspiracy, or solicitation by a person to commit a criminal offense
79 involving violence or physical harm against a dating partner of the person.
80 (5) "Dating violence protective order" means an order issued pursuant to this part
81 subsequent to a hearing on the petition, as described in Section 78B-7-403 .
82 (6) "Ex parte dating violence protective order" means an order issued without notice to
83 the H. [
84 (7) "Protective order" means:
85 (a) a dating violence protective order; or
86 (b) an ex parte dating violence protective order.
87 Section 3. Section 78B-7-403 is enacted to read:
88 78B-7-403. Abuse or danger of abuse -- Dating violence protective orders.
89 (1) A person may seek a protective order if the person is subjected to, or there is a
90 substantial likelihood the person will be subjected to:
91 (a) abuse by a dating partner of the person; or
92 (b) dating violence by a dating partner of the person.
93 (2) A person may seek an order described in Subsection (1) whether or not the person
94 has taken other action to end the relationship.
95 (3) A person seeking a protective order may include another party in the petition for a
96 protective order if:
97 (a) the person seeking the order meets the requirements of Subsection (1); and
98 (b) the other party:
99 (i) is a family or household member of the person seeking the protective order; and
100 (ii) there is a substantial likelihood the other party will be subjected to abuse by the
101 dating partner of the person.
102 (4) A person seeking a protective order under this part shall, to the extent possible,
103 provide information to facilitate identification of the respondent, including a name, Social
104 Security number, driver license number, date of birth, address, telephone number, and physical
106 (5) A petition seeking a protective order under this part may not be withdrawn without
107 written order of the court.
108 (6) (a) A person may not seek a protective order against an intimate partner, as defined
109 by federal law in Title 18 U.S.C. Section H. [
110 (b) A person may seek a protective order against H. a cohabitant, as defined by Section
110a 78B-7-102, or .H an intimate partner, as defined by
111 federal law, of the person under title 78B, Chapter 7, Part 1, Cohabitant Abuse Act.
112 Section 4. Section 78B-7-404 is enacted to read:
113 78B-7-404. Dating violence orders -- Ex parte dating violence protective orders --
114 Modification of orders -- Service of process -- Duties of the court.
115 (1) If it appears from a petition for a protective order or a petition to modify an existing
116 protective order that a dating partner of the petitioner has abused or committed dating violence
117 against the petitioner, H. [
118 (a) without notice, immediately issue an ex parte dating violence protective order
119 against the dating partner or modify an existing dating protect order ex parte if necessary to
120 protect the petitioner and all parties named in the petition; or
121 (b) upon notice to the respondent, issue a dating violence protective order or modify a
122 dating violence protective order after a hearing, regardless of whether the respondent appears.
123 (2) A H. district .H court may grant the following relief without notice in a dating
123a violence protective
124 order or a modification issued ex parte:
125 (a) prohibit the respondent from threatening to commit or committing dating violence
126 or abuse against the petitioner and any designated family or household member described in the
127 protective order;
128 (b) prohibit the respondent from telephoning, contacting, or otherwise communicating
129 with the petitioner or any designated family or household member, directly or indirectly;
130 (c) order that the respondent:
131 (i) is excluded and shall stay away from the petitioner's residence and its premises;
132 (ii) except as provided in Subsection (4), stay away from the petitioner's:
133 (A) school and the school's premises; and
134 (B) place of employment and its premises; and
135 (iii) stay away from any specified place frequented by the petitioner or any designated
136 family or household member;
137 (d) prohibit the respondent from being within a specified distance of the petitioner; and
138 (e) order any further relief that the court considers necessary to provide for the safety
139 and welfare of the petitioner and any designated family or household member.
140 (3) A court may grant the following relief in a dating violence protective order or a
141 modification of a dating violence protective order, after notice and a hearing, regardless of
142 whether the respondent appears:
143 (a) the relief described in Subsection (2); and
144 (b) except as provided in Subsection (5), upon finding that the respondent's use or
145 possession of a weapon poses a serious threat of harm to the petitioner or any designated family
146 or household member, prohibit the respondent from purchasing, using, or possessing a H. [
147 or other
148 (4) If the petitioner or designated family or household member attends the same school
149 as the respondent, or is employed at the same place of employment as the respondent, the
149a H. district .H court:
150 (a) may not enter an order under Subsection (2)(c)(ii) that excludes the respondent
151 from the respondent's school or place of employment; and
152 (b) may enter an order governing the respondent's conduct at the respondent's school or
153 place of employment.
154 (5) The H. district .H court may not prohibit the respondent from possessing a firearm:
155 (a) if the respondent has not been given notice of the petition for a protective order and
156 an opportunity to be heard; and
157 (b) unless H. [
157a (i) by a preponderance of the .H evidence that the respondent has committed
158 abuse or dating violence against the petitioner H. [
158a (ii) by clear and convincing evidence that the respondent's use or possession of a
158b firearm poses a serious threat of harm to petitioner or the designated family or household
158c member. .H
159 (6) Any protective order issued under this part shall expire 180 days after the day on
160 which the order is issued.
161 (7) After the H. district .H court issues a dating violence protective order, the
161a H. district .H court shall:
162 (a) as soon as possible, deliver the order to the county sheriff for service of process;
163 (b) make reasonable efforts at the hearing to ensure that the dating violence protective
164 order is understood by the petitioner and the respondent, if present;
165 (c) transmit electronically, by the end of the business day after the day on which the
166 order is issued, a copy of the dating violence protective order to the local law enforcement
167 agency designated by the petitioner; and
168 (d) transmit a copy of the protective order issued under this part in the same manner as
169 described in Section 78B-7-113 .
170 (8) (a) The county sheriff that receives the order from the court, pursuant to Subsection
171 (7)(a), shall:
172 (i) provide expedited service for protective orders issued in accordance with this part;
174 (ii) after the order has been served, transmit verification of service of process to the
175 statewide network described in Section 78B-7-110 .
176 (b) This section does not prohibit another law enforcement agency from providing
177 service of process if that law enforcement agency:
178 (i) has contact with the respondent and service by that law enforcement agency is
179 possible; or
180 (ii) determines that, under the circumstances, providing service of process on the
181 respondent is in the best interests of the petitioner.
182 (9) When a protective order is served on a respondent in jail, or other holding facility,
183 the law enforcement agency managing the facility shall make a reasonable effort to provide
184 notice to the petitioner at the time the respondent is released from incarceration.
185 (10) A H. district .H court may modify or vacate a protective order under this part after
185a notice and
186 hearing, if the petitioner:
187 (a) is personally served with notice of the hearing, as provided in the Utah Rules of
188 Civil Procedure, and appears before the court to give specific consent to the modification or
189 vacation of the provisions of the protective order; or
190 (b) submits an affidavit agreeing to the modification or vacation of the provisions of
191 the protective order.
192 (11) To the extent that the provisions of this part are more specific than the Utah Rules
193 of Civil Procedure regarding protective orders, the provisions of this part govern.
194 Section 5. Section 78B-7-405 is enacted to read:
195 78B-7-405. Hearings on ex parte dating violence protective orders.
196 (1) (a) Within 20 days after the day on which the court issues an ex parte protective
197 order, the H. district .H court shall set a date for a hearing on the petition.
198 (b) If, at the hearing described in Subsection (1)(a), the H. district .H court does not
198a issue a dating
199 violence protective order, the ex parte dating protective order shall expire, unless it is extended
200 by the H. district .H court. Extensions beyond the 20-day period may not be granted unless:
201 (i) the petitioner is unable to be present at the hearing;
202 (ii) the respondent has not been served; or
203 (iii) exigent circumstances exist.
204 (c) Under no circumstances may an ex parte order be extended beyond 180 days from
205 the day on which the court issues the initial ex parte protective order.
206 (d) If, at the hearing described in Subsection (1)(a), the H. district .H court issues a
206a dating violence
207 protective order, the ex parte protective order shall remain in effect until service of process of
208 the dating violence protective order is completed.
209 (e) A dating violence protective order issued after notice and a hearing shall remain in
210 effect from 180 days after the day on which the petition is issued.
211 (f) If the hearing on the petition is heard by a commissioner, either the petitioner or
212 respondent may file an objection within 10 calendar days after the day on which the
213 recommended order is entered, and the assigned judge shall hold a hearing on the objection
214 within 20 days after the day on which the objection is filed.
215 (2) Upon a hearing under this section, the H. district .H court may grant any of
215a the relief permitted
216 under Section 78B-7-404 , except the H. district .H court shall not grant the relief described in
217 78B-7-404 (3)(b) without providing the respondent notice and an opportunity to be heard.
218 (3) If a H. district .H court denies a petition for an ex parte dating violence
218a protective order or a
219 petition to modify a dating violence protective order ex parte, the H. district .H court
219a shall, upon the
220 petitioner's request:
221 (a) set the matter for hearing; and
222 (b) notify and serve the respondent.
223 Section 6. Section 78B-7-406 is enacted to read:
224 78B-7-406. Fees -- Service of process.
225 (1) Protective orders issued under this part shall be served by the sheriff's office,
226 constable's office, or any law enforcement agency or peace officer, in accordance with
227 Subsection 78B-7-404 (8).
228 (2) Fees may not be imposed by a court clerk, sheriff, constable, or law enforcement
229 agency for:
230 (a) filing a petition under this part;
231 (b) obtaining a protective order under this part; or
232 (c) service of a protective order issued under this part.
232a H. (3)(a) The offices of the court clerk shall provide forms and nonlegal assistance to an
232b individual seeking to proceed under this part.
232c (b) The Administrative Office of the Courts shall:
232d (i) develop and adopt uniform forms for petitions and orders for protection in
232e accordance with the provisions of this chapter; and
232f (ii) provide the forms described in Subsection(3)(b)(i) to the clerk of each court
232g authorized to issue protective orders.
232h (c) The forms described in Subsection(3)(b)(i) shall include:
232i (i) a statement notifying the petitioner for an ex parte dating violence protective order
232j that knowing falsification of any statement or information provided for the purpose of
232k obtaining a protective order may subject the petitioner to felony prosecution;
232l (ii) language stating violating of any criminal provision is a class B misdemeanor; and
232m (iii) a space for any information the petitioner is able to provide to facilitate
232n identification of the respondent, including Social Security number, driver license number, date
232o of birth, address, telephone number, and physical description.
232p (4) If the individual seeking to proceed under this chapter is not represented by an
232q attorney, it is the responsibility of the court clerk's office to provide:
232r (a) the forms adopted pursuant to Subsection (3);
232s (b) all other forms required to petition for an order for protection, including forms for
232u (c) except for as provided by Subsection (5), clerical assistance in filling out the forms
232v and filing the petition, in accordance with Subsection (3)(a);
232w (d) information regarding the means available for the service of process;
232x (e) a list of legal service organizations that may represent the petitioner in an action
232y brough under this part, with the phone numbers of those organizations; and
232z (f) written information regarding the procedure for transporting a jailed or
232aa imprisoned respondent to the protective order hearing, including an explanation for the
232ab use of transportation order forms when necessary.
232ac (5) A court clerk's office may designate any other entity, agency, or individual to
232ad provide the service described in Subsection (4)(c), but the court clerk's office is responsible
232ae to see that the service is provided.
232af (6) A petition for a dating violence protective order or ex parte dating violence
232ag protective order shall be in writing and verified.
232ah (7)(a) All protective orders issued under this part shall be issued in the form
232ai adopted by the Administrative Office of the Courts under Section (3)(b).
232aj (b) Each protective order issued under this part, except orders issued ex parte, shall
232ak include the following language:
232al "Respondent was afforded both notice and opportunity to be heard in the hearing that
232am gave rise to this order. Pursuant to the Violence Against Women Act of 1994, P.L. 103-322, 108
232an Stat. 1796, 18 U.S.C.A. 2265, this order is valid in all the United States, the District of
232ao Columbia, tribal lands, and United States territories. This order complies with the Uniform
232ap Interstate Enforcement of Domestic Violence Protection Orders Act." .H
233 Section 7. Section 78B-7-407 is enacted to read:
234 78B-7-407. Enforcement.
235 (1) A law enforcement officer shall, without a warrant, arrest a person if the officer has
236 probable cause to believe that the person has H. intentionally or knowingly .H violated a
236a protective order issued under this part,
237 regardless of whether the violation occurred in the presence of the officer.
238 (2) A violation of a protective order issued under this part constitutes a class B
Legislative Review Note
as of 11-7-12 5:08 PM