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H.B. 91





Sponsor: Patricia B. Larson

9    This act affects sections of Utah Code Annotated 1953 as follows:
10    AMENDS:
11         30-6-1, as last amended by Chapter 244, Laws of Utah 1996
12         30-6-4, as last amended by Chapter 244, Laws of Utah 1996
13         30-6-4.2, as last amended by Chapter 244, Laws of Utah 1996
14         30-6-4.3, as enacted by Chapter 300, Laws of Utah 1995
15    Be it enacted by the Legislature of the state of Utah:
16        Section 1. Section 30-6-1 is amended to read:
17         30-6-1. Definitions.
18        As used in this chapter:
19        (1) "Abuse" means attempting to cause, or intentionally or knowingly causing to an adult
20    or minor physical harm or intentionally placing another in fear of imminent physical harm.
21        (2) "Cohabitant" means an emancipated person pursuant to Section 15-2-1 or a person who
22    is 16 years of age or older who:
23        (a) is or was a spouse of the other party;
24        (b) is or was living as if a spouse of the other party;
25        (c) is related by blood or marriage to the other party;
26        (d) has one or more children in common with the other party; or
27        (e) resides or has resided in the same residence as the other party.

1        (3) Notwithstanding Subsection (2), "cohabitant" does not include the relationship of
2    natural parent, adoptive parent, or step-parent to a minor.
3        (4) "Court clerk" means a district court clerk or juvenile court clerk.
4        (5) "Department" means the Department of Human Services.
5        (6) "Domestic violence" means the same as that term is defined in Section 77-36-1.
6        (7) "Ex parte protective order" means an order issued without notice to the defendant in
7    accordance with this chapter.
8        (8) "Foreign protective order" means a protective order issued by another state, territory,
9    or possession of the United States, tribal lands of the United States, the Commonwealth of Puerto
10    Rico, or the District of Columbia shall be given full faith and credit in Utah, if the protective order
11    is similar to a protective order issued in compliance with Title 30, Chapter 6, Cohabitant Abuse
12    Act, or Title 77, Chapter 36, Cohabitant Abuse Procedures Act, and includes the following
13    requirements:
14        (a) the requirements of due process were met by the issuing court, including subject matter
15    and personal jurisdiction;
16        (b) the respondent received reasonable notice; and
17        (c) the respondent had an opportunity for a hearing regarding the protective order.
18        (9) "Law enforcement unit" or "law enforcement agency" means any public agency having
19    general police power and charged with making arrests in connection with enforcement of the
20    criminal statutes and ordinances of this state or any political subdivision.
21        (10) "Orders for protection" includes protective orders, ex parte protective orders, and
22    foreign protective orders.
23        [(10)] (11) "Peace officer" means those persons specified in Section 77-1a-1.
24        [(11)] (12) "Protective order" means a restraining order issued pursuant to this chapter
25    subsequent to a hearing on the petition, of which the petitioner has given notice in accordance with
26    this chapter.
27        Section 2. Section 30-6-4 is amended to read:
28         30-6-4. Forms for petitions and orders for protection -- Assistance.
29        (1) (a) The offices of the court clerk shall provide forms and nonlegal assistance to persons
30    seeking to proceed under this chapter.
31        (b) The Administrative Office of the Courts shall develop and adopt uniform forms for

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1    petitions and orders for protection in accordance with the provisions of this chapter on or before
2    September 1, 1995. That office shall provide the forms to the clerk of each court authorized to
3    issue [protective] orders for protection. The forms shall include:
4        (i) a statement notifying the petitioner for an ex parte protective order that knowing
5    falsification of any statement or information provided for the purpose of obtaining [a protective]
6    an order for protection may subject the petitioner to felony prosecution;
7        (ii) a separate [portion of the form] section for [those] the provisions[, the violation of
8    which is] of the order for protection which, if violated, would constitute a criminal offense, and
9    a separate [portion] section for [those] the provisions[, the violation of which is a civil violation,
10    as provided in] of the order which, if violated, would constitute a civil offense, in accordance with
11    Subsection 30-6-4.2[(6)](5);
12        (iii) language in the criminal [provision portion stating violation of any criminal provision]
13    section of the order which states that any violation of a provision in that section is a class A
14    misdemeanor, and language in the civil [portion] section of the order stating that any violation of
15    or failure to comply with a [civil] provision [is subject] in that section subjects the respondent to
16    contempt proceedings;
17        (iv) a space for information that the petitioner [is] may be able to provide in order to
18    facilitate identification of the respondent, [such as] including the respondent's social security
19    number, driver license number, date of birth, address, telephone number, and physical description;
20        (v) a space for the petitioner to request a [specific] specified period of time for the civil
21    provisions of the order to [be] remain in effect, not to exceed [150 days] one year, unless the
22    petitioner provides, in writing, the reason for [the requested extension of the length of time beyond
23    150 days] a request for a longer period of time;
24        (vi) a statement advising the petitioner that when a minor child is included in an [ex parte
25    protective order or a protective] order for protection, as part of either the criminal or the civil
26    [portion] section of the order, the petitioner may provide a copy of the order to the principal of the
27    school where the child attends; and
28        (vii) a statement advising the petitioner that if the respondent fails to return custody of a
29    minor child to the petitioner as ordered in [a protective] an order for protection, the petitioner may
30    obtain [from the court] a writ of assistance from the court.
31        (2) If the person seeking to proceed under this chapter is not represented by an attorney,

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1    it is the responsibility of the court clerk's office to provide:
2        (a) the forms adopted pursuant to Subsection (1);
3        (b) all other forms required to petition for an order for protection including, but not limited
4    to, forms for service;
5        (c) clerical assistance in filling out the forms and filing the petition, in accordance with
6    Subsection (1)(a). A court clerk's office may designate any other entity, agency, or person to
7    provide that service, but the court clerk's office is responsible to see that the service is provided;
8        (d) information regarding the means available for the service of process;
9        (e) a list of legal service organizations that may represent the petitioner in an action
10    brought under this chapter, together with the telephone numbers of those organizations; and
11        (f) written information regarding the procedure for transporting a jailed or imprisoned
12    respondent to the protective order hearing, including an explanation of the use of transportation
13    order forms when necessary.
14        (3) No charges may be imposed by a court clerk, constable, or law enforcement agency
15    for:
16        (a) filing a petition under this chapter;
17        (b) obtaining an ex parte protective order;
18        (c) obtaining copies, either certified or not certified, necessary for service or delivery to
19    law enforcement officials; or
20        (d) fees for service of a petition, ex parte protective order, or protective order.
21        (4) A petition for an order of protection shall be in writing and verified.
22        (5) (a) All orders for protection shall be issued in the form adopted by the Administrative
23    Office of the Courts pursuant to Subsection (1).
24        (b) Each [protective order] order for protection that is issued, except [orders issued] ex
25    parte protective orders, shall include the following language:
26        "Respondent was afforded both notice and opportunity to be heard in the hearing that gave
27    rise to this order. Pursuant to the Violence Against Women Act of 1994, P.L. 103-322, 108 Stat.
28    1796, 18 U.S.C.A. 2265, this order is valid in all the United States, the District of Columbia, tribal
29    lands, and United States territories."
30        Section 3. Section 30-6-4.2 is amended to read:
31         30-6-4.2. Orders for protection -- Modification of orders -- Service of process --

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1     Duties of the court.
2        (1) If it appears from a petition for an order for protection or a petition to modify an order
3    for protection that domestic violence or abuse has occurred or a modification of an order for
4    protection is required, a court may:
5        (a) without notice, immediately issue an [order for protection] ex parte protective order
6    or modify an [order for protection] ex parte protective order as it considers necessary to protect
7    the petitioner and all parties named to be protected in the petition; or
8        (b) upon notice, issue an order for protection or modify an order after a hearing, whether
9    or not the respondent appears.
10        (2) A court may grant the following relief without notice in an ex parte protective order
11    [for protection] or a modification issued ex parte:
12        (a) enjoin the respondent from threatening to commit or committing domestic violence or
13    abuse against the petitioner and any designated family or household member;
14        (b) prohibit the respondent from harassing, telephoning, contacting, or otherwise
15    communicating with the petitioner, directly or indirectly;
16        (c) order that the respondent [is] be excluded from the petitioner's residence and its
17    premises, and [order] that the respondent [to] stay away from the petitioner's residence, school, or
18    place of employment [of the petitioner, and] the premises of any of [these, or] those locations, and
19    any specified place frequented by the petitioner [and] or any designated family or household
20    member;
21        (d) upon finding that the respondent's use or possession of a weapon may pose a serious
22    threat of harm to the petitioner, prohibit the respondent from purchasing, using, or possessing a
23    firearm or any other weapon specified by the court;
24        (e) order possession and use of an automobile and other essential personal effects, and
25    direct the appropriate law enforcement officer to accompany the petitioner to the residence of the
26    parties to ensure that the petitioner is safely restored to possession of the residence, automobile,
27    and other essential personal effects, or to supervise the petitioner's or respondent's removal of
28    personal belongings;
29        (f) grant temporary custody of any minor children to the petitioner;
30        (g) order any further relief that the court considers necessary to provide for the safety and
31    welfare of the petitioner and any designated family or household member; and

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1        (h) if the petition requests child support or spousal support, at the hearing on the petition
2    order both parties to provide verification of current income, including year-to-date pay stubs or
3    employer statements of year-to-date or other period of earnings, as specified by the court, and
4    complete copies of tax returns from at least the most recent year.
5        (3) A court may grant the following relief in an order for protection or a modification of
6    an order after notice and hearing, whether or not the respondent appears:
7        (a) grant the relief described in Subsection (2); and
8        (b) specify arrangements for visitation of any minor child by the respondent and require
9    supervision of that visitation by a third party or deny visitation if necessary to protect the safety
10    of the petitioner or child.
11        (4) Following the [protective order] hearing on the order, the court shall:
12        (a) as soon as possible, deliver the order for protection to the county sheriff for service of
13    process;
14        (b) make reasonable efforts to ensure that the order for protection is understood by the
15    petitioner, and the respondent, if present;
16        (c) transmit, by the end of the next business day after the order is issued, a copy of the
17    order for protection to the local law enforcement agency or agencies designated by the petitioner;
18    and
19        (d) transmit a copy of the order to the statewide domestic violence network described in
20    Section 30-6-8.
21        [(6)] (5) (a) Each protective order shall include two separate [portions] sections, one for
22    provisions, the violation of which are criminal offenses, and one for provisions, the violation of
23    which are civil violations, as follows:
24        (i) criminal offenses are those under Subsections [30-6-4.2](2)(a) through (e), and under
25    Subsection [30-6-4.2](3)(a) as it refers to Subsections [30-6-4.2](2)(a) through (e); and
26        (ii) civil offenses are those under Subsections [30-6-4.2](2)(f) through (h), and Subsection
27    [30-6-4.2](3)(a) as it refers to Subsections [30-6-4.2](2)(f) through (h).
28        (b) The criminal provision portion shall include a statement that violation of any criminal
29    provision is a class A misdemeanor.
30        (c) The civil provision portion shall include a notice that violation of or failure to comply
31    with a civil provision is subject to contempt proceedings.

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1        [(7)] (6) The [protective] order for protection shall include:
2        (a) [a] the designation of a specific date, determined by the court, when the civil portion
3    of the [protective] order either expires or is scheduled for review by the court, [which date may]
4    not to exceed [150 days after] one year from the date the order is issued, unless the court [indicates
5    on the record] makes specific findings in the order regarding the reason for setting a date beyond
6    [150 days] that time;
7        (b) information that the petitioner is able to provide in order to facilitate identification of
8    the respondent, [such as] including social security number, driver license number, date of birth,
9    address, telephone number, and physical description; and
10        (c) a statement advising the petitioner that:
11        (i) after three years from the date [of issuance of] the [protective] order for protection was
12    issued, a hearing may be held to dismiss the criminal portion of the [protective] order;
13        (ii) the petitioner should, within [the] 30 days prior to the end of [the] that three-year
14    period, advise the court of the petitioner's current address for notice of any hearing; and
15        (iii) the address provided by the petitioner will not be made available to the respondent.
16        [(8)] (7) Child support and [spouse] spousal support orders issued as part of [a protective]
17    an order for protection are subject to mandatory income withholding under Title 62A, Chapter 11,
18    Part 4, Income Withholding, and Title 62A, Chapter 11, Part 5, Universal Income Withholding -
19    Non IV-D Obligees, except when the [protective] order is [issued] an ex parte protective order.
20        [(9)] (8) (a) The county sheriff that receives the order for protection from the court,
21    pursuant to Subsection [(5)(a)] (4), shall provide expedited service for orders for protection issued
22    in accordance with this chapter, and shall transmit verification of service of process, when the
23    order has been served, to the statewide domestic violence network described in Section 30-6-8.
24        (b) This section does not prohibit any law enforcement agency from providing service of
25    process if that law enforcement agency:
26        (i) has contact with the respondent and service by that law enforcement agency is possible;
27    or
28        (ii) determines that under the circumstances, providing service of process on the
29    respondent is in the best interests of the petitioner.
30        [(10) (a)] (9) When an order for protection is served on a respondent who is in a jail or
31    other holding facility, the law enforcement agency managing [the] that facility shall make [a] good

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1    faith, reasonable [effort] efforts to provide notice to the petitioner at the time the respondent is
2    released from incarceration[. (b) Notification of the petitioner shall consist of a good faith
3    reasonable effort to provide notification], including mailing a copy of [the] that notification to the
4    last-known address of the victim.
5        [(11)] (10) (a) A court may modify or vacate an order [of] for protection or any [provisions
6    in] provision of the order after notice and hearing, except as limited under Subsection (10)(b).
7        (b) Criminal provisions of [a protective] an order for protection may not be vacated within
8    three years of issuance, unless the petitioner:
9        (i) is personally served with notice of the hearing [as provided] in accordance with Rules
10    4 and 5, Utah Rules of Civil Procedure, and [the petitioner] personally appears before the court and
11    gives specific consent to the vacation of the criminal provisions of the [protective] order; or
12        (ii) submits a verified affidavit, stating agreement to the vacation of the criminal
13    provisions of the [protective] order.
14        [(12) A protective] (11) An order for protection may be modified without a showing of
15    substantial and material change in circumstances.
16        [(13)] (12) Insofar as the provisions of this chapter are more specific than the Utah Rules
17    of Civil Procedure[,] regarding [protective] orders for protection, the provisions of this chapter
18    shall govern.
19        Section 4. Section 30-6-4.3 is amended to read:
20         30-6-4.3. Hearings on ex parte protective orders -- Issuance of protective orders --
21     Length of effect.
22        (1) (a) When a court issues an ex parte protective order [the court] it shall set a date for
23    a hearing on the petition within 20 days after the ex parte order is issued.
24        (b) If at that hearing the court does not issue a protective order, the ex parte protective
25    order shall expire, unless it is otherwise modified by the court.
26        (c) If at that hearing the court issues a protective order, the ex parte protective order
27    remains in effect until service of process of the protective order is completed.
28        (d) A protective order issued after notice and a hearing is effective until further order of
29    the court.
30        (2) (a) The court shall, in accordance with Section 30-6-4.2:
31        (i) as soon as possible, deliver the ex parte protective order to the county sheriff for service

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1    of process;
2        (ii) make reasonable efforts to ensure that the ex parte protective order is understood by
3    the petitioner; and
4        (iii) transmit a copy of the ex parte protective order to the statewide domestic violence
5    network described in Section 30-6-8.
6        (b) The county sheriff shall provide expedited service of process, in accordance with
7    Section 30-6-4.2.
8        [(2)] (3) Upon a hearing under this section, the court may grant any of the relief described
9    in Section 30-6-4.2.
10        [(3)] (4) When a court denies a petition for an ex parte protective order or a petition to
11    modify an ex parte protective order [for protection ex parte], the court shall set the matter for
12    hearing upon notice to the respondent.

Legislative Review Note
    as of 1-23-97 9:46 AM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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