H.B. 290

This document includes House Committee Amendments incorporated into the bill on Fri, Feb 3, 2006 at 1:26 PM by ddonat. --> 1

PROTECTIVE ORDER AMENDMENTS
2 2006 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Lorie D. Fowlke
5 Senate Sponsor: Lyle W. Hillyard
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; and
16 . prohibits extension of the 20-day hearing period without the respondent's consent if
17 no hearing was held.
18 Monies Appropriated in this Bill:
19 None
20 Other Special Clauses:
21 None
22 Utah Code Sections Affected:
23 AMENDS:
24 30-6-4.2, as last amended by Chapter 156, Laws of Utah 2005
25 30-6-4.3, as last amended by Chapter 247, Laws of Utah 2001
26
27 Be it enacted by the Legislature of the state of Utah:

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

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

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

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

148h 120 days from the date of service upon the respondent. .H
149 [(c)] H. [ (d) ] (g) .H If at H. [ that ] the .H hearing the court issues a protective order,
149a the ex parte protective
150 order remains in effect until service of process of the protective order is completed.
151 [(d)] H. [ (e) ] (h) .H A protective order issued after notice and a hearing is effective until
151a further

152 order of the court.
153 [(e)] H. [ (f) ] (i) .H If the hearing on the petition is heard by a commissioner, either the
153a petitioner
154 or respondent may file an objection within ten days of the entry of the recommended order and
155 the assigned judge shall hold a hearing within 20 days of the filing of the objection.
156 (2) Upon a hearing under this section, the court may grant any of the relief described in
157 Section 30-6-4.2 .
158 (3) When a court denies a petition for an ex parte protective order or a petition to
159 modify an order for protection ex parte, the court shall set the matter for hearing upon notice to
160 the respondent.
161 (4) A respondent who has been served with an ex parte protective order may seek to
162 vacate the ex parte protective order prior to the hearing scheduled pursuant to Subsection (1)(a)
163 by filing a verified motion to vacate. The respondent's verified motion to vacate and a notice
164 of hearing on that motion shall be personally served on the petitioner at least two days prior to
165 the hearing on the motion to vacate.




Legislative Review Note
as of 1-13-06 6:41 AM

Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel