This document includes Senate Committee Amendments incorporated into the bill on Mon, Mar 7, 2016 at 8:42 AM by lpoole.
Senator Alvin B. Jackson proposes the following substitute bill:


1     
FALSIFICATION OF INFORMATION IN A PROTECTIVE

2     
ORDER PROCEEDING

3     
2016 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Alvin B. Jackson

6     
House Sponsor: Brian M. Greene

7     

8     LONG TITLE
9     General Description:
10          This bill amends provisions relating to protective orders and child protective orders
11     when a party knowingly provides false information.
12     Highlighted Provisions:
13          This bill:
14          ▸     provides that a party may bring a petition to allege that the other party knowingly
15     falsified a material statement or material information for the purpose of obtaining a
16     protective order or a child protective order; and
17          ▸     requires a court to sanction a party who knowingly falsified a material statement or
18     material information.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          78B-7-102, as last amended by Laws of Utah 2013, Chapter 348

26          78B-7-105, as last amended by Laws of Utah 2009, Chapter 232
27          78B-7-115, as last amended by Laws of Utah 2009, Chapter 232
28          78B-7-201, as renumbered and amended by Laws of Utah 2008, Chapter 3
29          78B-7-203, as last amended by Laws of Utah 2010, Chapter 34
30          78B-7-207, as renumbered and amended by Laws of Utah 2008, Chapter 3
31     ENACTS:
32          78B-7-204.5, Utah Code Annotated 1953
33     

34     Be it enacted by the Legislature of the state of Utah:
35          Section 1. Section 78B-7-102 is amended to read:
36          78B-7-102. Definitions.
37          As used in this chapter:
38          (1) "Abuse" means intentionally or knowingly causing or attempting to cause a
39     cohabitant physical harm or intentionally or knowingly placing a cohabitant in reasonable fear
40     of imminent physical harm.
41          (2) "Cohabitant" means an emancipated person pursuant to Section 15-2-1 or a person
42     who is 16 years of age or older who:
43          (a) is or was a spouse of the other party;
44          (b) is or was living as if a spouse of the other party;
45          (c) is related by blood or marriage to the other party;
46          (d) has or had one or more children in common with the other party;
47          (e) is the biological parent of the other party's unborn child; or
48          (f) resides or has resided in the same residence as the other party.
49          (3) Notwithstanding Subsection (2), "cohabitant" does not include:
50          (a) the relationship of natural parent, adoptive parent, or step-parent to a minor; or
51          (b) the relationship between natural, adoptive, step, or foster siblings who are under 18
52     years of age.
53          (4) "Court clerk" means a district court clerk.
54          (5) "Domestic violence" means the same as that term is defined in Section 77-36-1.
55          (6) "Ex parte protective order" means an order issued without notice to the defendant in
56     accordance with this chapter.

57          (7) "Foreign protection order" is as defined in Section 78B-7-302.
58          (8) "Law enforcement unit" or "law enforcement agency" means any public agency
59     having general police power and charged with making arrests in connection with enforcement
60     of the criminal statutes and ordinances of this state or any political subdivision.
61          (9) "Material statement" or "material information" means a statement made or
62     information given, by a party, that contains an allegation of abuse or domestic violence.
63          [(9)] (10) "Peace officer" means those persons specified in Title 53, Chapter 13, Peace
64     Officer Classifications.
65          [(10)] (11) "Protective order" means an order issued pursuant to this chapter
66     subsequent to a hearing on the petition, of which the petitioner and respondent have been given
67     notice in accordance with this chapter.
68          Section 2. Section 78B-7-105 is amended to read:
69          78B-7-105. Forms for petitions and protective orders -- Assistance.
70          (1) (a) The offices of the court clerk shall provide forms and nonlegal assistance to
71     persons seeking to proceed under this chapter.
72          (b) The Administrative Office of the Courts shall develop and adopt uniform forms for
73     petitions and orders for protection in accordance with the provisions of this chapter. That
74     office shall provide the forms to the clerk of each court authorized to issue protective orders.
75     The forms shall include:
76          (i) a statement notifying the petitioner for an ex parte protective order that knowing
77     falsification of any material statement or material information provided for the purpose of
78     obtaining a protective order may subject the petitioner to felony prosecution;
79          (ii) a separate portion of the form for those provisions, the violation of which is a
80     criminal offense, and a separate portion for those provisions, the violation of which is a civil
81     violation, as provided in Subsection 78B-7-106(5);
82          (iii) language in the criminal provision portion stating violation of any criminal
83     provision is a class A misdemeanor, and language in the civil portion stating violation of or
84     failure to comply with a civil provision is subject to contempt proceedings;
85          (iv) a space for information the petitioner is able to provide to facilitate identification
86     of the respondent, such as social security number, driver license number, date of birth, address,
87     telephone number, and physical description;

88          (v) a space for the petitioner to request a specific period of time for the civil provisions
89     to be in effect, not to exceed 150 days, unless the petitioner provides in writing the reason for
90     the requested extension of the length of time beyond 150 days;
91          (vi) a statement advising the petitioner that when a [minor] child is included in an ex
92     parte protective order or a protective order, as part of either the criminal or the civil portion of
93     the order, the petitioner may provide a copy of the order to the principal of the school where the
94     child attends; and
95          (vii) a statement advising the petitioner that if the respondent fails to return custody of
96     a minor [child] to the petitioner as ordered in a protective order, the petitioner may obtain from
97     the court a writ of assistance.
98          (2) If the person seeking to proceed under this chapter is not represented by an
99     attorney, it is the responsibility of the court clerk's office to provide:
100          (a) the forms adopted pursuant to Subsection (1);
101          (b) all other forms required to petition for an order for protection including, but not
102     limited to, forms for service;
103          (c) clerical assistance in filling out the forms and filing the petition, in accordance with
104     Subsection (1)(a). A court clerk's office may designate any other entity, agency, or person to
105     provide that service, but the court clerk's office is responsible to see that the service is
106     provided;
107          (d) information regarding the means available for the service of process;
108          (e) a list of legal service organizations that may represent the petitioner in an action
109     brought under this chapter, together with the telephone numbers of those organizations; and
110          (f) written information regarding the procedure for transporting a jailed or imprisoned
111     respondent to the protective order hearing, including an explanation of the use of transportation
112     order forms when necessary.
113          (3) No charges may be imposed by a court clerk, constable, or law enforcement agency
114     for:
115          (a) filing a petition under this chapter;
116          (b) obtaining an ex parte protective order;
117          (c) obtaining copies, either certified or not certified, necessary for service or delivery to
118     law enforcement officials; or

119          (d) fees for service of a petition, ex parte protective order, or protective order.
120          (4) A petition for an order of protection shall be in writing and verified.
121          (5) (a) All orders for protection shall be issued in the form adopted by the
122     Administrative Office of the Courts pursuant to Subsection (1).
123          (b) Each protective order issued, except orders issued ex parte, shall include the
124     following language:
125          "Respondent was afforded both notice and opportunity to be heard in the hearing that
126     gave rise to this order. Pursuant to the Violence Against Women Act of 1994, P.L. 103-322,
127     108 Stat. 1796, 18 U.S.C.A. 2265, this order is valid in all the United States, the District of
128     Columbia, tribal lands, and United States territories. This order complies with the Uniform
129     Interstate Enforcement of Domestic Violence Protection Orders Act."
130          (c) Each protective order issued in accordance with this part, including protective
131     orders issued ex parte, shall include the following language:
132          "NOTICE TO PETITIONER: The court may amend or dismiss a protective order after
133     one year if it finds that the basis for the issuance of the protective order no longer exists and the
134     petitioner has repeatedly acted in contravention of the protective order provisions to
135     intentionally or knowingly induce the respondent to violate the protective order, demonstrating
136     to the court that the petitioner no longer has a reasonable fear of the respondent."
137          Section 3. Section 78B-7-115 is amended to read:
138          78B-7-115. Dismissal of protective order.
139          (1) A protective order that has been in effect for at least two years may be dismissed if
140     the court determines that the petitioner no longer has a reasonable fear of future abuse. In
141     determining whether the petitioner no longer has a reasonable fear of future abuse, the court
142     shall consider the following factors:
143          (a) whether the respondent has complied with treatment recommendations related to
144     domestic violence, entered at the time the protective order was entered;
145          (b) whether the protective order was violated during the time it was in force;
146          (c) claims of harassment, abuse, or violence by either party during the time the
147     protective order was in force;
148          (d) counseling or therapy undertaken by either party;
149          (e) impact on the well-being of any minor children of the parties, if relevant; and

150          (f) any other factors the court considers relevant to the case before it.
151          (2) The court may amend or dismiss a protective order issued in accordance with this
152     part that has been in effect for at least one year if it finds that:
153          (a) the basis for the issuance of the protective order no longer exists;
154          (b) the petitioner has repeatedly acted in contravention of the protective order
155     provisions to intentionally or knowingly induce the respondent to violate the protective order;
156          (c) the petitioner's actions demonstrate that the petitioner no longer has a reasonable
157     fear of the respondent; and
158          (d) the respondent has not been convicted of a protective order violation or any crime
159     of violence subsequent to the issuance of the protective order, and there are no unresolved
160     charges involving violent conduct still on file with the court.
161          (3) (a) Either party may file a petition to allege that the other party knowingly falsified
162     a material statement or material information:
163          (i) for the purpose of obtaining a protective order; or
164          (ii) in a protective order proceeding.
165          (b) The court shall enter sanctions against [either] a party if the court determines that
166     [either] the party [acted]:
167          [(a)] (i) acted in bad faith; [or]
168          [(b)] (ii) acted with intent to harass or intimidate [either] the other party[.]; or
169          (iii) knowingly falsified a material statement or material information as described in
170     Subsection (3)(a).
171          (c) Sanctions shall include:
172          (i) a monetary penalty to be awarded to the harmed party;
173          (ii) an award of reasonable attorney fees and costs; and
174          (iii) any other sanction that the court considers appropriate.
175          (d) The court shall retain jurisdiction to hear a petition described in Subsection (3)(a) if
176     the petition was filed within 45 days after the court dismisses or vacates a protective order.
177          Ŝ→ [
(e) The court shall, if the party who filed the petition described in Subsection (3)(a)
178     agrees, refer any evidence of falsification to the district attorney or county attorney for
179     screening of criminal charges.
] ←Ŝ

180          (4) Notice of a motion to dismiss a protective order shall be made by personal service

181     on the petitioner in a protective order action as provided in Rules 4 and 5, Utah Rules of Civil
182     Procedure.
183          (5) If a divorce proceeding is pending between the parties to a protective order, the
184     protective order shall be dismissed when the court issues a decree of divorce for the parties if:
185          (a) the petitioner in the protective order action is present or has been given notice in
186     both the divorce and protective order action of the hearing; and
187          (b) the court specifically finds that the order need not continue.
188          (6) When the court dismisses a protective order, the court shall immediately issue an
189     order of dismissal to be filed in the protective order action and transmit a copy of the order of
190     dismissal to the statewide domestic violence network as described in Section 78B-7-113.
191          Section 4. Section 78B-7-201 is amended to read:
192          78B-7-201. Definitions.
193          As used in this chapter:
194          (1) "Abuse" means physical abuse or sexual abuse.
195          (2) "Court" means the district court or juvenile court.
196          (3) "Material statement" or "material information" means the same as those terms are
197     defined in Section 78B-7-102.
198          [(3)] (4) All other terms have the same meaning as defined in Section 78A-6-105.
199          Section 5. Section 78B-7-203 is amended to read:
200          78B-7-203. Hearing.
201          (1) If an ex parte order is granted, the court shall schedule a hearing within 20 days after
202     the ex parte determination. If an ex parte order is denied, the court, upon the request of the
203     petitioner, shall schedule a hearing within 20 days after the ex parte determination.
204          (2) The petition, ex parte child protective order, and notice of hearing shall be served
205     on the respondent, the minor's parent or guardian, and, if appointed, the guardian ad litem. The
206     notice shall contain:
207          (a) the name and address of the person to whom it is directed;
208          (b) the date, time, and place of the hearing;
209          (c) the name of the minor on whose behalf a petition is being brought; and
210          (d) a statement that a person is entitled to have an attorney present at the hearing.
211          (3) The court shall provide an opportunity for any person having relevant knowledge to

212     present evidence or information. The court may hear statements by counsel.
213          (4) An agent of the division served with a subpoena in compliance with the Utah Rules
214     of Civil Procedure shall testify in accordance with the Utah Rules of Evidence.
215          (5) If the court determines, based on a preponderance of the evidence, that the minor is
216     being abused or is in imminent danger of being abused, the court shall enter a child protective
217     order. With the exception of the provisions of Section 78A-6-323, a child protective order
218     does not constitute an adjudication of abuse, neglect, or dependency under Title 78A, Chapter
219     6, Part 3, Abuse, Neglect, and Dependency Proceedings.
220          (6) If the court determines that the petitioner knowingly falsified a material statement
221     or material information, as described in Subsection 78B-7-204.5(1), the court shall enter a child
222     protective order based on clear and convincing evidence that the minor is being abused or is in
223     imminent danger of being abused.
224          Section 6. Section 78B-7-204.5 is enacted to read:
225          78B-7-204.5. Falsification of information.
226          (1) A party may file a petition to allege that the other party knowingly falsified a
227     material statement or material information:
228          (a) for the purpose of obtaining a protective order on behalf of a child; or
229          (b) in a child protective order proceeding.
230          (2) If the court determines that a party knowingly falsified a material statement or
231     material information, as described in Subsection (1), the court shall enter sanctions against the
232     party in accordance with Subsection 78B-7-115(3)(c).
233          (3) If the parties to the child protective order proceeding are the child's parents, and the
234     court determines that a party knowingly falsified a material statement or material information,
235     as described in Subsection (1), the court may order counseling for the parties' child, if
236     appropriate for the child's age, with a mental health therapist, as defined in Section 58-60-102,
237     chosen by the party who filed the petition under Subsection (1), up to 20 sessions, at the
238     discretion of the mental health therapist.
239          (4) If a parent has lost parent-time as a result of the other parent's falsification of a
240     material statement or material information, as described in Subsection (1), the court shall order
241     the parent to allow the other parent additional parent-time with the child to make up for any
242     parent-time the parent lost as a result of the falsification.

243          (5) The court shall retain jurisdiction to hear a petition described in Subsection (1) if
244     the petition was filed within 45 days after a child protective order expires or is dismissed or
245     vacated.
246          Ŝ→ [
(6) The court shall, if the party who filed the petition described in Subsection (1)
247     agrees, refer any evidence of falsification to the district attorney or county attorney for
248     screening of criminal charges.
] ←Ŝ

249          Section 7. Section 78B-7-207 is amended to read:
250          78B-7-207. Forms and assistance -- No fees.
251          (1) The Administrative Office of the Courts shall adopt and make available uniform
252     forms for petitions and orders conforming to this part. The forms shall notify the petitioner
253     that:
254          (a) a knowing falsehood in any material statement under oath may subject the
255     petitioner to felony prosecution;
256          (b) the petitioner may provide a copy of the order to the principal of the minor's school;
257     and
258          (c) the petitioner may enforce a court order through the court if the respondent violates
259     or fails to comply with a provision of the order.
260          (2) If the petitioner is not represented, the clerk of the court shall provide, directly or
261     through an agent:
262          (a) the forms adopted pursuant to Subsection (1);
263          (b) clerical assistance in completing the forms and filing the petition;
264          (c) information regarding means for service of process;
265          (d) a list of organizations with telephone numbers that may represent the petitioner;
266     and
267          (e) information regarding the procedure for transporting a jailed or imprisoned
268     respondent to hearings, including transportation order forms when necessary.
269          (3) No fee may be imposed by a court, constable, or law enforcement agency for:
270          (a) filing a petition under this chapter;
271          (b) obtaining copies necessary for service or delivery to law enforcement officials; or
272          (c) service of a petition, ex parte child protective order, or child protective order.