How Do I Get a Protection from Abuse Order?
If you are the victim of abuse or domestic violence you may obtain what is called a “Protective Order” from a Utah court. As its name suggests, a Protective Order is a court order requiring someone to stay away from you, not to harm you, not to possess any weapons, not have any contact with you or your children (except on terms the Court has authorized), stay away from where you work or go to school, and may contain other orders to protect you. Such orders are often issued and heard on an expedited basis.
If you are immediate danger as you are reading this please dial 9-1-1 immediately.
To qualify for a Protective Order you must show two things: (1) that you are a “Cohabitant” of the other side and (2) that you have been subjected to “abuse” or “domestic violence” or that there is a substantial likelihood you will be without the order.
A “Cohabitant” is broadly defined as a person 16 years of age or older who is or was your spouse, is or was living with you in a marriage-like relationship, is related to you by blood or marriage, has a child with you, is the biological parent of the other side’s unborn child, or resides or has resided in the same residence as you. (But “Cohabitant” does not include parents or step-parents or siblings if a child is seeking the Protective Order).
“Abuse” means intentionally or knowingly causing or attempting to cause someone physical harm or placing someone is reasonable fear of imminent physical harm. In other words, any act or threat of physical violence towards someone is considered abuse. This may include things such as hitting, kicking, pushing, pulling hair, using or threatening to use a weapon against you, etc.
“Domestic Violence” is defined broadly as committing (or attempting to commit) crimes such as: (a) aggravated assault, (b) assault, (c) criminal homicide, (d) harassment, (e) electronic communication harassment, (f) kidnapping, child kidnapping (but not custodial interference), or aggravated kidnapping, (g) mayhem, (h) certain sexual offenses, including sexual exploitation of a minor, (i) stalking, (j) unlawful detention, (k) violation of a protective order, (i) any offense against property including burglary, trespass, robbery, criminal mischief, etc., (m) possession of a deadly weapon with intent to assault, (n) illegally discharging a firearm, (o) disorderly conduct if the conviction stems from a plea deal in which the person was originally charged with any domestic violence offense, and (p) child abuse. This is a very broad definition and is not limited to physical violence. Things such as restricting someone’s ability to leave the house, preventing them from calling the police, e-mail and telephone harassment, breaking things to intimidate, stalking, etc. may all qualify as acts of “domestic violence.”
Note that “abuse” and “domestic violence” do not encompass what is commonly called “emotional abuse.” That means if you are having heated verbal arguments with your partner and mean things get said but they do not escalate to violence, threats of violence, or anything else that fits the legal definition of “domestic violence” you will likely not qualify for a Protective Order. For example, if your spouse comes home, accuses you of cheating, and says you are a horrible person and he is going to take everything away from you in court that statement, while perhaps hurtful and scary, is not abuse or domestic violence. But if your spouse comes home and starts throwing things at you and says you are never leaving the house alive that would be a different story.
To obtain a Protective Order you must fill out several forms with the Court explaining your side of the story and what you want the Judge to do to keep you safe. You can obtain copies of these forms at the Courthouse, from the Court’s website, or from our office. If your Request for a Protective Order convinces the judge that you are in immediate danger the Judge may sign a “Temporary Protective Order” that goes into effect immediately and lasts until the court hearing on your Request for a Protective Order. The Judge will then schedule a hearing where the other side will have an opportunity to tell the Judge their side of the story and give everyone a chance to argue why that Protective Order should or should not become permanent. Normally this hearing will take place about 20 days after the Request is filed but can be extended for good reasons.
Regardless of whether you are the one requesting or defending against a Protective Order it is important to come to Court prepared with all the evidence you can to support your request. This includes things such as witness statements, police reports, medical records, child protective service reports, photographs, e-mails, text messages, and anything else you have to corroborate your story. A lot of Protective Order cases boil down to “he said / she said” spitting matches. Judges are eager to receive any evidence that breaks that stalemate and convinces them one side’s story is more believable than the other.
Depending on where you live your initial court hearing may either be conducted on the basis of “proffers” or be an “evidentiary hearing.” Most Commissioners in Salt Lake, Utah, Tooele, Summit, and Davis County conduct initial hearings on a proffer basis which means they review witness statements and other evidence filed with the court in advance and give each side about 15 minutes to orally argue why a Protective Order should or should not enter. There is no opportunity to question the other side at these hearings. The benefit of this process is the Court hears cases and make rulings quicker than if they conducted a trial in every case. This is great assuming the Court rules in your favor without having to incur the monumental expense of a trial. But those who do not prevail often feel cheated out of a fair trial. However, all is not lost if that happens to you. If the Protective Order hearing is conducted by a Commissioner then the losing party has the right to file an objection within 10 days of the hearing and request an “evidentiary hearing” before the Judge which will be scheduled on an expedited basis. An evidentiary hearing is conducted the same as a trial with each side having a chance to question the other side under oath, call witnesses, and testify in their own behalf. (If your case is assigned to a Judge rather than a Commissioner or is being heard in Weber or Cache County you should expect your initial protective order hearing to be an evidentiary hearing).
Protective Orders are serious business. If a person violates one they can be arrested and sent to jail. They also carry serious ramifications in divorce and custody cases because the Judge may enter temporary child custody, parent-time, property, and child support / alimony orders in the process of entering a Protective Order. Regrettably some people abuse the expedited, one-sided nature of the Protective Order process to obtain favorable temporary orders without giving the other side a chance to be heard until a later court date. But many times these orders are a valid part of the process to make sure victims of domestic violence have a place to stay at, do not have to worry about their children being harmed or kidnapped, and have the financial support they need to survive until there can be a more detailed court hearing.
Because Protective Order cases are considered civil cases the Judge does not have to find the allegations being made are true “beyond a reasonable doubt” as would be the case in a criminal proceeding. The Judge can and will enter a Protective Order if convinced it is “more likely than not” there has been abuse or domestic violence. Thus it is not unusual for someone to escape criminal charges for allegedly abusive conduct but end up with a protective order because a different standard of proof applies.
Regardless of whether you are seeking a Protective Order or defending against one it is important to go into family court armed with all the evidence you can and with a smart, experienced, and aggressive lawyer at your side to make sure you get the best outcome possible. Are you looking for help with a Protective Order case or do you have questions? Give the attorneys at Wiser and Wiser Family Law a call today at 855-254-2600.
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