Explanation of Protective Orders

Date: XX.XX.XXXX

Regarding: Explanation of Protective Orders

Dear XXXX,

This is a form letter explaining the Protective Order process. Since this is a form letter, it is a general explanation and not specific to your case. If you would like greater explanation regarding Protective Orders, please, feel free to call us and ask any questions you may have. We will be happy to speak with you.

A Protective Order can have serious adverse consequences. For example, while a Protective Order is in place, you cannot use or possess guns or ammunition. Protective Orders might as make is difficult to find a job. Protective Orders are not criminal, so they cannot be expunged.

Protective Orders are designed to keep people away from each other because one person has harmed another, or someone has a legitimate fear of being harmed. The following are some of the things that can be accomplished through a Protective Order ("Petitioner" is the person requesting a Protective Order, and "Respondent" is the person against whom a Protective Order is requested):

  • Order the Respondent not to harm the Petitioner, the Petitioners children or anyone who lives with the Petitioner.
  • Order the Respondent to stay away from the Petitioner and the Petitioners home, job, vehicle or school, and not to contact or harass the Petitioner in any way.
  • Order the Respondent not to have any guns or other weapons.
  • Order temporary possession of the home, car and essential personal property.
  • Order temporary custody, parent-time and support for the children.
  • Order temporary spousal support if the Petitioner and Respondent are married.
  • Order the children not to be removed from Utah.

The following is a quick explanation of who can procure a Protective Order and why:

  • The Respondent has harmed the Petitioner, and
  • The Petitioner and Respondent are related, live with or used to live with each other, are parents of a child together, or if the Petitioner is pregnant by the Respondent, and
  • The Petitioner and Respondent are at least 16, married or emancipated.

or

  • The Petitioner is afraid the Respondent will harm her or him, and
  • The Petitioner and Respondent are related, live with or used to live with each other, are parents of a child together, or if the Petitioner is pregnant by the Respondent, and
  • The Petitioner and Respondent are at least 16, married or emancipated.

Harm may include:

  • Hitting, kicking, pushing, pulling hair, using a weapon, or other types of physical attacks.
  • Stalking, harassing, kidnapping, sexual assault.
  • Restricting movement, or stopping someone from calling for help.
  • Breaking things or throwing things to intimidate.
  • Trying or threatening to do any of these things.

You obtain a Protective Order by filing a Request for Protective Order. In this Request, you must tell the Court what you want (e.g., that the other person stay away from your home) and why you think a Protective Order is necessary. The explanation must lay out specific facts and incidents that prove you have been harmed or have legitimate fear of being harmed.

If a judge finds sufficient evidence, he or she will grants what is called an Ex-Parte Protective Order. Ex-Parte means without a hearing, and this is sort of Protective Order only lasts until the Court can have a hearing on your Request. These hearings take place within about two weeks of receiving an Ex-Parte Protective Order. An Ex-Parte Protective Order is usually quite easy to obtain, so if one has been entered against you, do not worry.

Before a hearing, the Respondent will have the opportunity to respond to the allegations made. This is done in writing, and Sworn Declarations (i.e., Affidavits) and other evidence (e.g., photos, medical reports) is often provided to the Court. Because Protective Order hearings happen so quickly, it is imperative that a Respondent gather evidence and witnesses as quickly as possible.

A hearing regarding a Protective Order is usually held before a Commissioner. A Commissioner is not quite a judge, but acts as a judge in Protective Order and family law cases. Usually, in a hearing regarding Protective Orders, live testimony will not be taken. Instead, the attorneys will proffer evidence, which means the attorneys will stand up and argue. If live testimony is required, we will let you know so we can ensure witnesses attend.

If, at the end of the hearing, the Commissioner or Judge does not believe there is sufficient evidence for a Protective Order, the case will be dismissed. On the other hand, if the Commissioner or Judge believes there is sufficient evidence, then a permanent Protective Order will enter. This Protective Order will be permanent, although the Respondent can request it be dismissed after two years. Portions of a Protective Order regarding child custody and child support will only last about 180 days.

Many times, if a Protective Order is entered at the beginning of a divorce, the parties will agree to dismiss the Protective Order and enter what are called Mutual Restraining Orders against each other in the divorce case. These Mutual Restraining Orders cover many (if not all) the same topics as the Protective Order.

No matter what the Commissioner does (e.g., enters a permanent Protective Order, or refuses to do so) each party has the opportunity to object to the Commissioner's Findings and Recommendations and request an evidentiary hearing in front of a judge. This must be done within fourteen days of the Commissioner's decision. If you wish to object, please let us know as soon as possible since it takes time to draft an objection to a Commissioner's Recommendations.

Hopefully, this letter has helped explain the Protective Order process. Again, if you have any questions regarding your case, please call 801.685.9999.

Sincerely,
/s/ Marco Brown