Protective Orders are one aspect of family law that does not follow typical family procedures, and unfortunately can be abused relatively easily. Most areas of family law have rules in place that ensure that one party cannot manipulate and abuse the system. For good reason courts are generally hesitant to make rulings or issue orders without both parties getting their two cents in.
By nature protective orders are one sided, at least to begin with. In order to get a temporary protective order all a party has to do is convince a judge that he or she is in harms way. The party seeking protection (Petitioner) does not need to involve the “offending” party (Respondent) at this initial stage. As long as the Petitioner is convincing, a judge will almost always sign a temporary protective order, which can include language prohibiting the Respondent from being near the Petitioner or even places where the Petitioner might be, such as his/her work, school, or home.
By nature protective orders are one sided, at least to begin with. In order to get a temporary protective order all a party has to do is convince a judge that he or she is in harms way. The party seeking protection (Petitioner) does not need to involve the “offending” party (Respondent) at this initial stage. As long as the Petitioner is convincing, a judge will almost always sign a temporary protective order, which can include language prohibiting the Respondent from being near the Petitioner or even places where the Petitioner might be, such as his/her work, school, or home.
What does a protective order do?
Protection Often times a temporary protective order will prohibit the Respondent from even being near his/her children. Such language is common and the order is typically issued without the Respondent having an opportunity to tell his/her side of the story. This is why it is easy to abuse protective orders. Conceivably a Petitioner could lie through his/her teeth and unjustly get the court to prohibit the Respondent from even seeing his/her kids.
So why have protective orders?
There is definitely a need for protective orders, if the Petitioner is truly in harm’s way then a protective order could be essential to protecting that person. A court needs to weigh the Petitioner’s potential risk with the Respondent's rights to “life, liberty, and the pursuit of happiness.” For fairly obvious reasons a court will usually err on the side of granting the order, despite the inherent risk that the Respondent is being falsely accused.
In Utah, after the protective order is issued, the court will set the matter for a hearing within two weeks. That hearing is the Respondent’s first opportunity to tell his/her side of the story. At that hearing, the Petitioner has the burden to prove that there was just cause for issuance of the protective order. If the court finds just cause, then the protective order becomes permanent. If the Respondent does not meet his/her burden of proof then the protective order is set aside.
In Utah, after the protective order is issued, the court will set the matter for a hearing within two weeks. That hearing is the Respondent’s first opportunity to tell his/her side of the story. At that hearing, the Petitioner has the burden to prove that there was just cause for issuance of the protective order. If the court finds just cause, then the protective order becomes permanent. If the Respondent does not meet his/her burden of proof then the protective order is set aside.
Violation of a protective order
Violate the Protective Order? Utah law takes protective orders very seriously. If the Respondent violates the temporary protective order or a permanent protective order, Utah law states that he/she MUST be arrested. Regardless of whether the Petitioner initiated contact or if it was a technical violation with no real repercussions. I’ve seen multiple situations where the protective order states that there is to be no communication between the parties, nevertheless the Petitioner initiates communication, and the Respondent not only gets in trouble, but actually goes to jail.
I also had a client once that had a temporary protective order issued against him, he was allowed to see his kids but was not allowed to be near his wife or his wife’s vehicle. He met his daughter for lunch and his daughter drove the wife’s car to the restaurant. The wife reported this and the husband was arrested and jailed. The most difficult aspect of that case was the protective order was temporary and ultimately the allegations set forth by the Petitioner were deemed unfounded by the court. Nevertheless the Respondent now has a criminal record for violation of a protective order.
I also had a client once that had a temporary protective order issued against him, he was allowed to see his kids but was not allowed to be near his wife or his wife’s vehicle. He met his daughter for lunch and his daughter drove the wife’s car to the restaurant. The wife reported this and the husband was arrested and jailed. The most difficult aspect of that case was the protective order was temporary and ultimately the allegations set forth by the Petitioner were deemed unfounded by the court. Nevertheless the Respondent now has a criminal record for violation of a protective order.
What can be done?
There is a definite need for protective orders, but Utah courts and legislature has struggled to find out a way to keep them from being abused, and so the abuse continues. While I understand the dilemma, I do believe one way to reduce the abuse is to prosecute a Petitioner that clearly lied in order to get a temporary protective order issued. I have been involved in protective order hearings wherein it becomes very clear that there is and was no basis for the protective order. Nevertheless I have NEVER seen a Petitioner that obviously lied held accountable for his/her actions.
The court’s refusal to penalize this type of behavior only encourages people to abuse the system. After all, there is nothing to lose. At best (for the Petitioner) the Petitioner gets a permanent order issued, at worst the Respondent loses parent-time and freedom for a couple weeks, and maybe gets a criminal record. Until courts take an aggressive approach against people that are abusing and manipulating the system, the abuse will continue.
Your attorney at Pearson Law Firm has the experience to deal with protective orders, both on the Petitioner’s side and the Respondent’s side. Plus, if there is a protective order that was issued based on false allegations, your attorney will do everything he can to encourage the court penalize the Petitioenr in some way. Call Pearson Law Firm for a free consultation with a Utah divorce attorney that has the experience with protective orders to aggressively represent you. Call today! 801-888-0991
The court’s refusal to penalize this type of behavior only encourages people to abuse the system. After all, there is nothing to lose. At best (for the Petitioner) the Petitioner gets a permanent order issued, at worst the Respondent loses parent-time and freedom for a couple weeks, and maybe gets a criminal record. Until courts take an aggressive approach against people that are abusing and manipulating the system, the abuse will continue.
Your attorney at Pearson Law Firm has the experience to deal with protective orders, both on the Petitioner’s side and the Respondent’s side. Plus, if there is a protective order that was issued based on false allegations, your attorney will do everything he can to encourage the court penalize the Petitioenr in some way. Call Pearson Law Firm for a free consultation with a Utah divorce attorney that has the experience with protective orders to aggressively represent you. Call today! 801-888-0991
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