A restraining order is something that many people have heard talked about in TV shows or movies, but what about in real life? In many cases, what a person requests from the court is not a restraining order; instead, it is a protective order.
If someone requests that the court place a restraining order in Utah, what happens next? How is a Utah protective order different from a restraining order?
In this article, we’ll explore all of the details about how to get a restraining order in Utah.
What Is a Restraining Order in Utah?
A restraining order in Utah is often referred to as a temporary restraining order or TRO. However, it is an emergency order issued by the court that goes into effect immediately. For individuals to request a restraining order, they must already have an active case on file with the court, usually known as an underlying case.
Wondering how to get a restraining order in Utah? First, it’s essential to note restraining order requests should only be filed in dangerous circumstances. The court defines these situations as ones in which irreparable harm could be done if an order was not filed.
To get a restraining order in Utah, a person must file certain forms with the court, which become a part of their underlying case.
If the court determines that issuing a restraining order is the best course of action, the judge will approve it immediately. The court may or may not inform the other party about the decision, depending on the circumstances.
A restraining order may not be the best choice in deciding court cases where divorce or child custody is involved. Instead, a child protective order or motion to enforce a domestic order may be more appropriate.
It’s also possible to contact law enforcement or the Utah Division of Child and Family Services for more immediate assistance.
When Are Restraining Orders in Utah Issued?
The court can issue a restraining order in Utah within many cases, not just domestic violence cases. For example, a temporary restraining order (TRO) can be issued by the court to:
- Stop a person from destroying or selling someone else’s property
- Force a landlord to allow a tenant back into their rental property
- Award temporary custody of a child to a responsible adult
- Immediately return a child to the custody of another party
In a court case involving a restraining order to return a child to the custody of another party, a Writ of Assistance may also be issued. A Writ of Assistance means that, if needed, law enforcement is authorized to take physical custody of the child so that they can safely and swiftly return the child to the appropriate party.
As you can see from the list above, restraining orders occur in very time-sensitive cases that require quick action on the part of the court. That is why restraining orders are not generally the prescribed course of action. Instead, in most cases, a protective order is more fitting.
What Do Judges Require for a Restraining Order in Utah?
For a court to issue a restraining order, the party requesting the order must prove or provide certain information to the judge. First, a handful of forms must be completed, including:
- Application for Temporary Restraining Order
- Order on Application for Temporary Restraining Order
- Writ of Assistance to Remove Children (if applicable)
The judge will likely require the person filing the order to provide a sort of security deposit in the form of a cash deposit or bond to the court. This monetary fund covers any expenses that come up, such as lawyer fees or damages the other party may have to pay to show that the restraining order was unnecessary.
Other evidence that a judge may request may be testimony from the person requesting the order. This testimony needs to explain what irreparable harm would come to the person filing the order if the restraining order is not issued. It should also speak to things that would make the harm irreparable.
In most cases, irreparable harm involves violence against another person or damage to their property. However, implied violence does not guarantee approval for the restraining order.
The judge will also need to confirm that the restraining order does not go against the public interest. They will also have to determine whether the underlying court case will likely rule in favor of the person requesting the order.
How to Get a Restraining Order in Utah
When you want to know how to get a restraining order in Utah, you must first understand that a petitioner must already have an underlying court case active in the judicial system to move forward. So, for example, if someone feels they are in danger or threatened with violence but do not have a pending court case involving the other party, a restraining order is not a legal path forward.
When the person does have an underlying court case against the other individual, they can file the forms mentioned above and submit them to the court. The petitioner for the restraining order would also have to notify the other party that they are applying for the restraining order by sending them a filing copy.
If the petitioner does not complete this step, they must prove to the court that either:
- They made an effort to notify the other party but were unsuccessful
- There would be immediate harm or violence against them if they did
At this point, the judge would determine the petitioner’s request for the restraining order. This decision will happen on the same day that the petitioner files the documents.
If the temporary restraining order is approved, it is valid for no more than 14 days, and the court will schedule a hearing as quickly as possible. The petitioner will also have to immediately deposit the money or post the bond to the court for potential fees.
Once the petitioner and court complete all of the above steps, the restraining order papers will be served to the other party by a court official or a private investigator.
Also, if there is a writ of assistance regarding children involved, the court will ensure it is carried out promptly by law enforcement.
How to Challenge a Restraining Order in Utah
If someone is trying to issue a restraining order against you or the other party in your court case has notified you that a restraining order is in place, you can challenge the ruling if you believe the allegations are unfounded.
If the court has not yet issued the restraining order, you can file a Memorandum Opposing Motion to try to oppose it. You would need to deliver a copy of the motion to the other party, as well.
Another option is to request a telephone conference with the court that is currently handling your case, which allows you to explain your side of the situation before a judge decides.
If the restraining order has already been issued by the court, you should expect a hearing to be scheduled within 14 days of the date of issue. Therefore, it’s in your best interest to read the restraining order paperwork entirely and carefully.
You can also file a motion to request your hearing to take place if you want to change or terminate the restraining order before the scheduled hearing takes place. If you decide to go this route, you must give 48 hours’ notice to the restraining order’s petitioner and attempt to send them a copy of the motion, as well.
What is a Utah Protective Order?
In the court system, what Hollywood likes to refer to as a restraining order would legally be called a protective order in most cases.
A Utah protective order is a court order that protects a person from domestic violence or stalking cases. Like restraining orders, Utah protective orders can apply to various situations. For example, there can be Utah protective orders for:
- Cohabitants: Individuals who live or have lived together. It also applies to those who have children together
- Dating Relationships: Individuals in a romantic social relationship now or in the past
- Sexual Assault: Individuals affected by sexual violence
- Stalking: Following, photographing, surveilling, or threatening another person two or more times
The petitioner requests the court to issue the protective order while the other party is the respondent.
If the respondent committed violence or threatened to commit violence against the petitioner, the protective order from the court can place limitations on the respondent, including ordering the respondent to:
- Not commit any acts of violence against the petitioner
- Stay away from the petitioner’s home, work, school, etc.
- Not communicate in any way with the petitioner
- Not obtain, hold, or purchase a firearm or other weapon type
- Comply with the restrictions at the respondent’s work, school, etc.
Failure to follow the protective order can cause the respondent to be arrested and charged with a crime.
When Are Protective Orders in Utah Issued?
Simply having a connection or relationship between the petitioner and the respondent is not enough for the petitioner to request a protective order.
To request a Utah protective order, the petitioner must also show that they face violence or abuse from the respondent. Types of abuse or violence could include, but not be limited to:
- Physical Harm: Pushing, kicking, hitting, hair pulling, using a weapon, etc.
- Domestic Violence: Violence within the home
- Dating Violence: Violence within a relationship
- Sexual Violence: Rape, sodomy, aggravated assault, exploitation or extortion, etc.
- Threats of Violence: Throwing or breaking objects to incite violence
If any of the above types of abuse or violence involve children under the age of 18, a specific type of protective order referred to as a child protective order would need to be requested.
What Do Judges Require for a Protective Order in Utah?
To request a Utah protective order with the court, the petitioner must file a handful of forms and submit them to the judge. These documents include:
- Request for a Protective Order
- Temporary Protective Order
- Protective Order
- Service Assistance Form
These forms can be submitted by mail, email, or in person. They do not incur any court fees or filing costs.
Once an individual has submitted the above forms, a judge will review them, usually that same day. The judge then has to decide whether they will grant the request or deny the request.
When the request is granted, a protective order request becomes valid until the court hearing date, which should occur within 20 days.
The court will serve a copy of the protective order to the respondent. If they are not in Utah, the court will contact the respondent’s state to serve the protective order. Technically, the protective order will not go into effect until the court has served it to the respondent.
After reviewing the request, if the judge determines to deny it, the petitioner has five days to request a hearing to present more evidence to prove to the court the protective order should be issued. The court would then serve the respondent with the petition and hearing date, but a protective order would not be in place.
Hearing for a Protective Order in Utah
Whether a judge accepts a request for a protective order or denies it, a hearing will occur. If the judge grants the protective order request, this hearing will happen within 21 days. This hearing is for the judge who issued the protective order to determine whether the protective order should remain in place.
If the request is denied, the hearing acts as a way for both parties to present evidence for their side.
In either situation, the hearing will ultimately determine whether the court will issue a three-year protective order or not. If the petitioner or respondent fails to attend the hearing or fails to have evidence or witnesses to provide, they will not get another opportunity.
If the respondent does not attend the hearing and the petitioner presents a good cause, the court will likely grant the protective order. However, if the petitioner does not attend and fails to show good cause, the court will dismiss the protective order.
Once both parties have presented all evidence and witness testimony, the judge — or in some Utah districts, the commissioner — will make a ruling to either dismiss the temporary protective order or issue the final protective order. Usually, this order stands for a minimum of three years.
Final Protective Order in Utah
Once issued, a final protective order in Utah contains two parts: Criminal and civil. The criminal part of the protective order refers to the restrictions ordered upon the respondent mentioned earlier. The criminal aspects of the protective order will generally remain in place for at least three years, but depending on the date of issue, it could be as little as 180 days or not expire at all.
The civil part of the protective order references orders such as financial support, child custody, and gathering personal belongings. If the respondent needs to retrieve belongings from the petitioner’s home, they can contact the police for assistance or file a motion with the court for a temporary change to the protective order. Civil aspects of a protective order in Utah can last for 150 days or longer. These aspects can even be indefinite.
Both parties must read the protective order entirely and carefully to ensure that all information and dates are clearly understood.
For protective orders with set timeframes, a petitioner can request to extend the final protective order. However, they must do this before the protective order expires, and they must serve the respondent with copies of any requests filed with the court.
The court will then set a hearing date to determine whether the extension request is valid and whether necessary conditions are met. If the court determines the extension is not warranted, the protective order will expire as initially determined by the court ruling.
If the respondent fails to follow any part of the protective order, they can face arrest and jail time. In addition, the first time a violation occurs, the respondent can be charged with a class A misdemeanor. This charge comes with a fine and up to one year in jail.
If the respondent violates the protective order again, a new felony charge can incur five years in prison.
How to Challenge a Protective Order in Utah
The petitioner or the respondent can request to challenge the court’s decision in a protective order case. Challenging a protective order in Utah is first determined by whether a judge or a commissioner decided the case initially. If a judge made the ruling, challenges must be filed as an appeal with the Utah Court of Appeals.
If a commissioner ruled on the protective order case, either party has 14 days to challenge the ruling, at which point it is given to a judge for determination. A judge would rule on the case within 20 days.
Once a ruling from the judge has been given, either party can challenge it using the same appeals process outlined above.
Differences Between Restraining Orders and Protective Orders in Utah
While they may seem very similar, there are some significant differences between a restraining order in Utah and a protective order in Utah.
With a protective order, there is almost always violence or the threat of violence involved in requesting protection.
In a restraining order case, violence is often part of the definition of irreparable harm, but it doesn’t have to be. For example, a restraining order can be filed against a landlord to return to their rental property, even if there are no concerns over violence. However, even a protective order for stalking implies the threat of violence.
For individuals to file paperwork for a restraining order, they must already have a pending court case against the person they intend to file a restraining order. If the two concerned parties do not have an underlying court case, the only way forward for a petitioner is to request a protective order.
Timeframe and Cost
Restraining orders are temporary, lasting about 14 days or until the court hearing takes place. At that time, the restraining order would expire, and the petitioner would then need to go through the protective order request process if they felt the need to continue receiving enforced protection.
Protective orders are initially temporary but can become more long-term or indefinite.
It’s also worth noting that a restraining order will incur a possible financial commitment on behalf of the petitioner, while a protective order does not require any upfront fees. However, this difference should not affect an individual’s decision to file a restraining order or protective order.
Restraining orders and protective orders in Utah are legal methods to ensure a person’s safety against violence or threats from another party. Both kinds of court requests should be taken very seriously and only used when truly necessary.
When you want to know how to get a restraining order in Utah, understand that this is a different question from how to get a protective order in Utah. The sort of legal assistance you should seek depends on which kind of filing you want to do.
Understanding restraining orders and protective orders can be complicated. Legal matters can quickly become very complex and overwhelming. It can also be hard to navigate the court system when your case involves high emotions or people you love.
Call Schatz Anderson today if you’ve been given a restraining order or protective order and would like to know how representation can help. Unfortunately, the longer you wait to get legal assistance, the more difficult it will be to defend your case in court.
We have over 50 years of combined experience as criminal lawyers in Utah. We fight hard to keep our clients out of jail so that they can avoid convictions on their records.