If you think that men are the only victims of Utah-protective-order abuse cases, think again. Any attorney that deals in this area of the law will tell you that more and more abusive men, who know their wives or girlfriends may get a legitimate protective order against then, will run to the court to turn tables. Sadly, many false accusers know from word on the street that getting a protective order is often a race to the courthouse, and is fairly easy to win. And since “mutual protective orders” are not favored, the true victim was really end up really suffering. (See Utah Code 78B-7-108.)
You have heard of welfare fraud, and protective-order fraud is also rife in this nation. Judges spot a lot of it, and throw out some cases, but so much more needs to be done to fix things. Ever since the OJ Simpson trial, judges are very afraid that if they don’t sign off on an order, and a person then gets killed by the “accused”, that judge’s reputation will be destroyed by the media.
Recently, a client said this to me: “The law regarding protective orders in Utah really needs to change. All it takes for a person to get one is to waltz into a courtroom with hastily put-together paperwork that’s filled with false allegations, and the judge will blindly sign off on the accuser’s pack of lies. Then the accused has to show up and prove they are innocent. This is unAmerican and just plain wrong!”
Sadly, I was hard pressed to disagree with him, and my honest feeling is that there are many people in the legal system, including judges, who feel the system needs to be fixed when it comes to protective orders in Utah. Over the nearly twenty years that I have been practicing law, I have seen many false accusers abuse people who didn’t so much as lift a finger against them, and I am not alone.
Often the Utah protective order is a tool for a false accuser to get temporary custody of the kids or the house – and saves them the time and expense from having to hire a lawyer, file for divorce, and get a “temporary order”, which could take months and cost thousands of dollars. Once entered, the false accuser has a huge leg up on the humiliated accused person, who has now been branded an abuser by the court. Not only does this give the false accuser a legal edge, but a financial and psychological edge, too. Often times, the falsely accused is defeated, and just becomes sheepish. He or she does not want to take any more legal kicks in the gut. Fighting the state is a HUGE undertaking, and few people feel up to the challenge.
So, in a way, the system arguably encourages a dishonest person to seek a protective order, even if it is totally bogus. I once heard an attorney asking his client at court if she could “think of any time” she may have been abused, which may still be causing her fear. In other words, some people use the process fairly, others just see it as a game – a game of immense control. A game that puts judges, prosecutors, and cops on their side. Violation of a protective order is serious business – up to a year in jail (Utah Code 78B-7-114), and a nasty criminal record that will make most employers shudder when they see it.
In Utah, protective orders against adults can last until further order of the Court. Now, if the accuser later wants it dropped, they can ask the judge to drop it, but if the accused wants it dropped after it has been granted, they will have to wait two years for the judge to review it. There is some good news: the non-protective parts of Utah protective orders, such as child visitation, spousal support, custody, property allocation, etc.) may only last for 150 days.
Here is what the code says: 78B-7-115. Dismissal of protective order.
(1) A protective order that has been in effect for at least two years may be dismissed if the court determines that the petitioner no longer has a reasonable fear of future abuse. In determining whether the petitioner no longer has a reasonable fear of future abuse, the court shall consider the following factors:
(a) whether the respondent has complied with treatment recommendations related to domestic violence, entered at the time the protective order was entered;
(b) whether the protective order was violated during the time it was in force;
(c) claims of harassment, abuse, or violence by either party during the time the protective order was in force;
(d) counseling or therapy undertaken by either party;
(e) impact on the well-being of any minor children of the parties, if relevant; and
(f) any other factors the court considers relevant to the case before it.
(2) The court may amend or dismiss a protective order issued in accordance with this part that has been in effect for at least one year if it finds that:
(a) the basis for the issuance of the protective order no longer exists;
(b) the petitioner has repeatedly acted in contravention of the protective order provisions to intentionally or knowingly induce the respondent to violate the protective order;
(c) the petitioner’s actions demonstrate that the petitioner no longer has a reasonable fear of the respondent; and
(d) the respondent has not been convicted of a protective order violation or any crime of violence subsequent to the issuance of the protective order, and there are no unresolved charges involving violent conduct still on file with the court.
(3) The court shall enter sanctions against either party if the court determines that either party acted:
(a) in bad faith; or
(b) with intent to harass or intimidate either party.
(4) Notice of a motion to dismiss a protective order shall be made by personal service on the petitioner in a protective order action as provided in Rules 4 and 5, Utah Rules of Civil Procedure.
(5) If a divorce proceeding is pending between the parties to a protective order, the protective order shall be dismissed when the court issues a decree of divorce for the parties if:
(a) the petitioner in the protective order action is present or has been given notice in both the divorce and protective order action of the hearing; and
(b) the court specifically finds that the order need not continue.
(6) When the court dismisses a protective order, the court shall immediately issue an order of dismissal to be filed in the protective order action and transmit a copy of the order of dismissal to the statewide domestic violence network as described in Section 78B-7-113.
Why are Utah protective orders so easy to file? Well, one only need be 16 years-old (which means a child can actually file against a parent), be emancipated, be a “victim” of domestic violence, which can include the very vague definition of “stalking” (which typically requires more than just one incident), have lived in the same residence (so roommates beware!), be related merely by blood or marriage, have a child (born or unborn) with the accused. And any “interested” party can get a protective order for a minor has been abused or who is in immediate danger of abuse, and “abuse” can be just about anything that somebody finds objectionable – like yelling, or cussing at a kid.
In Utah, domestic violence includes abuse, and if charged with a crime, it is usually assault “domestic violence” related. Utah is very aggressive in pursuing these charges. You can be charged with that for physically harming, or showing an immediately display of force, like holding your fist in the air. Abuse also includes putting someone in fear of physical harm. Keep in the mind that this can also include electronic harassment via email and texting. Phone harrassment is also a big one.
A judge has to determine whether to grant a “temporary order”. This is called an “ex-parte order” because the accused is not present when this happens, and often has no idea it is even going on. So, he or she is not there to tell the judge his or her version of the facts. The accused may find out about all this only after he or she has been “served” with a copy of the order by a sheriff or the constable. The accused gets the papers, and may be told to leave his or her home immediately, and to stay away from their kids. A court date to contest the matter will be on the paperwork (set for within 20 days).
It is a good idea to ONLY deal with a potentially false accuser via email, so you have a paper trail of all your communications. Confirming things they say and do via email also makes a lot of sense.
Also, Under Utah law, a person MUST report child abuse to the Division of Child and Family Services (DCFS) even if they merely suspect it is taking place. A guardian ad litem (a lawyer for the child) may then be appointed to represent your child against you.
In Utah, the court clerks will even assist people in filling out the paperwork to get a protective order. On other matters, they typically will tell them to go speak to an attorney, so getting the paperwork filled out is pretty easy. And in Salt Lake County, the Legal Aid Society of Salt Lake will help a person fill out all the paperwork at the courthouse. Of course, the accused will have to show up by himself to defend against it – even if he is poor. He will not get appointed a lawyer because it is technically not criminal. If you feel that that the Founding Fathers are rolling over in the graves because of this, you are not alone.
Additionally, the state is filled with “victim advocates”. Funny how they are called then BEFORE any judge or jury has found them to be an actual victim. Until they are deemed to be a victim, they are an accuser, but the courts do not call them that. Some judges are thoughtful and will call them the Petitioner (the one that filed the petition), but some judges, sadly, simply refer to them as the “victim”, which arguably creates an unfair mindset against the accused, who is supposed to be presumed innocent.
All a person needs to get a protective order in Utah is to allege ONE incident of abuse. And, not only will Utah enforce it statewide, other states may enforce it, too.
There is no doubt that there are many abusers in Utah, and the victims of their abuse should be protected. However, any lawyer that has dealt with Utah protective orders can also tell you that the accused are often the real victims. And what happens when a “victim” is proved to be a liar? Sadly, criminal charges are typically not brought. So, many false accusers know the system, and feel they have nothing to lose to running to the court with their false allegations.