Utah Family Law Attorneys


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In Utah, you have three basic types of protective orders that you can petition a Utah District Court for physical protection.

Juvenile Protective Order:

Juvenile protection orders are found at Utah Code 78B-7-2.

Who can apply?

Any interested person may file a petition for a protective order on behalf of a child who is being abused or is in imminent danger of being abused. Sometimes the child themselves file a protective order, sometimes it is the parent or guardian. These protective orders are sometimes misused and attempted by one parent during the pendency of a divorce or custody proceeding to gain custody of a minor child. Other times, there are legitimate petitions to avoid a child being physically or sexually abused.

Domestic Violence Protective Order:

Technically called the Cohabitant Abuse Protective Order. These orders are found also at Utah Code 78B-7-1. These protective orders are your classic domestic violence protective orders.

Who can apply?

Any emancipated child, or a person who is 16 years of age or older who:

  1. (a) is or was a spouse of the other party;
  2. (b) is or was living as if a spouse of the other party;
  3. (c) is related by blood or marriage to the other party;
  4. (d) has or had one or more children in common with the other party;
  5. (e) is the biological parent of the other party’s unborn child; or
  6. (f) resides or has resided in the same residence as the other party.

These orders, like juvenile protective orders, can be misused by a parent during the pendency of a custody battle to get the child(ren) from the other parent. Like the child protective order, if you violate these orders you can be charged with a Class A Misdemeanor.

Stalking Protective Orders:

An anti-stalking protective order is used when you are not related to the abuser or do not fit one of the categories of the broader domestic violence cohabitant abuse protective orders described above. Another key distinction between a stalking protective order and their juvenile and adult version is that a stalking order requires two or more stalking defined instances. Where the other protective orders only require one incident of abuse or imminent abuse.

Who can apply?

Any person who feels that a third party is stalking them in two or more stalking incidents as defined by Utah law. Stalking injunctions may not be obtained against cops, governmental investigators, or licensed private investigators, acting in their official capacity.

You need to prove at least two stalking acts and the statue is much broader on what types of acts constitute stalking compared to what constitutes abuse under child or adult protective orders.

Conclusion.

If you are in need of a protective order, call the Utah family law attorneys at Howard Lewis & Petersen, PC for a free consultation at (801) 373-6345.

 

Protective Orders Expungements.  New Utah Law EFF—05/04/2022

Expungement of Protective Orders and Stalking Injunctions (Effective 7/1/2022)

Effective 07/01/2022 you can expunge and seal from the public eye certain stalking and civil protective orders.  Prior law was once a protective order was filed against you, you can never get it sealed, even if the protective order was dismissed.

Protective orders mare your public record.  Getting them dismissed and expunged is good for your public record.

What Type of Utah Protective Orders Does the Protective Order Expungement Law Apply To?

            The new expungement law for protective orders only applies to civil protective orders.  Not criminal or federal protective orders.  There are many different types of civil protective orders, but the new expungement law only applies to:

Stalking Protective Orders.

Civil Protective Orders.

What Types of Utah Protective Orders can Be Expunged?

Civil Protective Orders are defined in the new statute to be:

(a)        an ex parte civil protective order;

(b)        an ex parte civil stalking injunction;

(c)        a civil protective order; or

(d)        a civil stalking injunction.

Different Types of Utah Civil Protective Orders.

The law is so new that it is not clear whether all types of civil protective orders are eligible for expungement or just cohabitant protective orders.    Utah has the following different types of civil protective orders:

(a)        Child Protective Orders;

(b)        Dating Violence Protective Orders;

(c)        Sexual Violence Protective Orders;

(d)        Cohabitant Abuse Protective Orders;

The new protective orders expungement law clearly does not apply to any type of federal protective order or criminal protective order.

            Retroactive Application.

            The new protective order expungement law applies retroactive to all eligible protective orders.  Meaning you can expunge all old protective orders prior to law becoming effective.

78B-7-1003.  Requirements for expungement of protective order or stalking injunction.

            The hearing procedure is basically the following:

(a).  The petitioner who is seeking to expunge a eligible Utah protective order must serve the petition to expunge on the person who originally filed the protective order against them.

(b).  The respondent may file an objection to the request to expunge the protective order.  The petitioner may file a response to the objection to the protective order petition.

(c).  If no objection is filed to the protective order expungement after 60 days, the court shall expunge the protective order from the public view without a hearing.

(d).  If objections are filed, a hearing shall be held and the  court shall adjudicate the petition to expunge the protective order.

Legal Criteria to Expunge a Civil Protective Order:

Ex-Parte Protective Orders may be expunged if:

(a).       The ex-parte civil protective order was issued but it was ultimately dismissed, dissolved, or expired upon a hearing by the court, or

(b).       The petitioner has not been arrested, charged, or convicted for violating the ex parte civil protective order or ex parte civil stalking injunction; and

(c).       There are no criminal proceedings pending against the petitioner in the state.

Full Civil protective orders may be expunged if: 

(a)        The protective order has been dismissed, dissolved, vacated, or expired; and

(b)        Three years have passed from the day on which the civil protective order was dismissed, dissolved, vacated, or expired;

(c)        The petitioner has not been arrested, charged, or convicted for violating the civil protective order,  and

(d)        There are no criminal proceedings pending against the petitioner in the state.

Effect of an Expunged Protective Order.

Upon entry of the protective order expungement, the petitioner may consider the protective order to never have occurred; Or the petitioner may reply to an inquiry on the matter as though there was never a civil order.

Service of Expungement Order.  On What Agencies?

The petitioner is responsible for serving the expungement order on all effected agencies.  Only upon receipt of the expungement order shall an agency be required to seal the protective order documents.

            CALL ATTORNEY JAKE GUNTER.  GET YOUR PROTECTIVE ORDERS EXPUNGED FROM THE PUBLIC RECORD.  CALL/TXT (801) 373-6345. 

 

Enrolled Copy S.B. 85

1 PROTECTIVE ORDER AND STALKING INJUNCTION

2 EXPUNGEMENT

3 2022 GENERAL SESSION

4 STATE OF UTAH

5 Chief Sponsor: Todd D. Weiler

6 House Sponsor: Stephanie Pitcher

7

8 LONG TITLE

9 General Description:

10 This bill addresses the expungement of protective orders and stalking injunctions.

11 Highlighted Provisions:

12 This bill:

13 < defines terms relating to the expungement of protective orders and stalking

14 injunctions;

15 < makes statutory provisions for the expungement of protective orders and stalking

16 injunctions retroactive;

17 < allows for the expungement of certain protective orders and stalking injunctions;

18 < provides the requirements for expunging certain protective orders and stalking

19 injunctions;

20 < addresses the distribution and effect of an order for expungement of certain

21 protective orders and stalking injunctions; and

22 < makes technical and conforming changes.

23 Money Appropriated in this Bill:

24 None

25 Other Special Clauses:

26 This bill provides a special effective date.

27 Utah Code Sections Affected:

28 ENACTS:

29 78B-7-1001, Utah Code Annotated 1953

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30 78B-7-1002, Utah Code Annotated 1953

31 78B-7-1003, Utah Code Annotated 1953

32 78B-7-1004, Utah Code Annotated 1953

33

34 Be it enacted by the Legislature of the state of Utah:

35 Section 1. Section 78B-7-1001 is enacted to read:

36 Part 10. Expungement of Protective Orders and Stalking Injunctions

37 78B-7-1001. Definitions.

38 As used in this part:

39 (1) (a) Except as provided in Subsection (1)(b), “agency” means a state, county, or

40 local government entity that generates or maintains records relating to a civil order for which

41 expungement may be ordered.

42 (b) “Agency” does not include the Division of Child and Family Services created in

43 Section 62A-4a-103.

44 (2) “Civil order” means:

45 (a) an ex parte civil protective order;

46 (b) an ex parte civil stalking injunction;

47 (c) a civil protective order; or

48 (d) a civil stalking injunction.

49 (3) “Expunge” means to seal or otherwise restrict access to an individual’s record held

50 by an agency when the record includes a civil order.

51 (4) “Petitioner” means an individual petitioning for expungement of a civil order under

52 this part.

53 Section 2. Section 78B-7-1002 is enacted to read:

54 78B-7-1002. Retroactive application.

55 The provisions of this part apply retroactively to all civil orders issued before, on, or

56 after May 4, 2022.

57 Section 3. Section 78B-7-1003 is enacted to read:

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58 78B-7-1003. Requirements for expungement of protective order or stalking

59 injunction.

60 (1) (a) An individual against whom a civil order is sought may petition the court to

61 expunge records of the civil order.

62 (b) A petition under Subsection (1) shall be filed in accordance with the Utah Rules of

63 Civil Procedure.

64 (2) (a) The petitioner shall provide notice to the individual whom filed the civil order

65 against the petitioner in accordance with Rule 4 of the Utah Rules of Civil Procedure.

66 (b) The individual who filed the civil order against the petitioner:

67 (i) may file a written objection with the court within 30 days after the day on which the

68 petition is received by the individual; and

69 (ii) if the individual files a written objection, provide a copy of the written objection to

70 the petitioner.

71 (c) If the court receives a written objection to the petition for expungement of a civil

72 order, the court shall:

73 (i) set a date for a hearing on the petition;

74 (ii) provide notice at least 30 days before the day on which the hearing is held to:

75 (A) all parties of the civil order; and

76 (B) any other person or agency that the court has reason to believe may have relevant

77 information related to the expungement of the civil order.

78 (d) The petitioner may respond, in writing, to any written objection within 14 days after

79 the day on which the written objection is received by the court.

80 (3) If no written objection is received within 60 days from the day on which the

81 petition for expungement is filed under Subsection (1), the court may grant the expungement in

82 accordance with Subsection (4) without a hearing.

83 (4) A court may expunge an ex parte civil protective order or an ex parte civil stalking

84 injunction if:

85 (a) the ex parte civil protective order or the ex parte civil stalking injunction was issued

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86 but:

87 (i) the ex parte civil protective order or the ex parte civil stalking injunction is

88 dismissed, dissolved, or expired upon a hearing by the court;

89 (ii) the court did not issue a civil protective order or a civil stalking injunction on the

90 same circumstances for which the ex parte civil protective order or the ex parte civil stalking

91 injunction was issued;

92 (iii) at least 30 days have passed from the day on which the ex parte civil protective

93 order or the ex parte civil stalking injunction was issued;

94 (iv) the petitioner has not been arrested, charged, or convicted for violating the ex parte

95 civil protective order or ex parte civil stalking injunction; and

96 (v) there are no criminal proceedings pending against the petitioner in the state; or

97 (b) (i) the individual who filed the ex parte civil protective order or the ex parte civil

98 stalking injunction failed to appear for the hearing on the ex parte civil protective order or ex

99 parte civil stalking injunction;

100 (ii) at least 30 days have passed from the day on which the hearing on the ex parte civil

101 protective order or the ex parte civil stalking injunction was set to occur, including any

102 continuance, postponement, or rescheduling of the hearing;

103 (iii) the petitioner has not been arrested, charged, or convicted for violating the ex parte

104 civil protective order or ex parte civil stalking injunction; and

105 (iv) there are no criminal proceedings pending against the petitioner in the state.

106 (5) A court may expunge a civil protective order or a civil stalking injunction if:

107 (a) the civil protective order or the civil stalking injunction has been dismissed,

108 dissolved, vacated, or expired;

109 (b) three years have passed from the day on which the civil protective order or the civil

110 stalking injunction is dismissed, dissolved, vacated, or expired;

111 (c) the petitioner has not been arrested, charged, or convicted for violating the civil

112 protective order or the civil stalking injunction; and

113 (d) there are no criminal proceedings pending against the petitioner in the state.

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114 Section 4. Section 78B-7-1004 is enacted to read:

115 78B-7-1004. Distribution and effect of order of expungement — Penalty.

116 (1) An individual who receives an order of expungement under Section 78B-7-1003

117 shall be responsible for delivering a copy of the order of expungement to any affected agency.

118 (2) Upon receipt of an order of expungement as described in Subsection (1), an agency

119 shall expunge all records described in the expungement order that are under the control of the

120 agency.

121 (3) Upon entry of an expungement order by a court under Section 78B-7-1003:

122 (a) the civil order is considered to never have occurred; and

123 (b) the petitioner may reply to an inquiry on the matter as though there was never a

124 civil order.

125 (4) (a) Unless ordered by a court to do so, an agency or official may not divulge

126 information or records that have been expunged under this part.

127 (b) An expungement order may not restrict an agency’s use or dissemination of records

128 in the agency’s ordinary course of business until the agency has received a copy of the

129 expungement order.

130 (c) Any action taken by an agency after issuance of the expungement order but before

131 the agency’s receipt of a copy of the expungement order may not be invalidated by the order.

132 (5) An expungement order under this part may not:

133 (a) terminate or invalidate any pending administrative proceedings or actions of which

134 the individual had notice according to the records of the administrative body before issuance of

135 the expungement order;

136 (b) affect the enforcement of any order or findings issued by an administrative body

137 pursuant to the administrative body’s lawful authority prior to issuance of the expungement

138 order; or

139 (c) prevent an agency from maintaining, sharing, or distributing any record required by

140 law.

141 (6) An employee or agent of an agency that is prohibited from disseminating

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142 information from an expunged record under this section who knowingly or intentionally

143 discloses identifying information from the expunged record, unless allowed by law, is guilty of

144 a class A misdemeanor.

145 (7) Records expunged under this part may be released to, or viewed by, the following

146 individuals:

147 (a) the petitioner; or

148 (b) parties to a civil action arising out of the expunged civil order, providing the

149 information is kept confidential and utilized only in the action.

150 (8) This part does not preclude a court from considering the same circumstances or

151 evidence for which an expunged civil order was issued in any proceeding that occurs after the

152 civil order is expunged.

153 Section 5. Effective date.

154 This bill takes effect on July 1, 2022.

  CALL ATTORNEY JAKE GUNTER.  GET YOUR PROTECTIVE ORDERS EXPUNGED FROM THE PUBLIC RECORD.  CALL/TXT (801) 373-6345.