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S.B. 205
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COHABITANT ABUSE ACT AMENDMENTS
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Terry R. Spencer
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AN ACT RELATING TO THE COHABITANT ABUSE ACT; REQUIRING SHOWING OF
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PREPONDERANCE OF EVIDENCE OF DOMESTIC VIOLENCE OR ABUSE BEFORE AN
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EX PARTE PROTECTIVE ORDER MAY BE ISSUED; REQUIRING PROTECTIVE ORDER
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TO BE FILED AS PART OF ANY PENDING DIVORCE PROCEEDING EXCLUSIVELY IN
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DISTRICT COURT; PROVIDING FOR EVIDENTIARY HEARING ON QUESTION OF
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ISSUANCE OF PROTECTIVE ORDER; AND PROVIDING AN EFFECTIVE DATE.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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30-6-2, as last amended by Chapter 244, Laws of Utah 1996
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30-6-4, as last amended by Chapter 10, Laws of Utah 1997
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30-6-4.2, as last amended by Chapter 10, Laws of Utah 1997
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30-6-4.3, as last amended by Chapter 83, Laws of Utah 1998
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78-3a-104, as last amended by Chapters 99 and 164, Laws of Utah 1999
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78-3a-105, as last amended by Chapter 274, Laws of Utah 1998
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
30-6-2
is amended to read:
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30-6-2. Abuse or danger of abuse -- Protective orders.
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(1) Any cohabitant or any child residing with a cohabitant who has been subjected to abuse
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or domestic violence, or to whom there is a substantial likelihood of immediate danger of abuse
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or domestic violence, may seek an ex parte protective order or a protective order in accordance
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with this chapter, whether or not that person has left the residence or the premises in an effort to
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avoid further abuse.
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(2) (a) A petition for a protective order may be filed under this chapter regardless of
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whether an action for divorce between the parties is pending.
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(b) If a complaint for divorce has already been filed in district court, a petition under this
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chapter [may] shall be filed as part of the divorce proceedings, and the petitioner shall provide
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notice, in accordance with the provisions of this chapter, to the respondent or counsel representing
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the respondent.
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(3) A cohabitant, the department, or any person or institution interested in a minor may
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seek a protective order on behalf of the minor under the circumstances described in Subsection (1),
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regardless of whether the minor could have filed a petition on his own behalf. If a cohabitant
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intends to seek a protective order on his own behalf and on behalf of a minor, a single petition may
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be filed.
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(4) The court shall appoint a guardian ad litem to represent the minor if the court considers
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the appointment necessary for the welfare of the minor.
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(5) The county attorney or district attorney, if appropriate, shall represent the department
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where the department appears as a petitioner.
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(6) A petition seeking a protective order may not be withdrawn without approval of the
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court.
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Section 2.
Section
30-6-4
is amended to read:
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30-6-4. Forms for petitions and protective orders -- Assistance.
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(1) (a) The offices of the court clerk shall provide forms and nonlegal assistance to persons
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seeking to proceed under this chapter.
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(b) The Administrative Office of the Courts shall develop and adopt uniform forms for
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petitions and orders for protection in accordance with the provisions of this chapter on or before
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September 1, 1995. That office shall provide the forms to the clerk of each court authorized to
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issue protective orders. The forms shall include:
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(i) a statement notifying the petitioner for an ex parte protective order that knowing
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falsification of any statement or information provided for the purpose of obtaining a protective
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order may subject the petitioner to felony prosecution;
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(ii) a separate portion of the form for those provisions, the violation of which is a criminal
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offense, and a separate portion for those provisions, the violation of which is a civil violation, as
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provided in Subsection
30-6-4.2
(5);
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(iii) language in the criminal provision portion stating violation of any criminal provision
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is a class A misdemeanor, and language in the civil portion stating violation of or failure to comply
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with a civil provision is subject to contempt proceedings;
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(iv) a space for information the petitioner is able to provide to facilitate identification of
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the respondent, such as social security number, driver license number, date of birth, address,
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telephone number, and physical description;
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(v) a space for the petitioner to request a specific period of time for the civil provisions to
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be in effect, not to exceed 150 days, unless the petitioner provides in writing the reason for the
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requested extension of the length of time beyond 150 days;
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(vi) a statement advising the petitioner that when a minor child is included in an ex parte
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protective order or a protective order, as part of either the criminal or the civil portion of the order,
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the petitioner may provide a copy of the order to the principal of the school where the child
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attends; and
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(vii) a statement advising the petitioner that if the respondent fails to return custody of a
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minor child to the petitioner as ordered in a protective order, the petitioner may obtain from the
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court a writ of assistance.
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(2) If the person seeking to proceed under this chapter is not represented by an attorney,
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it is the responsibility of the court clerk's office to provide:
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(a) the forms adopted pursuant to Subsection (1);
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(b) all other forms required to petition for an order for protection including, but not limited
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to, forms for service;
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(c) clerical assistance in filling out the forms and filing the petition, in accordance with
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Subsection (1)(a). A court clerk's office may designate any other entity, agency, or person to
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provide that service, but the court clerk's office is responsible to see that the service is provided;
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(d) information regarding the means available for the service of process;
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(e) a list of legal service organizations that may represent the petitioner in an action
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brought under this chapter, together with the telephone numbers of those organizations; and
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(f) written information regarding the procedure for transporting a jailed or imprisoned
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respondent to the protective order hearing, including an explanation of the use of transportation
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order forms when necessary.
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(3) No charges may be imposed by a court clerk, constable, or law enforcement agency for:
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(a) filing a petition under this chapter;
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(b) obtaining an ex parte protective order;
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(c) obtaining copies, either certified or not certified, necessary for service or delivery to
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law enforcement officials; or
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(d) fees for service of a petition, ex parte protective order, or protective order.
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(4) A petition for an order of protection shall be in writing [and], verified and may include,
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but not be limited to, other evidence such as police reports, medical reports, or third party
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affidavits.
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(5) (a) All orders for protection shall be issued in the form adopted by the Administrative
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Office of the Courts pursuant to Subsection (1).
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(b) Each protective order issued, except orders issued ex parte, shall include the following
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language:
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"Respondent was afforded both notice and opportunity to be heard in the hearing that gave
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rise to this order. Pursuant to the Violence Against Women Act of 1994, P.L. 103-322, 108 Stat.
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1796, 18 U.S.C.A. 2265, this order is valid in all the United States, the District of Columbia, tribal
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lands, and United States territories."
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Section 3.
Section
30-6-4.2
is amended to read:
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30-6-4.2. Protective orders -- Ex parte protective orders -- Modification of orders --
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Service of process -- Duties of the court.
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(1) If it appears from a petition for an order for protection or a petition to modify an order
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for protection that domestic violence or abuse has occurred or a modification of an order for
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protection is required, a court may:
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(a) without notice, upon receipt of a petition demonstrating, by a preponderance of the
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evidence, the occurrence of domestic violence or abuse and of the need for an ex parte protective
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order, immediately issue an order for protection ex parte or modify an order for protection ex parte
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as it considers necessary to protect the petitioner and all parties named to be protected in the
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petition; or
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(b) upon notice, issue an order for protection or modify an order after a hearing, whether
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or not the respondent appears.
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(2) A court may grant the following relief without notice in an order for protection or a
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modification issued ex parte:
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(a) enjoin the respondent from threatening to commit or committing domestic violence or
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abuse against the petitioner and any designated family or household member;
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(b) prohibit the respondent from harassing, telephoning, contacting, or otherwise
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communicating with the petitioner, directly or indirectly;
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(c) order that the respondent is excluded from the petitioner's residence and its premises,
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and order the respondent to stay away from the residence, school, or place of employment of the
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petitioner, and the premises of any of these, or any specified place frequented by the petitioner and
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any designated family or household member;
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(d) upon finding that the respondent's use or possession of a weapon may pose a serious
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threat of harm to the petitioner, prohibit the respondent from purchasing, using, or possessing a
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firearm or other weapon specified by the court;
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(e) order possession and use of an automobile and other essential personal effects, and
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direct the appropriate law enforcement officer to accompany the petitioner to the residence of the
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parties to ensure that the petitioner is safely restored to possession of the residence, automobile,
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and other essential personal effects, or to supervise the petitioner's or respondent's removal of
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personal belongings;
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(f) grant temporary custody of any minor children to the petitioner;
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(g) order any further relief that the court considers necessary to provide for the safety and
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welfare of the petitioner and any designated family or household member; and
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(h) if the petition requests child support or spousal support, at the hearing on the petition
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order both parties to provide verification of current income, including year-to-date pay stubs or
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employer statements of year-to-date or other period of earnings, as specified by the court, and
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complete copies of tax returns from at least the most recent year.
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(3) A court may grant the following relief in an order for protection or a modification of
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an order after notice and hearing, whether or not the respondent appears:
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(a) grant the relief described in Subsection (2); and
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(b) specify arrangements for visitation of any minor child by the respondent and require
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supervision of that visitation by a third party or deny visitation if necessary to protect the safety
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of the petitioner or child.
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(4) Following the protective order hearing, the court shall:
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(a) as soon as possible, deliver the order to the county sheriff for service of process;
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(b) make reasonable efforts to ensure that the order for protection is understood by the
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petitioner, and the respondent, if present;
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(c) transmit, by the end of the next business day after the order is issued, a copy of the
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order for protection to the local law enforcement agency or agencies designated by the petitioner;
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and
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(d) transmit a copy of the order to the statewide domestic violence network described in
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Section
30-6-8
.
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(5) (a) Each protective order shall include two separate portions, one for provisions, the
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violation of which are criminal offenses, and one for provisions, the violation of which are civil
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violations, as follows:
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(i) criminal offenses are those under Subsections
30-6-4.2
(2)(a) through (e), and under
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Subsection
30-6-4.2
(3)(a) as it refers to Subsections
30-6-4.2
(2)(a) through (e); and
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(ii) civil offenses are those under Subsections
30-6-4.2
(2)(f) through (h), and Subsection
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30-6-4.2
(3)(a) as it refers to Subsections
30-6-4.2
(2)(f) through (h).
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(b) The criminal provision portion shall include a statement that violation of any criminal
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provision is a class A misdemeanor.
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(c) The civil provision portion shall include a notice that violation of or failure to comply
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with a civil provision is subject to contempt proceedings.
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(6) The protective order shall include:
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(a) a designation of a specific date, determined by the court, when the civil portion of the
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protective order either expires or is scheduled for review by the court, which date may not exceed
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150 days after the date the order is issued, unless the court indicates on the record the reason for
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setting a date beyond 150 days;
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(b) information the petitioner is able to provide to facilitate identification of the
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respondent, such as social security number, driver license number, date of birth, address, telephone
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number, and physical description; and
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(c) a statement advising the petitioner that:
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(i) after three years from the date of issuance of the protective order, a hearing may be held
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to dismiss the criminal portion of the protective order;
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(ii) the petitioner should, within the 30 days prior to the end of the three-year period,
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advise the court of the petitioner's current address for notice of any hearing; and
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(iii) the address provided by the petitioner will not be made available to the respondent.
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(7) Child support and spouse support orders issued as part of a protective order are subject
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to mandatory income withholding under Title 62A, Chapter 11, Part 4, Income Withholding in
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IV-D Cases, and Title 62A, Chapter 11, Part 5, [Universal] Income Withholding [-] in Non IV-D
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[Obligees] Cases, except when the protective order is issued ex parte.
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(8) (a) The county sheriff that receives the order from the court, pursuant to Subsection
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(5)(a), shall provide expedited service for orders for protection issued in accordance with this
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chapter, and shall transmit verification of service of process, when the order has been served, to
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the statewide domestic violence network described in Section
30-6-8
.
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(b) This section does not prohibit any law enforcement agency from providing service of
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process if that law enforcement agency:
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(i) has contact with the respondent and service by that law enforcement agency is possible;
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or
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(ii) determines that under the circumstances, providing service of process on the
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respondent is in the best interests of the petitioner.
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(9) (a) When an order is served on a respondent in a jail or other holding facility, the law
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enforcement agency managing the facility shall make a reasonable effort to provide notice to the
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petitioner at the time the respondent is released from incarceration.
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(b) Notification of the petitioner shall consist of a good faith reasonable effort to provide
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notification, including mailing a copy of the notification to the last-known address of the victim.
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(10) (a) A court may modify or vacate an order of protection or any provisions in the order
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after notice and hearing, except as limited under Subsection (10)(b).
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(b) Criminal provisions of a protective order may not be vacated within three years of
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issuance unless the petitioner:
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(i) is personally served with notice of the hearing as provided in Rules 4 and 5, Utah Rules
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of Civil Procedure, and the petitioner personally appears before the court and gives specific
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consent to the vacation of the criminal provisions of the protective order; or
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(ii) submits a verified affidavit, stating agreement to the vacation of the criminal
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provisions of the protective order.
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(11) A protective order may be modified without a showing of substantial and material
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change in circumstances.
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(12) Insofar as the provisions of this chapter are more specific than the Utah Rules of Civil
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Procedure, regarding protective orders, the provisions of this chapter govern.
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Section 4.
Section
30-6-4.3
is amended to read:
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30-6-4.3. Hearings on ex parte orders.
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(1) (a) When a court issues an ex parte protective order the court shall set a date for a
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hearing on the petition within 20 days after the ex parte order is issued.
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(b) Either party may request an evidentiary hearing after the issuance of an ex parte
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protective order. If an evidentiary hearing on the question of issuance of a protective order is
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requested, the burden is on the petitioner to show, by a preponderance of the evidence, that a
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protective order should be issued. No presumption of correctness may be attached to the ex parte
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protective order or its accompanying documentation at the time of that evidentiary hearing. The
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petitioner shall provide evidence in support of issuing a protective order. That evidence may
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include testimony and other relevant evidence.
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[(b)] (c) If, at that hearing, the court does not issue a protective order, the ex parte
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protective order shall expire, unless it is otherwise [modified] extended by the court.
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[(c)] (d) If at that hearing the court issues a protective order, the ex parte protective order
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remains in effect until service of process of the protective order is completed.
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[(d)] (e) A protective order issued after notice and a hearing is effective until further order
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of the court.
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(2) Upon a hearing under this section, the court may grant any of the relief described in
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Section
30-6-4.2
.
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(3) When a court denies a petition for an ex parte protective order or a petition to modify
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an order for protection ex parte, the court shall, at the request of the petitioner, set the matter for
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hearing upon notice to the respondent. That hearing may be an evidentiary hearing upon request
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of either party.
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(4) A respondent who has been served with an ex parte protective order may seek to vacate
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the ex parte protective order prior to the hearing scheduled pursuant to Subsection (1)(a) by filing
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a verified motion to vacate. The respondent's verified motion to vacate and a notice of hearing on
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that motion shall be personally served on the petitioner at least two days prior to the hearing on the
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motion to vacate.
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Section 5.
Section
78-3a-104
is amended to read:
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78-3a-104. Jurisdiction of juvenile court -- Original -- Exclusive.
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(1) Except as otherwise provided by law, the juvenile court has exclusive original
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jurisdiction in proceedings concerning:
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(a) a minor who has violated any federal, state, or local law or municipal ordinance or a
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person younger than 21 years of age who has violated any law or ordinance before becoming 18
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years of age, regardless of where the violation occurred, excluding traffic laws and ordinances;
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(b) a person 21 years of age or older who has failed or refused to comply with an order of
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the juvenile court to pay a fine or restitution, if the order was imposed prior to the person's 21st
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birthday; however, the continuing jurisdiction is limited to causing compliance with existing
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orders;
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(c) a minor who is an abused child, neglected child, or dependent child, as those terms are
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defined in Section
78-3a-103
;
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(d) a protective order for a minor who is alleged to be an abused child or neglected child,
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except as provided in Section
78-3a-105
, and unless:
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(i) the petition is filed by a natural parent of the minor against a natural parent of the
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minor; or
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(ii) the petition is otherwise filed during the pendency of a divorce proceeding between
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the child's parents, one of whom is alleged to have abused or neglected the child;
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(e) the determination of the custody of a minor or to appoint a guardian of the person or
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other guardian of a minor who comes within the court's jurisdiction under other provisions of this
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section;
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(f) the termination of the legal parent-child relationship in accordance with Part 4,
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Termination of Parental Rights Act, including termination of residual parental rights and duties;
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(g) the treatment or commitment of a mentally retarded minor;
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(h) a minor who is a habitual truant from school;
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(i) the judicial consent to the marriage of a minor under age 16 upon a determination of
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voluntariness or where otherwise required by law, employment, or enlistment of a minor when
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consent is required by law;
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(j) any parent or parents of a minor committed to a secure youth corrections facility, to
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order, at the discretion of the court and on the recommendation of a secure youth corrections
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facility, the parent or parents of a minor committed to a secure youth corrections facility for a
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custodial term, to undergo group rehabilitation therapy under the direction of a secure youth
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corrections facility therapist, who has supervision of that parent's or parents' minor, or any other
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therapist the court may direct, for a period directed by the court as recommended by a secure youth
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corrections facility;
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(k) a minor under Title 55, Chapter 12, Interstate Compact on Juveniles;
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(l) the treatment or commitment of a mentally ill child. The court may commit a child to
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the physical custody of a local mental health authority or to the legal custody of the Division of
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Mental Health in accordance with the procedures and requirements of Title 62A, Chapter 12, Part
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2A, Commitment of Persons Under Age 18 to Division of Mental Health. The court may not
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commit a child directly to the Utah State Hospital;
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(m) the commitment of a minor in accordance with Section
62A-8-501
; and
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(n) de novo review of final agency actions resulting from an informal adjudicative
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proceeding as provided in Section
63-46b-15
.
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(2) In addition to the provisions of Subsection (1)(a) the juvenile court has exclusive
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jurisdiction over any traffic offense committed by a minor under 16 years of age and concurrent
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jurisdiction over all other traffic offenses committed by a minor 16 years of age or older, except
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that the court shall have exclusive jurisdiction over the following traffic offenses committed by
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a minor under 18 years of age:
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(a) Section
76-5-207
, automobile homicide;
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(b) Section
41-6-44
, operating a vehicle while under the influence of alcohol or drugs;
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(c) Section
41-6-45
, reckless driving;
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(d) Section
41-1a-1314
, unauthorized control over a motor vehicle, trailer, or semitrailer
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for an extended period of time; and
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(e) Section
41-6-13.5
, fleeing a peace officer.
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(3) The court also has jurisdiction over traffic offenses that are part of a single criminal
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episode filed in a petition that contains an offense over which the court has jurisdiction.
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(4) The juvenile court has jurisdiction over questions of custody, support, and visitation
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certified to it by the district court pursuant to Section
78-3a-105
.
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(5) The juvenile court has jurisdiction over an ungovernable or runaway minor who is
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referred to it by the Division of Child and Family Services or by public or private agencies that
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contract with the division to provide services to that minor where, despite earnest and persistent
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efforts by the division or agency, the minor has demonstrated that he:
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(a) is beyond the control of his parent, guardian, lawful custodian, or school authorities
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to the extent that his behavior or condition endangers his own welfare or the welfare of others; or
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(b) has run away from home.
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(6) This section does not restrict the right of access to the juvenile court by private
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agencies or other persons.
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(7) The juvenile court has jurisdiction of all magistrate functions relative to cases arising
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under Section
78-3a-602
.
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Section 6.
Section
78-3a-105
is amended to read:
315
78-3a-105. Concurrent jurisdiction -- District court and juvenile court.
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(1) The district court or other court has concurrent jurisdiction with the juvenile court as
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follows:
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(a) when a person who is 18 years of age or older and who is under the continuing
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jurisdiction of the juvenile court under Section
78-3a-118
violates any federal, state, or local law
320
or municipal ordinance;
321
(b) in adoption proceedings, when the juvenile court has previously entered an order
322
terminating the rights of a parent, and finds that adoption is in the best interest of the minor;
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adoption proceedings under this section shall be conducted in accordance with the procedures
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described in Title 78, Chapter 30, Adoption;
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(c) in establishing paternity and ordering testing for the purposes of establishing paternity,
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in accordance with Title 78, Chapter 45a, Uniform Act on Paternity, with regard to proceedings
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initiated under Title 78, Chapter 3a, Part 3, Abuse, Neglect, and Dependency Proceedings, or Title
328
78, Chapter 3a, Part 4, Termination of Parental Rights Act; and
329
(d) in proceedings brought on behalf of a minor pursuant to Title 30, Chapter 6, Cohabitant
330
Abuse Act, [unless] except that the district court has exclusive jurisdiction if the petition is filed
331
by a natural parent of the minor against a natural parent of the minor or is otherwise filed during
332
the pendency of a divorce proceeding between the child's parents, one of whom is alleged to have
333
abused or neglected the child.
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(2) The juvenile court has jurisdiction over petitions to modify a minor's birth certificate
335
if the court otherwise has jurisdiction over the minor.
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(3) (a) This section does not deprive the district court of jurisdiction to appoint a guardian
337
for a minor, or to determine the support, custody, and visitation of a minor upon writ of habeas
338
corpus or when the question of support, custody, and visitation is incidental to the determination
339
of a cause in the district court.
340
(b) However, if a petition involving the same minor is pending in the juvenile court or the
341
juvenile court has previously acquired continuing jurisdiction over the same minor, the district
342
court shall certify the question of support, custody, and visitation to the juvenile court for
343
determination.
344
(4) When a question is certified to the juvenile court under Subsection (3), the findings and
345
order of the juvenile court judge are the order of the district court.
346
(5) (a) Where a support, custody, or visitation award has been made by a district court in
347
a divorce action or other proceeding, and the jurisdiction of the district court in the case is
348
continuing, the juvenile court may acquire jurisdiction in a case involving the same minor if the
349
minor is dependent, abused, neglected, or otherwise comes within the jurisdiction of the juvenile
350
court under Section
78-3a-104
.
351
(b) The juvenile court may, by order, change the custody, support, and visitation rights
352
previously ordered in the district court as necessary to implement the order of the juvenile court
353
for the safety and welfare of the minor. The juvenile court order remains in effect so long as the
354
jurisdiction of the juvenile court continues.
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(6) When a copy of the findings and order of the juvenile court has been filed with the
356
district court, the findings and order of the juvenile court are binding on the parties to the divorce
357
action as though entered in the district court.
358
Section 7. Effective date.
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This act takes effect on July 1, 2000.
Legislative Review Note
as of 2-1-00 11:00 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.