Representative David Litvack proposes the following substitute bill:
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DOMESTIC VIOLENCE AND DATING
2
VIOLENCE AMENDMENTS
3
2006 GENERAL SESSION
4
STATE OF UTAH
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Chief Sponsor: David Litvack
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Senate Sponsor:
____________
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Cosponsor:Jackie Biskupski
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LONG TITLE
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General Description:
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This bill provides for the issuance, modification, and enforcement of protective orders
12
between certain individuals who are, or have been, in a dating relationship, and for the
13
provision of services to victims of dating violence.
14
Highlighted Provisions:
15
This bill:
16
. defines terms;
17
. provides for the issuance, modification, and enforcement of protective orders
18
between parties who are, or have been, in a dating relationship when:
19
. the
parties are emancipated or 16 years of age or older;
20
. the
parties are, or have been, in a dating relationship with each other; and
21
. a
party commits abuse or dating violence against the other party;
22
. requires the Administrative Office of the Courts to develop and adopt uniform
23
forms for petitions and orders for protection relating to dating violence;
24
. provides that a court
may include in a protective order a restriction prohibiting a
25
respondent from being within a specified distance of the petitioner;
26
. requires the Division of Child and Family Services, within the Department of
27
Human Services, to provide certain services to victims of dating violence;
28
. describes the conditions that may be placed on an alleged perpetrator of dating
29
violence:
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. in a protective order;
31
. in
an order of probation for violation of a protective order relating to
dating
32
violence; or
33
. as
a condition of release prior to trial for violation of a protective
order relating
34
to dating violence; and
35
. makes technical changes.
36
Monies Appropriated in this Bill:
37
None
38
Other Special Clauses:
39
This bill takes effect on September 1, 2006.
40
Utah Code Sections Affected:
41
AMENDS:
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30-6-1, as last amended by Chapter 68, Laws of Utah 2003
43
30-6-2, as last amended by Chapter 68, Laws of Utah 2003
44
30-6-4, as last amended by Chapter 10, Laws of Utah 1997
45
30-6-4.2, as last amended by Chapter 156, Laws of Utah 2005
46
30-6-4.4, as enacted by Chapter 300, Laws of Utah 1995
47
30-6-4.5, as last amended by Chapter 244, Laws of Utah 1996
48
30-6-11, as last amended by Chapter 318, Laws of Utah 1996
49
62A-4a-101, as last amended by Chapter 95, Laws of Utah 2005
50
77-36-1, as last amended by Chapter 81, Laws of Utah 2002
51
77-36-2.7, as last amended by Chapter 54, Laws of Utah 1999
52
77-36-5.1, as last amended by Chapter 244, Laws of Utah 1996
53
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
30-6-1
is amended to read:
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30-6-1. Definitions.
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As used in this chapter:
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(1) "Abuse" means intentionally or knowingly:
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(a) causing or attempting to cause [a cohabitant] physical harm to a person; or
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[intentionally or knowingly]
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(b) placing a [cohabitant] person in reasonable fear of imminent physical harm.
62
(2) (a) "Cohabitant" means a person who:
63
(i) (A) is an emancipated person pursuant to Section
15-2-1
; or [a person who is]
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(B) 16 years of age or older [who:]; and
65
[(a)] (ii) (A) is or was a spouse of the other party;
66
[(b)] (B) is or was living as if a spouse of the other party;
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[(c)] (C) is related by blood or marriage to the other party;
68
[(d)] (D) has one or more children in common with the other party;
69
[(e)] (E) is the biological parent of the other party's unborn child; or
70
[(f)] (F) resides or has resided in the same residence as the other party.
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[(3)] (b) Notwithstanding Subsection (2)(a), "cohabitant" does not include:
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[(a)] (i) the relationship of natural parent, adoptive parent, or step-parent to a minor; or
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[(b)] (ii) the relationship between natural, adoptive, step, or foster siblings who are
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under 18 years of age.
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[(4)] (3) "Court clerk" means a district court clerk.
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(4) "Dating Partner" means a person who:
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(a) (i) is an emancipated person pursuant to Section
15-2-1
; or
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(ii) is 16 years of age or older; and
79
(b) is, or has been, in a dating relationship with the other party.
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(5) (a) "Dating relationship" means a social relationship of a romantic or intimate
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nature, regardless of whether the relationship involves sexual intimacy.
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(b) "Dating relationship" does not include:
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(i) a casual relationship; or
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(ii) casual fraternization between two individuals in a business, educational, or social
85
context.
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(c) In determining, based on a totality of the circumstances, whether a dating
87
relationship exists:
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(i) all relevant factors should be considered, including:
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(A) whether the parties developed a minimal, social, interpersonal bonding, over and
90
above a mere casual fraternization;
91
(B) the length of the parties' relationship;
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(C) the nature and frequency of the parties' interactions;
93
(D) the ongoing expectations of the parties, individually or jointly, with respect to the
94
relationship;
95
(E) whether, by statement or conduct, the parties demonstrated an affirmation of their
96
relationship before others; and
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(F) whether other reasons exist that support or detract from a finding that a dating
98
relationship exists; and
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(ii) it is not necessary that all, or a particular number, of the factors described in
100
Subsection (5)(c)(i) are found to support the existence of a dating relationship.
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(6) "Dating violence" means:
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(a) any criminal offense involving violence or physical harm or threat of violence or
103
physical harm, or any attempt, conspiracy, or solicitation to commit a criminal offense
104
involving violence or physical harm, when committed by one dating partner against another; or
105
(b) the commission or attempt to commit, any of the following offenses by one dating
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partner against another:
107
(i) aggravated assault, as described in Section
76-5-103
;
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(ii) assault, as described in Section
76-5-102
;
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(iii) criminal homicide, as described in Section
76-5-201
;
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(iv) harassment, as described in Section
76-5-106
;
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(v) electronic communication harassment, as described in Section
76-9-201
;
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(vi) kidnaping, child kidnaping, or aggravated kidnaping, as described in Sections
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76-5-301
,
76-5-301.1
, and
76-5-302
;
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(vii) mayhem, as described in Section
76-5-105
;
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(viii) sexual offenses, as described in Title 76, Chapter 5, Part 4, Sexual Offenses, and
116
Title 76, Chapter 5a, Sexual Exploitation of Children;
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(ix) stalking, as described in Section
76-5-106.5
;
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(x) unlawful detention, as described in Section
76-5-304
;
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(xi) violation of a protective order or ex parte protective order, as described in Section
120
76-5-108
;
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(xii) any offense against property described in Title 76, Chapter 6, Part 1, Property
122
Destruction, 2, Burglary and Criminal Trespass, or 3, Robbery;
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(xiii) possession of a deadly weapon with intent to assault, as described in Section
124
76-10-507
; or
125
(xiv) discharge of a firearm from a vehicle, near a highway, or in the direction of any
126
person, building, or vehicle, as described in Section
76-10-508
.
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[(5)] (7) "Domestic violence" [means the same as that term] is as defined in Section
128
77-36-1
.
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[(6)] (8) "Ex parte protective order" means an order issued without notice to the
130
defendant in accordance with this chapter.
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[(7)] (9) "Foreign protective order" means a protective order issued by another state,
132
territory, or possession of the United States, tribal lands of the United States, the
133
Commonwealth of Puerto Rico, or the District of Columbia which shall be given full faith and
134
credit in Utah, if the protective order is similar to a protective order issued in compliance with
135
Title 30, Chapter 6, Cohabitant Abuse Act, or Title 77, Chapter 36, Cohabitant Abuse
136
Procedures Act, and includes the following requirements:
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(a) the requirements of due process were met by the issuing court, including subject
138
matter and personal jurisdiction;
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(b) the respondent received reasonable notice; and
140
(c) the respondent had an opportunity for a hearing regarding the protective order.
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[(8)] (10) "Law enforcement unit" or "law enforcement agency" means any public
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agency having general police power and charged with making arrests in connection with
143
enforcement of the criminal statutes and ordinances of this state or any political subdivision.
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[(9)] (11) "Peace officer" means those persons specified in Title 53, Chapter 13, Peace
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Officer Classifications.
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[(10)] (12) "Protective order" means an order issued pursuant to this chapter
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subsequent to a hearing on the petition, of which the petitioner and respondent have been given
148
notice in accordance with this chapter.
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Section 2.
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) (a) Any [cohabitant who has been subjected to abuse or domestic violence, or to
152
whom there is a substantial likelihood of abuse or domestic violence,] person may seek an ex
153
parte protective order or a protective order in accordance with this chapter, if the person is
154
subjected to, or there is a substantial likelihood that the person will be subjected to:
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(i) abuse by a cohabitant or a dating partner of the person;
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(ii) domestic violence by a cohabitant of the person; or
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(iii) dating violence by a dating partner of the person.
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(b) A person may seek an order described in Subsection (1)(a), whether or not that
159
person:
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(i) has left the residence or the premises in an effort to avoid further abuse[.]; or
161
(ii) taken other action to end the relationship.
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(2) A petition for a protective order may be filed under this chapter regardless of
163
whether an action for divorce between the parties is pending.
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(3) A petition seeking a protective order may not be withdrawn without approval of the
165
court.
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Section 3.
Section
30-6-4
is amended to read:
167
30-6-4. Forms for petitions and protective orders -- Assistance.
168
(1) (a) The offices of the court clerk shall provide forms and nonlegal assistance to
169
persons seeking to proceed under this chapter.
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(b) The Administrative Office of the Courts shall develop and adopt uniform forms for
171
petitions and orders for protection in accordance with the provisions of this chapter on or
172
before September 1, [1995] 2006. That office shall provide the forms to the clerk of each court
173
authorized to 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
176
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
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criminal offense, and a separate portion for those provisions, the violation of which is a civil
179
violation, as provided in Subsection
30-6-4.2
(5);
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(iii) language in the criminal provision portion stating violation of any criminal
181
provision is a class A misdemeanor, and language in the civil portion stating violation of or
182
failure to comply 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
184
of the respondent, such as social security number, driver license number, date of birth, address,
185
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
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to be in effect, not to exceed 150 days, unless the petitioner provides in writing the reason for
188
the 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
190
parte protective order or a protective order, as part of either the criminal or the civil portion of
191
the order, the petitioner may provide a copy of the order to the principal of the school where the
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child attends; and
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(vii) a statement advising the petitioner that if the respondent fails to return custody of
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a minor child to the petitioner as ordered in a protective order, the petitioner may obtain from
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the court a writ of assistance.
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(2) If the person seeking to proceed under this chapter is not represented by an
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attorney, 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
200
limited to, forms for service;
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(c) clerical assistance in filling out the forms and filing the petition, in accordance with
202
Subsection (1)(a). A court clerk's office may designate any other entity, agency, or person to
203
provide that service, but the court clerk's office is responsible to see that the service is
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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
209
respondent to the protective order hearing, including an explanation of the use of transportation
210
order forms when necessary.
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(3) No charges may be imposed by a court clerk, constable, or law enforcement agency
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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
216
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.
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(5) (a) All orders for protection shall be issued in the form adopted by the
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Administrative 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
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following language:
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"Respondent was afforded both notice and opportunity to be heard in the hearing that
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gave rise to this order. Pursuant to the Violence Against Women Act of 1994, P.L. 103-322,
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108 Stat. 1796, 18 U.S.C.A. 2265, this order is valid in all the United States, the District of
226
Columbia, tribal lands, and United States territories."
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Section 4.
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
229
-- Service of process -- Duties of the court.
230
(1) If it appears from a petition for an order for protection or a petition to modify an
231
order for protection that domestic violence, dating violence, or abuse has occurred or a
232
modification of an order for protection is required, a court may:
233
(a) without notice, immediately issue an order for protection ex parte or modify an
234
order for protection ex parte as [it] the court considers necessary to protect the petitioner and
235
all parties named to be protected in the petition; or
236
(b) upon notice, issue an order for protection or modify an order after a hearing,
237
whether 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
239
modification issued ex parte:
240
(a) enjoin the respondent from threatening to commit or committing domestic violence,
241
dating violence, or abuse against the petitioner and any designated family or household
242
member;
243
(b) prohibit the respondent from harassing, telephoning, contacting, or otherwise
244
communicating with the petitioner, directly or indirectly;
245
(c) order that the respondent is excluded from the petitioner's residence and its
246
premises, and order the respondent to stay away from the residence, school, or place of
247
employment of the petitioner, and the premises of any of these, or any specified place
248
frequented by the petitioner and any designated family or household member;
249
(d) prohibit the respondent from being within a specified distance of the petitioner;
250
[(d)] (e) upon finding that the respondent's use or possession of a weapon may pose a
251
serious threat of harm to the petitioner, prohibit the respondent from purchasing, using, or
252
possessing a firearm or other weapon specified by the court;
253
[(e)] (f) order possession and use of an automobile and other essential personal effects,
254
and direct the appropriate law enforcement officer to accompany the petitioner to the residence
255
of the parties to ensure that the petitioner is safely restored to possession of the residence,
256
automobile, and other essential personal effects, or to supervise the petitioner's or respondent's
257
removal of personal belongings;
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[(f)] (g) if the petitioner is a cohabitant of the other party, grant to the petitioner
259
temporary custody of any minor children of the parties;
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[(g)] (h) order any further relief that the court considers necessary to provide for the
261
safety and welfare of the petitioner and any designated family or household member; and
262
[(h)] (i) if [the] a petition by a cohabitant requests child support or spousal support, at
263
the hearing on the petition order both parties to provide verification of current income,
264
including year-to-date pay stubs or employer statements of year-to-date or other period of
265
earnings, as specified by the court, and complete copies of tax returns from at least the most
266
recent year.
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(3) A court may grant the following relief in an order for protection or a modification
268
of an order after notice and hearing, whether or not the respondent appears:
269
(a) grant the relief described in Subsection (2); and
270
(b) if the petitioner is a cohabitant of the other party, specify arrangements for
271
parent-time of any minor child by the respondent and require supervision of that parent-time by
272
a third party or deny parent-time if necessary to protect the safety of the petitioner or child.
273
(4) Following the protective order hearing, the court shall:
274
(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
276
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
278
order for protection to the local law enforcement agency or agencies designated by the
279
petitioner; and
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(d) transmit a copy of the order to the statewide domestic violence network described
281
in Section
30-6-8
.
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(5) (a) Each protective order shall include two separate portions, one for provisions, the
283
violation of which are criminal offenses, and one for provisions, the violation of which are civil
284
violations, as follows:
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(i) criminal offenses are those under Subsections (2)(a) through [(e)] (f), and under
286
Subsection (3)(a) as it refers to Subsections (2)(a) through [(e)] (f); and
287
(ii) civil offenses are those under Subsections (2)[(f)](g) through [(h)] (i), and
288
Subsection (3)(a) as it refers to Subsections (2)[(f)](g) through [(h)] (i).
289
(b) The criminal provision portion shall include a statement that violation of any
290
criminal 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
292
comply with a civil provision is subject to contempt proceedings.
293
(6) The protective order shall include:
294
(a) a designation of a specific date, determined by the court, when the civil portion of
295
the protective order either expires or is scheduled for review by the court, which date may not
296
exceed 150 days after the date the order is issued, unless the court indicates on the record the
297
reason for setting a date beyond 150 days;
298
(b) information the petitioner is able to provide to facilitate identification of the
299
respondent, such as Social Security number, driver license number, date of birth, address,
300
telephone number, and physical description; and
301
(c) except for a protective order described in Subsection (7)(a), a statement advising
302
the petitioner that:
303
(i) after two years from the date of issuance of the protective order, a hearing may be
304
held to dismiss the criminal portion of the protective order;
305
(ii) the petitioner should, within the 30 days prior to the end of the two-year period,
306
advise the court of the petitioner's current address for notice of any hearing; and
307
(iii) the address provided by the petitioner will not be made available to the respondent.
308
(7) (a) A protective order issued under this section between parties who are dating
309
partners, but are not cohabitants, shall expire 180 days after the day on which the order is
310
issued, unless, subject to Subsection (7)(b), the court indicates on the record the reason for
311
setting an expiration date that is more than 180 days after the day on which the order is issued.
312
(b) A court may not set an expiration date for a protective order described in
313
Subsection (7)(a) that is more than two years after the day on which the order is issued.
314
[(7)] (8) Child support and spouse support orders issued as part of a protective order
315
are subject to mandatory income withholding under Title 62A, Chapter 11, Part 4, Income
316
Withholding in IV-D Cases, and Title 62A, Chapter 11, Part 5, Income Withholding in Non
317
IV-D Cases, except when the protective order is issued ex parte.
318
[(8)] (9) (a) The county sheriff that receives the order from the court, pursuant to
319
Subsection (5)(a), shall provide expedited service for orders for protection issued in accordance
320
with this chapter, and shall transmit verification of service of process, when the order has been
321
served, to the statewide domestic violence network described in Section
30-6-8
.
322
(b) This section does not prohibit any law enforcement agency from providing service
323
of process if that law enforcement agency:
324
(i) has contact with the respondent and service by that law enforcement agency is
325
possible; or
326
(ii) determines that under the circumstances, providing service of process on the
327
respondent is in the best interests of the petitioner.
328
[(9)] (10) (a) When an order is served on a respondent in a jail or other holding facility,
329
the law enforcement agency managing the facility shall make a reasonable effort to provide
330
notice to the petitioner at the time the respondent is released from incarceration.
331
(b) Notification of the petitioner shall consist of a good faith reasonable effort to
332
provide notification, including mailing a copy of the notification to the last-known address of
333
the victim.
334
[(10)] (11) A court may modify or vacate an order of protection or any provisions in
335
the order after notice and hearing, except that the criminal provisions of a protective order may
336
not be vacated within two years of issuance unless the petitioner:
337
(a) is personally served with notice of the hearing as provided in Rules 4 and 5, Utah
338
Rules of Civil Procedure, and the petitioner personally appears before the court and gives
339
specific consent to the vacation of the criminal provisions of the protective order; or
340
(b) submits a verified affidavit, stating agreement to the vacation of the criminal
341
provisions of the protective order.
342
[(11)] (12) A protective order may be modified without a showing of substantial and
343
material change in circumstances.
344
[(12)] (13) Insofar as the provisions of this chapter are more specific than the Utah
345
Rules of Civil Procedure, regarding protective orders, the provisions of this chapter govern.
346
Section 5.
Section
30-6-4.4
is amended to read:
347
30-6-4.4. No denial of relief solely because of lapse of time.
348
The court may not deny a petitioner relief requested pursuant to this chapter solely
349
because of a lapse of time between an act of domestic violence, dating violence, or abuse and
350
the filing of the petition for an order of protection.
351
Section 6.
Section
30-6-4.5
is amended to read:
352
30-6-4.5. Mutual protective orders prohibited -- Exceptions.
353
(1) A court may not grant a mutual order or mutual orders for protection to opposing
354
parties, unless each party:
355
(a) has filed an independent petition against the other for a protective order, and both
356
petitions have been served;
357
(b) makes a showing at a due process protective order hearing of [abuse or] domestic
358
violence, dating violence, or abuse committed by the other party; and
359
(c) demonstrates that the [abuse or] domestic violence, dating violence, or abuse did
360
not occur in self-defense.
361
(2) If the court issues mutual protective orders, the circumstances justifying those
362
orders shall be documented in the case file.
363
Section 7.
Section
30-6-11
is amended to read:
364
30-6-11. Division of Child and Family Services -- Development and assistance of
365
volunteer network.
366
(1) The Division of Child and Family Services within the Department of Human
367
Services shall, either directly or by contract:
368
(a) develop a statewide network of volunteers and community resources to support,
369
assist, and advocate on behalf of victims of domestic violence and dating violence;
370
(b) train volunteers to provide clerical assistance to persons seeking orders for
371
protection under this chapter;
372
(c) coordinate the provision of volunteer services with Utah Legal Services and the
373
Legal Aid Society; and
374
(d) assist local government officials in establishing community based support systems
375
for victims of domestic violence and dating violence.
376
(2) Volunteers shall provide additional nonlegal assistance to victims of domestic
377
violence and dating violence, including providing information on the location and availability
378
of shelters and other community resources.
379
Section 8.
Section
62A-4a-101
is amended to read:
380
62A-4a-101. Definitions.
381
As used in this chapter:
382
(1) "Abuse" means:
383
(a) actual or threatened nonaccidental physical or mental harm;
384
(b) negligent treatment;
385
(c) sexual exploitation; or
386
(d) any sexual abuse.
387
(2) "Adoption services" means:
388
(a) placing children for adoption;
389
(b) subsidizing adoptions under Section
62A-4a-105
;
390
(c) supervising adoption placements until the adoption is finalized by the court;
391
(d) conducting adoption studies;
392
(e) preparing adoption reports upon request of the court; and
393
(f) providing postadoptive placement services, upon request of a family, for the
394
purpose of stabilizing a possible disruptive placement.
395
(3) "Board" means the Board of Child and Family Services established in accordance
396
with Sections
62A-1-105
,
62A-1-107
, and
62A-4a-102
.
397
(4) "Child" has the same meaning as "minor," as defined in this section.
398
(5) "Consumer" means a person who receives services offered by the division in
399
accordance with this chapter.
400
(6) "Chronic physical abuse" means repeated or patterned physical abuse.
401
(7) "Chronic neglect" means a repeated or patterned failure or refusal by a parent,
402
guardian, or custodian to provide necessary care for a minor's safety, morals, or well-being.
403
(8) "Chronic emotional abuse" means repeated or patterned emotional abuse.
404
(9) "Custody," with regard to the division, means the custody of a child in the division
405
as of the date of disposition.
406
(10) "Day-care services" means care of a child for a portion of the day which is less
407
than 24 hours:
408
(a) in the child's own home by a responsible person; or
409
(b) outside of the child's home in a:
410
(i) day-care center;
411
(ii) family group home; or
412
(iii) family child care home.
413
(11) "Dependent child" or "dependency" means a child, or the condition of a child, who
414
is homeless or without proper care through no fault of the child's parent, guardian, or custodian.
415
(12) "Director" means the director of the Division of Child and Family Services.
416
(13) "Division" means the Division of Child and Family Services.
417
(14) (a) "Domestic violence services" means:
418
(i) temporary shelter, treatment, and related services to persons who are victims of
419
abuse by a cohabitant and their dependent children; and
420
(ii) treatment services for domestic violence perpetrators.
421
(b) As used in this Subsection (14):
422
(i) "abuse" [means the same as that term] is as defined in [Subsection] Section
423
30-6-1
[(1)]; [and]
424
(ii) "cohabitant" is as defined in Section
30-6-1
; and
425
[(ii)] (iii) "domestic violence perpetrator" means a person who is alleged to have
426
committed, has been convicted of, or has pled guilty to an act of domestic violence as defined
427
in [Subsection] Section
77-36-1
[(2)].
428
(15) "Homemaking service" means the care of individuals in their domiciles, and help
429
given to individual caretaker relatives to achieve improved household and family management
430
through the services of a trained homemaker.
431
(16) (a) "Minor" means a person under 18 years of age.
432
(b) "Minor" may also include a person under 21 years of age for whom the division has
433
been specifically ordered by the juvenile court to provide services.
434
(17) "Natural parent" means a minor's biological or adoptive parent, and includes a
435
minor's noncustodial parent.
436
(18) (a) "Neglect" means:
437
(i) abandonment of a child, except as provided in Part 8, Safe Relinquishment of a
438
Newborn Child;
439
(ii) subjecting a child to mistreatment or abuse;
440
(iii) lack of proper parental care by reason of the fault or habits of the parent, guardian,
441
or custodian;
442
(iv) failure or refusal of a parent, guardian, or custodian to provide proper or necessary
443
subsistence, education, or medical care, including surgery or psychiatric services when
444
required, or any other care necessary for the child's health, safety, morals, or well-being; or
445
(v) a child at risk of being neglected or abused because another child in the same home
446
is neglected or abused.
447
(b) The aspect of neglect relating to education, described in Subsection (18)(a)(iv),
448
means that, after receiving notice that a child has been frequently absent from school without
449
good cause, or that the child has failed to cooperate with school authorities in a reasonable
450
manner, a parent or guardian fails to make a good faith effort to ensure that the child receives
451
an appropriate education.
452
(c) A parent or guardian legitimately practicing religious beliefs and who, for that
453
reason, does not provide specified medical treatment for a child, is not guilty of neglect.
454
(d) (i) Notwithstanding Subsection (18)(a), a health care decision made for a child by
455
the child's parent or guardian does not constitute neglect unless the state or other party to the
456
proceeding shows, by clear and convincing evidence, that the health care decision is not
457
reasonable and informed.
458
(ii) Nothing in Subsection (18)(d)(i) may prohibit a parent or guardian from exercising
459
the right to obtain a second health care opinion.
460
(19) "Protective custody," with regard to the division, means the shelter of a child by
461
the division from the time the child is removed from the child's home until the earlier of:
462
(a) the shelter hearing; or
463
(b) the child's return home.
464
(20) "Protective services" means expedited services that are provided:
465
(a) in response to evidence of neglect, abuse, or dependency of a minor;
466
(b) to a cohabitant who is neglecting or abusing a child, in order to:
467
(i) help the cohabitant develop recognition of the cohabitant's duty of care and of the
468
causes of neglect or abuse; and
469
(ii) strengthen the cohabitant's ability to provide safe and acceptable care; and
470
(c) in cases where the child's welfare is endangered:
471
(i) to bring the situation to the attention of the appropriate juvenile court and law
472
enforcement agency;
473
(ii) to cause a protective order to be issued for the protection of the minor, when
474
appropriate; and
475
(iii) to protect the child from the circumstances that endanger the child's welfare
476
including, when appropriate:
477
(A) removal from the child's home;
478
(B) placement in substitute care; and
479
(C) petitioning the court for termination of parental rights.
480
(21) "Services to unwed parents" means social, educational, and medical services
481
arranged for or provided to unwed parents to help them plan for themselves and the unborn
482
child.
483
(22) "Severe neglect" means neglect that causes or threatens to cause serious harm to a
484
minor.
485
(23) "Shelter care" means the temporary care of minors in nonsecure facilities.
486
(24) "State" means:
487
(a) a state of the United States;
488
(b) the District of Columbia;
489
(c) the Commonwealth of Puerto Rico;
490
(d) the Virgin Islands;
491
(e) Guam;
492
(f) the Commonwealth of the Northern Mariana Islands; or
493
(g) a territory or possession administered by the United States.
494
(25) "Severe emotional abuse" means emotional abuse that causes or threatens to cause
495
serious harm to a minor.
496
(26) "Severe physical abuse" means physical abuse that causes or threatens to cause
497
serious harm to a minor.
498
(27) "State plan" means the written description of the programs for children, youth, and
499
family services administered by the division in accordance with federal law.
500
(28) "Status offense" means a violation of the law that would not be a violation but for
501
the age of the offender.
502
(29) "Substantiated" or "substantiation" means a judicial finding based on a
503
preponderance of the evidence that abuse or neglect occurred. Each allegation made or
504
identified in a given case shall be considered separately in determining whether there should be
505
a finding of substantiated.
506
(30) "Substitute care" means:
507
(a) the placement of a minor in a family home, group care facility, or other placement
508
outside the minor's own home, either at the request of a parent or other responsible relative, or
509
upon court order, when it is determined that continuation of care in the child's own home
510
would be contrary to the child's welfare;
511
(b) services provided for a child awaiting placement; and
512
(c) the licensing and supervision of a substitute care facility.
513
(31) "Supported" means a finding by the division based on the evidence available at the
514
completion of an investigation that there is a reasonable basis to conclude that abuse, neglect,
515
or dependency occurred. Each allegation made or identified during the course of the
516
investigation shall be considered separately in determining whether there should be a finding of
517
supported.
518
(32) "Temporary custody," with regard to the division, means the custody of a child in
519
the division from the date of the shelter hearing until disposition.
520
(33) "Transportation services" means travel assistance given to an individual with
521
escort service, if necessary, to and from community facilities and resources as part of a service
522
plan.
523
(34) "Unsubstantiated" means a judicial finding that there is insufficient evidence to
524
conclude that abuse or neglect occurred.
525
(35) "Unsupported" means a finding at the completion of an investigation that there is
526
insufficient evidence to conclude that abuse, neglect, or dependency occurred. However, a
527
finding of unsupported means also that the division worker did not conclude that the allegation
528
was without merit.
529
(36) "Without merit" means a finding at the completion of an investigation by the
530
division, or a judicial finding, that the alleged abuse, neglect, or dependency did not occur, or
531
that the alleged perpetrator was not responsible for the abuse, neglect, or dependency.
532
Section 9.
Section
77-36-1
is amended to read:
533
77-36-1. Definitions.
534
As used in this chapter:
535
(1) "Cohabitant" has the same meaning as in Section
30-6-1
.
536
(2) "Dating violence" is as defined in Section
30-6-1
.
537
[(2)] (3) "Domestic violence" means any criminal offense involving violence or
538
physical harm or threat of violence or physical harm, or any attempt, conspiracy, or solicitation
539
to commit a criminal offense involving violence or physical harm, when committed by one
540
cohabitant against another. "Domestic violence" also means commission or attempt to commit,
541
any of the following offenses by one cohabitant against another:
542
(a) aggravated assault, as described in Section
76-5-103
;
543
(b) assault, as described in Section
76-5-102
;
544
(c) criminal homicide, as described in Section
76-5-201
;
545
(d) harassment, as described in Section
76-5-106
;
546
(e) [telephone] electronic communication harassment, as described in Section
547
76-9-201
;
548
(f) kidnaping, child kidnaping, or aggravated kidnaping, as described in Sections
549
76-5-301
,
76-5-301.1
, and
76-5-302
;
550
(g) mayhem, as described in Section
76-5-105
;
551
(h) sexual offenses, as described in Title 76, Chapter 5, Part 4, and Title 76, Chapter
552
5a;
553
(i) stalking, as described in Section
76-5-106.5
;
554
(j) unlawful detention, as described in Section
76-5-304
;
555
(k) violation of a protective order or ex parte protective order, as described in Section
556
76-5-108
;
557
(l) any offense against property described in Title 76, Chapter 6, Part 1, 2, or 3;
558
(m) possession of a deadly weapon with intent to assault, as described in Section
559
76-10-507
;
560
(n) discharge of a firearm from a vehicle, near a highway, or in the direction of any
561
person, building, or vehicle, as described in Section
76-10-508
;
562
(o) disorderly conduct, as defined in Section
76-9-102
, if a conviction of disorderly
563
conduct is the result of a plea agreement in which the defendant was originally charged with
564
any of the domestic violence offenses otherwise described in this Subsection [(2)] (3).
565
Conviction of disorderly conduct as a domestic violence offense, in the manner described in
566
this Subsection [(2)] (3)(o), does not constitute a misdemeanor crime of domestic violence
567
under 18 U.S.C. Section 921, and is exempt from the provisions of the federal Firearms Act, 18
568
U.S.C. Section 921 et seq.; or
569
(p) child abuse as described in Section
76-5-109.1
.
570
[(3)] (4) "Victim" means:
571
(a) a cohabitant who has been subjected to domestic violence[.]; or
572
(b) a dating partner, as defined in Section
30-6-1
, who has been subjected to dating
573
violence.
574
Section 10.
Section
77-36-2.7
is amended to read:
575
77-36-2.7. Dismissal -- Diversion prohibited -- Plea in abeyance -- Release before
576
trial.
577
(1) Because of the serious nature of domestic violence, the court, in domestic violence
578
actions:
579
(a) may not dismiss any charge or delay disposition because of concurrent divorce or
580
other civil proceedings;
581
(b) may not require proof that either party is seeking a dissolution of marriage before
582
instigation of criminal proceedings;
583
(c) shall waive any requirement that the victim's location be disclosed other than to the
584
defendant's attorney, upon a showing that there is any possibility of further violence, and order
585
the defendant's attorney not to disclose the victim's location to his client;
586
(d) shall identify, on the docket sheets, the criminal actions arising from acts of
587
domestic violence;
588
(e) may dismiss a charge on stipulation of the prosecutor and the victim; and
589
(f) may hold a plea in abeyance, in accordance with the provisions of Chapter 2a,
590
making treatment or any other requirement for the defendant a condition of that status.
591
(2) When the court holds a plea in abeyance in accordance with Subsection (1)(f), the
592
case against a perpetrator of domestic violence may be dismissed only if the perpetrator
593
successfully completes all conditions imposed by the court. If the defendant fails to complete
594
any condition imposed by the court under Subsection (1)(f), the court may accept the
595
defendant's plea.
596
(3) (a) Because of the likelihood of repeated violence directed at those who have been
597
victims of domestic violence in the past, when any defendant charged with a crime involving
598
domestic violence is released from custody before trial, the court authorizing the release may
599
issue an order:
600
(i) enjoining the defendant from threatening to commit or committing acts of domestic
601
violence, dating violence, or abuse against the victim and any designated family or household
602
member;
603
(ii) prohibiting the defendant from harassing, telephoning, contacting, or otherwise
604
communicating with the victim, directly or indirectly;
605
(iii) removing and excluding the defendant from the victim's residence and the
606
premises of the residence;
607
(iv) ordering the defendant to stay away from the residence, school, place of
608
employment of the victim, and the premises of any of these, or any specified place frequented
609
by the victim and any designated family member; and
610
(v) ordering any other relief that the court considers necessary to protect and provide
611
for the safety of the victim and any designated family or household member.
612
(b) Violation of an order issued pursuant to this section is punishable as follows:
613
(i) if the original arrest or subsequent charge filed is a felony, an offense under this
614
section is a third degree felony; and
615
(ii) if the original arrest or subsequent charge filed is a misdemeanor, an offense under
616
this section is a class A misdemeanor.
617
(c) The court shall provide the victim with a certified copy of any order issued pursuant
618
to this section if the victim can be located with reasonable effort.
619
(4) When a court dismisses criminal charges or a prosecutor moves to dismiss charges
620
against a defendant accused of a domestic violence offense, the specific reasons for dismissal
621
shall be recorded in the court file and made a part of the statewide domestic violence network
622
described in Section
30-6-8
.
623
(5) When the privilege of confidential communication between spouses, or the
624
testimonial privilege of spouses is invoked in any criminal proceeding in which a spouse is the
625
victim of an alleged domestic violence offense, the victim shall be considered to be an
626
unavailable witness under the Utah Rules of Evidence.
627
(6) The court may not approve diversion for a perpetrator of domestic violence.
628
Section 11.
Section
77-36-5.1
is amended to read:
629
77-36-5.1. Conditions of probation for person convicted of domestic violence
630
offense.
631
(1) Before any perpetrator who has been convicted of a domestic violence offense may
632
be placed on probation, the court shall consider the safety and protection of the victim and any
633
member of the victim's family or household.
634
(2) The court may condition probation or a plea in abeyance on the perpetrator's
635
compliance with one or more orders of the court which may include, but are not limited to, an
636
order:
637
(a) enjoining the perpetrator from threatening to commit or committing acts of
638
domestic violence or dating violence against the victim or other family or household member;
639
(b) prohibiting the perpetrator from harassing, telephoning, contacting, or otherwise
640
communicating with the victim, directly or indirectly;
641
(c) requiring the perpetrator to stay away from the victim's residence, school, place of
642
employment, and the premises of any of these, or a specified place frequented regularly by the
643
victim or any designated family or household member;
644
(d) prohibiting the perpetrator from possessing or consuming alcohol or controlled
645
substances;
646
(e) prohibiting the perpetrator from purchasing, using, or possessing a firearm or other
647
specified weapon;
648
(f) directing the perpetrator to surrender any weapons that he owns or possesses;
649
(g) directing the perpetrator to participate in and complete, to the satisfaction of the
650
court, a program of intervention for perpetrators, treatment for alcohol or substance abuse, or
651
psychiatric or psychological treatment;
652
(h) directing the perpetrator to pay restitution to the victim; and
653
(i) imposing any other condition necessary to protect the victim and any other
654
designated family or household member or to rehabilitate the perpetrator.
655
(3) The perpetrator is responsible for the costs of any condition of probation, according
656
to his ability to pay.
657
(4) (a) Adult Probation and Parole, or other provider, shall immediately report to the
658
court and notify the victim of any assault by the perpetrator, the perpetrator's failure to comply
659
with any condition imposed by the court, and any threat of harm made by the perpetrator.
660
(b) Notification of the victim under Subsection (4)(a) shall consist of a good faith
661
reasonable effort to provide prompt notification, including mailing a copy of the notification to
662
the last-known address of the victim.
663
Section 12. Effective date.
664
This bill takes effect on September 1, 2006.