A petition for child protective order can be brought against any individual who is abusing, has abused, or who places a child in imminent danger of abuse. If granted, the protective order lasts 150 days. Abuse means physical or sexual abuse, but the Utah Code does not define “physical abuse” or “sexual abuse.” If facing a child protective order one should look to Utah’s criminal law regarding child abuse for guidance.
Importantly, Utah law provides a codified justification defense for those facing allegations of child abuse. Specifically, in Utah Code 76-2-401, it is a defense “when the actor’s conduct is reasonable discipline of minors by parents, guardians, teachers, or other persons in loco parentis” but reasonable discipline does not extent to “serious bodily injury” or “serious physical injury.”
“Serious bodily injury” means bodily injury that creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or creates a substantial risk of death.
“Serious physical injury” means any physical injury or set of injuries that:
(A) seriously impairs the child’s health;
(B) involves physical torture;
(C) causes serious emotional harm to the child; or
(D) involves a substantial risk of death to the child.
(ii) “Serious physical injury” includes:
(A) fracture of any bone or bones;
(B) intracranial bleeding, swelling or contusion of the brain, whether caused by blows, shaking, or causing the child’s head to impact with an object or surface;
(C) any burn, including burns inflicted by hot water, or those caused by placing a hot object upon the skin or body of the child;
(D) any injury caused by use of a dangerous weapon as defined in Section 76-1-601;
(E) any combination of two or more physical injuries inflicted by the same person, either at the same time or on different occasions;
(F) any damage to internal organs of the body;
(G) any conduct toward a child that results in severe emotional harm, severe developmental delay or intellectual disability, or severe impairment of the child’s ability to function;
(H) any injury that creates a permanent disfigurement or protracted loss or impairment of the function of a bodily member, limb, or organ;
(I) any conduct that causes a child to cease breathing, even if resuscitation is successful following the conduct; or
(J) any conduct that results in starvation or failure to thrive or malnutrition that jeopardizes the child’s life.
“Child abuse” not only extend to “serious bodily injury” and “serious physical injury” but to simple “physical injury which can be simple bruising, lacerations, malnutrition, and other conditions which imperils the child’s health or welfare.
The justification defense, however, is available where there is only “physical injury.”
In many child protective order cases the petitioner is alleging that the respondent spanked the child leaving a bruise and that should constitute the “abuse” envisioned by Utah’s law on child protective orders. In such situation, the respondent has a justification defense. It is then up to the judge to determine whether the spanking was reasonable or whether it constituted child abuse.
Other child protective order cases involve children who are seriously injured and the injury was obviously caused by much more than spanking. In such cases, the justification defense does not apply. Likewise, the justification defense does not extend to sexual abuse.
If you are a facing child protective order call our Utah defense lawyers at 801.413.1753 for a free consultation.