Anyone who practices Utah family law has watched it happen. A child custody dispute is going badly for one parent, or hasn’t started yet, and a protective order petition appears. The allegations are thin, or shaded, or invented outright. But the petition triggers an ex parte order, the other parent is out of the house and away from the children, and the custody dispute now begins from a position of manufactured advantage. By the time the return hearing arrives, the tactical damage is done. This is the weaponization of protective orders, and it is one of the more corrosive dynamics in the practice.
The 2026 Legislature took it up. Senate Bill 304, the Protective Order Amendments, gives a respondent a statutory tool to establish that a petitioner lied to obtain a protective order, and ties consequences to that finding. The measure of any such reform is simple: does it reach the cases where weaponization actually lives? Those are the contested-credibility cases—the ones where the allegation is disputed, the evidence is a swearing contest, and the truth is genuinely hard to pin down. Measured against that yardstick, SB 304 misses. It is built to punish the provable liar, but it does almost nothing about the far larger problem it was sold to solve.
What SB 304 actually does
Start with the text, because the details do the work.
SB 304 enacts two nearly identical provisions. Section 78B-7-208 (Child Protective Orders) and Section 78B-7-610 (Cohabitant Abuse Protective Orders). Each lets a respondent file a motion alleging that the petitioner “knowingly falsified a material statement or material information for the purpose of obtaining the protective order.” “Material statement or material information” is newly defined at § 78B-7-102(22): a statement or information offered to support an allegation of abuse or domestic violence that could influence the court’s decision to issue the order.
The motion has three features worth keeping: 1) it must be filed within 60 days after the hearing on the petition; 2) the respondent must prove the knowing falsification by clear and convincing evidence; and 3) the court may award attorney fees and costs “to the party that prevails on the motion”—meaning the fee shifting runs both ways, and a respondent who files and loses can be ordered to pay the petitioner.
If the respondent prevails and the parties are the child’s parents, two further consequences attach under the child-protective-order section, 78B-7-208: the court may order up to 20 counseling sessions for the child with a therapist the respondent selects, and the respondent may seek make-up parent-time.
That make-up parent-time remedy is where the citation turns treacherous, and where anyone relying on this statute needs to be careful. SB 304 originally placed it at Subsection 81-9-208(12). It’s no longer there. A coordination clause in a companion bill—SB 257, the Domestic Relations Amendments—directed that “Subsection 81-9-208(12) enacted in S.B. 304 not take effect,” and folded the falsification remedy into a merged Subsection 81-9-208(13), where it now shares space with an unrelated provision on parent-time lost to a Division of Child and Family Services investigation. The operative citation is § 81-9-208(13)(a)(ii). The subsection “(12)” printed in SB 304 is a phantom, legislated out of existence before it ever took effect.
Under § 81-9-208(13)(a)(ii), make-up parent-time is available only where a parent shows that 1) a court determined the other parent knowingly falsified material information in a protective order proceeding as described in Section 78B-7-208 and dismissed the underlying protective order on the merits; 2) the parent lost parent-time as a result of the falsification; and 3) there is no finding of abuse or neglect against the parent. Hold onto the “dismissed on the merits” requirement. It matters later.
None of this is live yet. The falsification sections take effect May 5, 2027. Until then there is no motion to file and no case law to consult.
The order and the lie are two different fights
Now the distinction most commentary on this bill will blur, and that a court will notice immediately if a brief gets it wrong.
SB 304 did not change the standard for issuing a protective order. A cohabitant abuse protective order still issues on a preponderance of the evidence, on the petitioner’s burden, exactly as before. The falsification motion is a separate, optional, downstream proceeding. It does not raise or lower the bar for the order itself, and—critically—it is not the mechanism for defeating the order. A respondent contests the petition the way he always has: by meeting the petitioner’s evidence at the hearing, where the burden rests on the petitioner.
The clear-and-convincing standard in § 78B-7-208 governs only the affirmative claim that the petitioner knowingly lied. That is a fraud allegation, and clear and convincing is the ordinary burden for fraud. So there is no burden “shift” here, and no inversion of the presumption of innocence, whatever the rhetoric around this bill suggests. Getting that right is what separates a serious critique from a sloppy one—and it is also what brings the real problem into view.
The respondent who already litigated and lost
The real problem is this: the falsification remedy is pegged to a standard higher than the one that already defeated the respondent, and it asks him to prove it on the same record.
Consider the respondent who actually put on a defense to a request for a protective order. He did not simply deny the allegations made against him. He showed the absence of corroboration, the implausibility of the account, the internal contradictions, the exculpatory facts. That material was already weighed—at a preponderance standard—and the court resolved it against him when it issued the order. To win a falsification motion, he must now take that same body of evidence and use it to prove, to a near-certainty, that the petitioner did not merely fail to persuade but knowingly lied. The court has already declined to disbelieve the petitioner at the lower standard. Nothing about the record has changed. Only the bar has gone up.
Split the two outcomes, because the remedy behaves differently in each.
Where the protective order was granted, the falsification motion is close to unwinnable. The court has already made an affirmative credibility finding for the petitioner; a motion asking the same judge/commissioner—or a colleague inheriting the same record—to rebrand that petitioner a knowing perjurer starts in a hole. And even where the respondent somehow prevails on falsification, the make-up parent-time remedy remains unavailable, because § 81-9-208(13)(a)(ii)(A) requires that the protective order have been “dismissed on the merits,” which by definition did not happen when it was granted. The remedy is doubly dead: near-impossible to win, and hollow if won.
Where the order was denied or dismissed, the motion is more plausible—but name the gap honestly, because opposing counsel will. Failing to meet a preponderance standard is not a finding that anyone lied. A petitioner can lose because the evidence was thin, because she was honestly mistaken, or because she exaggerated without knowingly falsifying anything material. Dismissal for insufficiency is not fabrication. The respondent who won still has to climb from “not proven” all the way to “knowingly false, to a near-certainty.”
So who actually wins?
Only the respondent whose proof of fabrication transcends the credibility contest entirely—a recantation, an allegation shown to be physically impossible by travel or surveillance records, a documentary contradiction the petitioner plainly knew about, a prior inconsistent sworn statement. The common thread is that the proof is either newly discovered or so incontrovertible that it does not turn on whom the judge chose to believe.
That is precisely not the case the reform was sold to fix. The parent who argued implausibility and lost has nothing new and has already lost the credibility fight. He is the paradigmatic person this statute cannot help—and he is the most common respondent in a weaponized protective order case.
A fix for the rare case, not the common one
So the mismatch comes into focus. SB 304 reaches the narrow set of cases involving provable, documentable perjury. It does nothing for the systemic problem of weaponization, which lives almost entirely in the contested-credibility cases where clear and convincing evidence of knowing falsity will never be assembled. The Legislature marketed a fix for tactical protective orders and delivered a fix for the occasional provable liar. The two are not the same, and the distance between them is not a matter of speculation about anyone’s psychology. It is visible in the statute’s own architecture.
The remedy is bolted to the wrong protective order
That architecture has one more feature that turns a general critique into a concrete failure. The make-up parent-time remedy—the only consequence that actually restores what a weaponized order takes—attaches to the wrong section.
Subsection 81-9-208(13)(a)(ii)(A) triggers only on a falsification finding “as described in Section 78B-7-208.” That is the Child Protective Orders section, in Part 2. The cohabitant abuse section, 78B-7-610, in Part 6, contains no counseling provision and no parent-time pathway, and it is nowhere cross-referenced in § 81-9-208(13). A respondent who proves that a petitioner fabricated a cohabitant abuse protective order can recover fees under 78B-7-610(4). He cannot recover his lost parent-time.
That is backwards. The parent-against-parent cohabitant abuse protective order is the ordinary vehicle for custody leverage between parents. The child protective order is rarer in the weaponization scenario. The Legislature attached its signature remedy to the less common track and left the common one with nothing but a discretionary fee award. Whether that is a deliberate line or a drafting oversight, it guts the remedy for the exact fact pattern the bill was written to address.
The remedy’s drafting reinforces the impression of something assembled without much care. Its originating subsection, § 81-9-208(12), was legislated out of existence before it took effect and relocated by coordination clause into a merged (13) shared with an unrelated DCFS provision. And note one asymmetry inside that merged subsection: the discretionary safety valve at § 81-9-208(13)(b)—under which a court “may deny” make-up parent-time for lack of diligence or for good cause—applies by its terms only to the DCFS-investigation prong at (13)(a)(i). It does not reach the falsification prong at (13)(a)(ii). So the falsification make-up parent-time award, in the rare case it is ever triggered, is strictly mandatory. The provision is close to impossible to invoke and automatic once invoked—an odd design for a remedy meant to do practical work.
The standard is not the problem
The strongest defense of the bill deserves a fair statement. Clear and convincing evidence may be the correct standard, not a defect. A finding that a person knowingly committed perjury is a grave one, with real consequences for the accused petitioner, and fraud carries a clear-and-convincing burden nearly everywhere in the law. A lower standard for branding a protective order petitioner a liar would carry its own dangers, including chilling legitimate victims from coming forward. On its own terms, the burden is defensible.
Concede that, and the critique gets stronger, not weaker. The problem was never the standard in isolation. The problem is the distance between what SB 304 was sold as—a check on weaponization—and what it can actually reach. A demanding standard is appropriate for a perjury finding. It is a poor fit for a remedy pitched as the answer to a systemic litigation problem, because it guarantees the remedy will reach almost none of the cases that make up that problem.
Cover, and what comes next
One further observation, offered as speculation rather than as anything provable. No judge deciding whether to issue an ex partee order is weighing a falsification motion that cannot be filed until after a hearing that has not yet occurred; the courtroom mechanics do not run that way. But at the institutional level, a statute like this can function as cover. The Legislature and the system can now point to a safeguard against fabricated orders, whether or not that safeguard ever operates. The counterpoint is that the cover is thin—a remedy this visibly hard to invoke is one that reviewing courts, and eventually the bar, can see through. It is worth watching whether SB 304 gets cited as evidence that the fabrication problem has been solved. It has not been.
The instinct behind the bill was sound. Fabricated protective orders are real, and a parent who loses time with his children to a proven lie should have a way to get it back. But the statute that emerged reaches the rare case and misses the common one, ties its only meaningful remedy to the wrong Part of the code, and buries that remedy in a renumbered subsection its own originating bill disclaimed.
There is still time to fix it. Nothing here takes effect until May 5, 2027. Two changes would close most of the gap. First, cross-reference 78B-7-610 in § 81-9-208(13)—or add a parallel parent-time pathway to the cohabitant section—so the remedy reaches the protective orders that are actually weaponized in custody litigation. Second, reconsider whether a civil parent-time restoration should be gated behind a near-criminal finding of knowing falsity proven to clear and convincing certainty, or whether a lower, purpose-built standard for restoring wrongly denied parent-time would do more good without inviting abuse. Either way, the Legislature has fifteen months to make the fix before the first respondent discovers, the hard way, that the tool he was promised does not reach his case.
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