Court of Appeals weighs whether post‑sentencing protective order can bar a father’s contact with his children

The Utah Court of Appeals heard oral argument in the appeal of a post‑sentencing continuous protective order that bars a father from communicating with his minor children.

A three‑judge panel — Judge Greg Leorn, Judge Ryan Harris and Judge Mortonson — questioned attorneys for both sides during a hearing in the courtroom that was live‑streamed to the public. Appellant counsel Brian Craig argued the district court exceeded the statute’s plain language and improperly relied on a scrivener’s‑error correction to include "other household members" in a protective order that otherwise refers only to the perpetrator and the victim. "The statute does not include other household members of the victim," Craig said, and he urged the court to be wary of using the scrivener’s‑error doctrine to rewrite legislative text.

The dispute turns largely on statutory interpretation and procedure. Craig told the panel the contested order was a continuous, post‑sentencing protective order with no expiration date, entered four months after sentencing when his client lacked counsel and without a full evidentiary hearing. He contrasted that order with the cohabitant abuse protective‑order statute, which expressly allows other household members but includes a three‑year expiration. Craig said the permanent bar here effectively prevents a parent from writing letters or sending cards to his children and that those consequences require close judicial scrutiny.

State attorney Daniel Day defended the district court’s decision and the use of the scrivener’s‑error doctrine in this instance. Day told the court the legislature later corrected the cross‑reference, which the state reads as confirming the district court’s interpretation, and argued the technical defects were harmless because the defendant promptly obtained counsel and received a hearing. "The district court did not abuse its discretion when it entered a continuous protective order," Day told the panel.

Judges pressed both sides on two central questions: how narrowly the scrivener’s‑error doctrine must be applied, and whether the entry of the protective order without counsel at the moment of issuance deprived the defendant of a critical‑stage right. The panel noted that scrivener’s‑error relief is a high bar that courts apply sparingly, and asked whether the cross‑reference (a single letter, C vs. D) created an unambiguous absurdity that would permit correction by the courts. On counsel and procedure, the judges asked whether the protective order is a collateral consequence of sentencing or an adjunct of sentencing that would carry Sixth Amendment protections.

Appellant argued the order was voidable because the defendant lacked counsel when the order was entered and was denied an opportunity to call and cross‑examine witnesses; the state countered that the record contained guilty‑plea facts, victim statements and other materials that supplied clear and convincing support for the order and that an evidentiary hearing is not categorically required where the record suffices.

In rebuttal, Craig emphasized the criminal context and urged the court to follow precedents that require heightened due‑process protections before a court may impose a lifelong bar on parent‑child contact. The court took the matter under advisement and said it will issue either an opinion or an order in due course. The panel recessed the session until the next sitting at the Math Courthouse.

The case will turn on the panel’s reading of the statutory cross‑reference, the threshold for applying scrivener’s‑error correction, and whether the recorded procedures satisfied the defendant’s rights to notice and an evidentiary process.