Background
Esther Canteros-Alvarez sought a protective order against her older sister, Lupita Angel Green, under Utah’s Cohabitant Abuse Act, Utah Code § 78B-7-602. The sisters qualified as cohabitants under the Act because they had grown up in the same household. Their dispute stemmed from a layered family conflict: Green harbored intense hostility toward Canteros-Alvarez’s husband (who had been driving a car Green owned), and Green had filed a guardianship petition seeking custody of Canteros-Alvarez’s son, whom she believed was in an unsafe home.
On July 20, 2024, the conflict boiled over in a heated phone call and text exchange. In one of the texts, Green wrote: “I am pissed off. I pray to God that you swing first so that I can beat the shit out of you. I wish I could go back in time and punch you in the face because that’s the only way that I might have been able to save you.” Shortly before the guardianship hearing on September 4, Green confronted Canteros-Alvarez at court and later that day called police to perform a welfare check on Canteros-Alvarez’s son (officers found no problem) and filed a DCFS complaint (investigators found conditions were “perfectly fine”). On September 6, Canteros-Alvarez petitioned for a protective order, citing the July 20 text, the courthouse confrontation, the police call, and the DCFS report.
A district court commissioner heard the matter on September 24. At the hearing, Canteros-Alvarez conceded that only the July 20 text supported a threat of physical harm. The commissioner characterized the text as “a close call” that crossed “the line” “by the narrowest of margins,” finding that it would cause “somebody to have fear of physical harm.” The district court adopted the recommendation and issued the protective order. Green did not object to the recommendation before the commissioner but filed a direct appeal.
The Court’s Holding
The Utah Court of Appeals vacated the protective order unanimously. Writing for the court, Judge Tenney held that the July 20 text did not satisfy the Act’s requirement of “reasonable fear of imminent physical harm.” Utah Code § 78B-7-102(1) defines “abuse” as intentionally or knowingly placing another in reasonable fear of imminent physical harm. The court read that term consistent with the Utah Supreme Court’s definition in State v. Clara, 2024 UT 10: an “immediate, real threat to one’s safety” that is “impending” and “about to occur at any moment.”
Four features of the text defeated imminence. First, Green never said she would hit Canteros-Alvarez—only that she wished she could or hoped to. Second, and most importantly, the statement was explicitly conditional: Green said she prayed Canteros-Alvarez would “swing first” so Green could retaliate. A threat contingent on an event that had not occurred and might never occur is not a threat of impending harm. Third, the text was sent while the two were physically apart, making it analogous to the phone-call threat in State v. Berriel, 2013 UT 19, where the Utah Supreme Court held that a threat of violence communicated by phone did not establish imminence at the later site of the defendant’s confrontation. Fourth, neither the commissioner nor the record reflected any history of physical violence between the sisters—the commissioner himself observed that the conflict was fundamentally about the guardianship dispute and Green’s view of Canteros-Alvarez as a parent. The court also confirmed, consistent with Mota v. Mota, 2016 UT App 201, that Green’s failure to object before the commissioner did not waive her right to appeal.
Key Takeaways
- A conditional threat—a statement that the respondent will harm the petitioner only if the petitioner strikes first—does not establish the “imminent physical harm” required for a protective order under Utah’s Cohabitant Abuse Act, because the threatened violence depends on a future event that may not occur.
- “Imminent” means immediate, impending, and about to occur at any moment; an angry text sent while the parties are physically distant does not satisfy that standard even if the language is violent in tone.
- The absence of any history of physical violence between the parties is a relevant contextual factor in assessing whether a petitioner’s fear of imminent harm is objectively reasonable.
- Under Rule 108 of the Utah Rules of Civil Procedure, a party is not required to object to a commissioner’s recommendation as a prerequisite to appeal.
Why It Matters
Protective order litigation under the Cohabitant Abuse Act is among the most common proceedings in Utah family courts. Canteros-Alvarez v. Green draws a clear line between family conflict—however acrimonious—and the kind of threat that warrants a protective order. A conditional willingness to fight, expressed by text from a distance and without any prior physical altercation, is not enough. The commissioner’s “narrowest of margins” framing underscored how fact-intensive these cases are, but the appellate court’s reversal signals that courts must take the imminence element seriously and not treat angry rhetoric as a sufficient proxy for a real, immediate threat.
For petitioners’ counsel, the case reinforces that a protective order requires more than proof of a hostile relationship or unpleasant texts. Counsel should build the record around proximity, context, history of physical violence, and the unconditional nature of the threat. For respondents seeking to challenge orders on appeal, the opinion provides a useful analytical framework: parse the specific language of the alleged threat, show its conditional or past-tense character, note the absence of a history of violence, and invoke the imminence cases from Berriel and State v. Farmer, 2025 UT App 57.