New Case Law: Restraining orders, easy to get, but harder to keep?

Oregon’s “Family Abuse Prevention Act” protects victims of domestic violence and allows victims of recent abuse to obtain protection from an abuser. ORS 107.700 et seq. While this is a necessary and valuable statute, it is also frequently misused as a custody tool, as obtaining a Family Abuse Prevention Act Order (FAPA order, or restraining order) against someone seriously impacts an alleged abuser’s claim for sole custody of children. Restraining orders are easy to obtain, as the initial application is done without notice to the opposing party. At the hearing to determine if a restraining order will continue, my experience has been that many circuit courts, out of an abundance of caution, tend to uphold restraining orders.

The Oregon Court of Appeals is a harder place to win a restraining order case. On November 28, 2007 the Oregon Court of Appeals reversed a trial court’s upholding of a restraining order in Baker v. Baker, ____ Or App ____ (2007). In the Baker case, the parties obtained mutual restraining orders against each other. Each party testified to a different version of events on the day of the incident that resulted in dueling restraining orders. The facts were ugly, and involved a pellet gun, a dog, and being dragged by the hair. Unfortunately for the petitioner, the testimony did not involve being threatened, or a fear of that the abuse would re-occur. The trial court upheld both restraining orders. The order upholding the dueling restraining orders issued by the court after hearing correctly identified the statutory test. To obtain a FAPA restraining order, the petitioner must show that he or she:

“has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition, that there is an imminent danger of further abuse to the petitioner and that the respondent represents a credible threat to the physical safety of the petitioner * * *[.]”

“Abuse” is defined in ORS 107.705(1):

“(a) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury.

“(b) Intentionally, knowingly or recklessly placing another in fear of imminent bodily injury.

“(c) Causing another to engage in involuntary sexual relations by force or threat of force.”

ORS 107.718(1)

The trial court erroneously upheld the restraining order without meeting all of the above elements. There was no testimony that the respondent had threatened petitioner. There was additionally no evidence that the petitioner feared a repeat of the incident, as required by ORS 107.718(1). The appellate court, finding error, reversed and vacated Petitioner’s restraining order.

The moral of the story is when faced with keeping or defending a restraining order, you need a lawyer that knows the appropriate statutory test. With the same facts, a different (better) series of questions by Petitioner’s lawyer could have potentially made the restraining order bulletproof in the eyes of the Oregon Court of Appeals. Also, quick analysis by defense counsel could have resulted (correctly, based on the testimony) in the restraining order being denied at the trial court level.

About Sean Stephens

By Sean Stephens Google + Sean Stephens is divorce and family law lawyer, and a founding member of Stephens & Margolin LLP He was born in Eugene, Oregon and is a fourth generation Oregonian. Sean Stephens attended the University of Oregon, and graduated in with a Bachelor of Science in Psychology, with a minor in English Literature. His psychology studies emphasized early childhood development. You can find more about Sean Stephens at Stephens & Margolin LLP Follow him
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5 Responses to New Case Law: Restraining orders, easy to get, but harder to keep?

  1. It sounds like the law makers got this one right.

  2. …restraining orders are designed to protect somene who has ‘reasonable fear’ of another person. Once the fear has subsided, then there is no longer need for the restraining order.

  3. Terri Nordahl says:

    I have filed restraining orders against my now “ex-husband”. Each time the fear subsided, he felt comfortable enough to begin the abuse all over again. And here I am again, preparing to file yet another restraining order. If the fear is eminent enough to file a restraining order, that fear should remain prominent & the restraining order should NEVER lapse. I’m once again fearing for my life & my 11 yr old daughter is caught in the middle. And I hate that. They love each other but he tends to buy her off. He has never physically hurt her, but emotionally! He has hurt her so terribly. Crying herself to sleep. Not understanding “why”. None of which would have happened if I never would have let the restraining order lapse.

  4. Christy Santos says:

    I believe the lawmakers are accurate. What was one do when they have been the victim of a fraudulently filed and served R.O.? My character, and ability to be employed and obtain housing have been grievously injured now for five years.

    • Sean Stephens says:

      Judges expect people to challenge restraining orders issued without merit so they can remove them. The best time to put on an effective challenge is right after the order is issued. Getting an attorney involved for the challenge can be a very good investment.

      Sean Stephens

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