This post is the second in our series on Oregon’s “Family Abuse Prevention Act” restraining orders. The first post was on who is eligible to get a restraining order. See previous post here. This post is about what you have to show to have the court issue a restraining order.
There is a lot of misinformation about what you have to prove to get a restraining order. The goal of this post is to clear up some common misconceptions. So, what do you have to show to get a restraining order? A petitioner requesting a FAPA restraining order must show that:
- He or she has been the victim of an incident of abuse within the preceding 180 days
- The or she is in imminent danger of further abuse, and
- The respondent presents a credible threat to the physical safety of the petitioner or the petitioner’s minor child.
Abuse: A showing of “abuse” is required. OK, so what is “abuse”? Abuse is NOT being threatened with legal action. Abuse is not rudeness or abruptness. Abuse is not “he said she would file a modification motion to get custody.” Abuse IS any of the following in the previous 180 days:
(1) Attempting to cause or intentionally, knowingly, or recklessly causing bodily injury;
(2) Intentionally, knowingly, or recklessly placing another in fear of imminent bodily injury; or
(3) Causing another to engage in involuntary sexual relations by force or threat of force.
Within the last 180 days: The incident of abuse has to have happened in the last 180 days. Something that happened 3 years ago is not grounds for a restraining order. There are exceptions to the 180 day rule the respondent is incarcerated or has lived more than 100 miles away during the preceding 180 days.
Imminent Danger of Further Abuse: If there is no danger of further abuse, the court should not issue a restraining order. There has to be some reason that “abuse”, as defined above, is likely to happen again.
Credible Threat to Safety of Petitioner or Petitioner’s Child: The party requesting the restraining order must show that the other party represents a credible threat to their safety. You may have a credibilty problem if you are 6 feet tall and weigh 210 and your spouse is petite and has no history or thereat of weapon use.
The petition must specifically allege the nature of the abuse and the date(s) of the abuse.
The court grants or denies restraining orders at ex parte, a short hearing with only the applicant present. Sometimes the court asks the applicant questions. The court will then make an initial finding about the above points and issue or deny the restraining order.
If you are considering getting a restraining order, you should talk to an experienced family law lawyer.