New Case Law – Definition of Abuse in a Restraining Order Case

The Oregon Court of Appeals in Martinez and Martinez released an opinion on March 10, 2010 relating to the definition of abuse in a restraining order case.  One of the prima facie elements necessary to obtain a restraining order (FAPA order) is proof that a party has been “a victim of abuse committed by the respondent wihtin 180 days preceding the filing of the petition[.]”  ORS 107.718(1) and ORS 107.710(1).  The court of appeals agreed with the appellant that the trial court was incorrect in finding that respondent committed abuse against petitioner during the 180 days preceding the filing of the petition.

The ruling is not that interesting and is very short.  What is interesting is that the court refused to divulge the facts of the case or the reasoning that went into its ruling.  Instead the court quoted Chief Judge Herbert Schwab as follows:  “The incidents which give rise to child custody litigation are never pleasant, and often sordid.  Such litigation tends to emphasize human weaknesses.  While the published opinion of an appellate court in a custody case is rarely a ‘best seller,’ it is nevertheless a public record which can in later years come to the attention of the children who were the subject of the controversy.”

The entire opinion can be found here:  http://www.publications.ojd.state.or.us/A141745.htm

For a person considering filing a restraining order, it is important to consult with an attorney.

About Daniel Margolin

Daniel Margolin is a founding partner of Stephens & Margolin LLP and a Portland, Oregon native. His practice focuses on all aspects of family law litigation. Dan applies his litigation expertise to provide additional expertise when assisting clients with Family Law Appeals and Collaborative Divorce matters. To find out more or contact Daniel Margolin, visit Stephens & Margolin LLP
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3 Responses to New Case Law – Definition of Abuse in a Restraining Order Case

  1. jennifer says:

    I have an ongoing restraining order against me w an x boyfriend based on the fact i suffer from a bipolar disorder but i have never been arrested for a violent crime or been violent or made violent threats to my x, i did plead no contest to vandalizing his car but there was no concrete evidence of that i didnt want to go through a trial and he threatened to make my 14 yr old daughter testify against me and i didnt want to stick her in the middle even though she refused to testify against me.the restraining order says i abused him i never have he in fact physically and sexually and mentally abused me until i finally got enough courage to leave him, but i never reported him to the police because i was afraid …now he is using the law to keep me away from my daughter what do i do?

  2. jennifer says:

    i’m sorry i should have just said what is the definition of abuse?

  3. This one sounds kind of boring.

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