Restraining Order Cases in Bend, OR
Understanding FAPA Restraining Orders in Oregon
A Restraining Order in Oregon is a court order issued under the Family Abuse Prevention Act (“FAPA”) that tells a person who is causing you “abuse,” called the “Respondent” to leave you and/or your children alone. In order to be eligible for a FAPA Restraining Order in Oregon, the Respondent must be a spouse or former spouse; an adult related by blood, marriage or adoption; someone with whom you have or are currently living; someone whom you have been involved in a sexually intimate relationship within the last two years; or the other parent of a joint minor child.
When Can a Minor Ask for a FAPA Restraining Order?
A minor child may ask for FAPA Restraining Order if either he or she is the spouse or former spouse of the Respondent or if he or she has been in a sexually intimate relationship with the Respondent and the Respondent is 18 years of age or older.
What is Defined as "Abuse"?
“Abuse” is defined under FAPA as causing you bodily injury, placing you in fear of bodily injury, or causing you to engage in involuntary sexual relations by force or threat of force. The abuse must have occurred in the last 180 days.
What Power Does a FAPA Restraining Order Have?
The FAPA Restraining Order can tell the Respondent to move from a home you share and can, in some circumstances, make provisions for temporary custody and parenting time of your children to assure their safety.
A FAPA Restraining Order can also require the Respondent to stay away from you or your child’s home, school, or place of employment. You can also request that the court add other provisions that you think will help you and your children stay safe or to provide for your care. You also can ask the court to include an order that says the Respondent cannot have guns. The court could also order that a police officer “stand-by” for a few minutes while you or the Respondent remove essential personal items from your home (if he or she has been ordered to leave).
A FAPA Restraining Order can only deal with custody and parenting time issues temporarily. To get “permanent” custody and parenting time orders, you need to a file a family law case, such as a divorce or a custody case.
How Can I Get a Restraining Order?
To obtain a Restraining Order in Oregon under the Family Abuse Prevention Act (FAPA), you must file a form, called a “Petition” with the court in the county in which you or the alleged abuser lives. There is no cost to file the Petition.
After you file the Petition, the Court will schedule a hearing in which you appear (the alleged abuser is not required to attend) and you answer questions from the judge about why you believe you need a FAPA Restraining Order. If the judge believes you have alleged enough, the court will issue the FAPA Restraining Order on a temporary basis and the alleged abuser is served with it.
What Proof Do You Need for a Restraining Order?
If the alleged abuser challenges the FAPA Restraining Order, the court sets a hearing in which you must prove all the elements necessary to obtain the restraining order. You must prove that you were a victim of abuse within the last 180 days, you are in imminent danger of further abuse, and the alleged abuser presents a credible threat to you or your children’s safety. If the court determines that you have proven these elements, the Restraining Order is continued; if not, the Restraining Order is dismissed.
Once you obtain a Restraining Order, it is good for one year. You may renew the restraining order before the expiration of the first year if you can prove that someone in your situation would reasonably fear further acts of abuse without renewal.
Violation of Restraining Order Oregon
If you have been served with a Restraining Order in Oregon under the Family Abuse Prevention Act (FAPA) you must act quickly. After you have been served with a FAPA Restraining Order, it and all its terms, are effective against and you could be arrested and charged with a crime if you violate its terms. You are entitled to a hearing in order to challenge the Restraining Order, or any of its terms, if you file an “Objection and request for Hearing” (Response) within 30 days of being served. There is no cost to file your Response.
If you file a Response, the hearing must be held within 21 days after the court receives it. If temporary child custody is an issue, the hearing must be held within 5 days after your Response is filed. In addition, if there are exceptional circumstances that would affect custody of your children, either party can request that the hearing take place within 14 days.
At the hearing, the parties present evidence regarding whether or not the elements of a FAPA Restraining Order have been proven. If the court determines the elements have been proven, the Restraining Order is continued; if the court finds that the elements have not been proven, the Restraining Order is dismissed. The court has discretion to award the prevailing party with their reasonable attorney fees and/or costs.
Is a Restraining Order a Felony in Oregon?
This depends entirely on the number of restraining orders someone has violated and to what degree. The restraining order itself is not a felony charge, but a warning to stay away or further consequences will occur.
Your first violation will likely result in a Class A misdemeanor charge which carries a maximum sentence of one year in prison and a fine of $6250.
If you have previously violated the order or you have been convicted of stalking, the violation will be considered a Class C felony, carrying a potential sentence of up to 5 years in prison and fines of up to $125,000.
If a restraining order is issued under false pretenses or you disagree with it, you still have to follow it until the court vacates it. You must obey it even if it's wrong, otherwise you'll be prosecuted.
Stalking Orders in Oregon
A Stalking Order in Oregon, often called a Stalking Protective Order or SPO, is much like a FAPA Restraining Order in that it is a court order that tells a person, called the “Respondent” to leave another person, called the “Petitioner,” alone.
An individual may obtain a Stalking Order when he or she is subjected to repeated and unwanted contact that coerces them or causes them reasonable apprehension regarding their personal safety. Unlike a FAPA Restraining Order, no underlying family or household relationship between the Petitioner and the Respondent is required. A Stalking Order more easily protects minors but unlike a FAPA Restraining Order, cannot address family matters such as custody or parenting time. A stalking protective order entered against a Respondent disqualifies him or her from receiving a license to carry a concealed handgun and is also cause to revoke such a license.
How do I get a Stalking Order in Oregon?
In Oregon, a Stalking Order or Stalking Protective Order (SPO) may be obtained in two ways. First, a person may file a request with local law enforcement asking that a law enforcement officer issue a citation. Second, a person may also file a Petition, much like in a FAPA Restraining Order, with a county court in which one of the parties lives. Under either method, what a person must allege and prove is the same. When a person seeks a Stalking Order via the filing of a Petition, they may also, in some circumstances, seek monetary damages. There is no cost to file a Petition for a Stalking Order unless monetary damages are sought.
The Process Explained by Our Bend Family Lawyer
The process for obtaining a Stalking Order can vary from county to county but generally, a person seeking a Stalking Order files a Petition in the morning and then attends a small hearing later that same afternoon (or the next afternoon) wherein they answer questions from the judge about why they believe they need a Stalking Order. If the court determines the person has alleged sufficient facts if proven true, the court issues the stalking order on a temporary basis and the Respondent is then served with the Stalking Order as well as an order to appear at a date and time set by the court, usually called the “initial appearance.” At the initial appearance, the Respondent informs the court whether they object to the Stalking Order and if so, the court sets a hearing.
At the hearing, the court will hear the parties’ evidence, including the testimony of witnesses, and determine if the elements of a Stalking Order have been proven. If the elements of a Stalking Order are sufficiently proven, the Stalking Order is continued. If however, the court determines that the elements of a Stalking Order have not been proven, the Stalking Order is dismissed. The court has discretion to award the prevailing party with their reasonable attorney fees and/or costs.
What if I have been Served with a Stalking Order in Oregon?
If you have been served with a Stalking Order or Stalking Protective Order (SPO) in Oregon, you have also probably been served with an order to appear at a certain date and time, called an “order to show cause.” This order is called a “order to show cause” because you are directed to appear at the appointed time and “show cause” why the temporary stalking order should not be continued. If you have been served with a stalking order, it is imperative that you, or someone on your behalf, appear at the date and time indicated or the stalking order will be continued against you and could be permanent.
This can be a complicated area of the law. For more information, please contact a Bend restraining order lawyer at Baxter Harder, LLC.
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