Family Abuse Prevention Act

This booklet tells you how to get a restraining order if you are abused or threatened by abuse.  A restraining order is an order from the court that tells your attacker to stop the abuse and to leave you alone.  It is not an absolute guarantee of physical protection, but it gives additional rights to victims of abuse.  The police must arrest a person who violates any part of a restraining order.  This means that you can have your attacker arrested before he actually assaults you.  This sends a clear message to your attacker that you are not going to put up with abuse anymore.

(In this booklet, the attacker or restraining order respondent is referred to as "he" or "him" because most domestic violence is perpetrated by men against women.  The restraining order law may also be used by men as protection against abusive women, and by men and women in same sex relationships.) No one has the right to injure or threaten you.  It is a CRIME, whether the attacker is your spouse, partner, friend, stranger, or adult child.

  Do I need a restraining order in order to get the police to help me?

Not necessarily.  Even if you do not have a restraining order, the police must make an arrest if they believe that you have been attacked or placed in fear of serious bodily injury by:

• Someone you are married to;
• Someone you used to be married to;
• Adult in-laws and relatives; and
• Someone you live with, or used to live with, who is of the opposite sex.

Even if your attacker is not arrested, you should consider asking your District Attorney to file criminal charges against him.

Note:  If your attacker is a same-sex lover, you are not covered by the law that requires special police protection without a restraining order.  But in this situation, you can get a restraining order if you have had a sexual relationship with the attacker during the past two years, or are living together now or have lived together in the past as lovers.  Once you have a restraining order, the police or sheriff must arrest your attacker if the order is violated.

What will a restraining order do for me? 

A restraining order can:

1.  Require that your attacker not molest, intimidate, interfere with or menace you;

2.  Require your attacker to stay out of (or a specific distance away from) your home, job, school or any other place if such a restriction is necessary to keep him from abusing you;

3.  Require your attacker to move out of your house, if the home is owned or rented by you and the attacker together or by you alone, or if you are married to the attacker;

4.  Require a police officer to go with you to your home (or with your attacker if he has been ordered to leave) to "stand-by" during the removal of necessary personal things for yourself (or him) and the children, such as clothing, diapers, medications, social security cards, birth certificates and identification;

5.  Give temporary custody of the children to you or your attacker;

6.  Require a police officer to assist you in recovering the custody of your child, if the restraining order awarded you custody; and

7.  Require that your attacker not molest, intimidate, interfere with, or menace the children in your custody;

8.  Give appropriate visitation; if any, to the parent who did not get custody; and

9.  Order other measures called for in your particular case to protect you and your children, such as forbidding the attacker to carry firearms.

Who can get a restraining order?

You can get a restraining order if you are the victim of abuse.  The law defines abuse as your attacker having:

1.  Physically abused you or even attempted  to physically abuse you;

2.  Made you reasonably afraid that you  could be seriously injured physically very  soon; or

3.  Made you have sexual relations against  your wishes by using force or threats of  force.

You can file the petition in either the county where you are now living or the county where the attacker is now living.

You must file your petition within six months of the abuse.  But you can add additional days to this six month period for any time the attacker was in jail or was living more than 100 miles away from you.

Verbal and emotional abuse is very painful and no one deserves that treatment.  But the law has a clear definition of abuse.  Verbal threats must meet the standard described above (putting you in fear of serious bodily injury in the near future.)

Whom can I get a restraining order against?

You can get one against:

1.  Someone you are married to;

2.  Someone you used to be married to;

3.  Adult in-laws and adult relatives  (including adults related by adoption);

4.  A lover you live with or used to live with (of the same or opposite sex);

5.  A person who was your lover (of the  same or opposite sex) during the last 24  months;

6.  The other parent of your minor child.

If you are under 18, you can get a restraining order against a person who is at least 18 (1) with whom you are or were married to or (2) with whom you have had a sexual relationship.  Some judges may require you to file your request in the name of a parent or other adult.

Can I get custody of my children through a restraining order against their father if the children are living with him? 

If you want to get custody of your children and they are now living with your attacker, you may need a lawyer to help you.  If you have fled the family home because of violence and were unable to take the children with you for safety reasons, explain this in your court papers.

If the children have been living with the other parent for some time, but are in serious danger of attack, you may be able to get custody through the restraining order process even though the children do not live with you.  You may need to go to court with, or have help from, a caseworker from the State Office for Children and Family Services in this situation.  You should also talk to a lawyer first, if possible.  The judge should order a peace officer to assist you in recovering the custody of your child if you need this help in a case where the restraining order gives you custody.

What if my attacker is not legally established as my child's father?  Can I still ask for custody? 

These are difficult issues and you may want to talk with an attorney.  Judges differ on their response to this situation.  Some judges grant custody (and visitation) in restraining orders when your papers state that your attacker is the father.  But most judges will not recognize your attacker as the legal father or give him any legal rights until he establishes paternity in the way the law sets out.  With these judges, he would not get visitation.  And because he is not a legal father, you would probably not get a custody order against him in this restraining order case.

Be aware that whatever you put in your restraining order papers about paternity (or anything else) could be used as evidence in another court case where those same issues are involved.

How do I get a restraining order?

You can get the forms to request the restraining order from the domestic court clerk at the  courthouse.  You may also be able to get the forms from a domestic violence shelter or crisis service.  Whoever gives you the forms can tell you how to get the forms to the judge, but they cannot give you legal advice unless they are attorneys.

You do not have to put your home address or phone number on the forms.  You may keep this information confidential.  But you must give a contact address in Oregon and phone number, and check frequently with these contacts, so that you can be notified of court proceedings.

It is a good idea to keep your copy of the restraining order with you at all times.  You may also want to provide a copy to your child's school or day care provider if custody has been an issue, or to your neighbors if your abuser has been ordered to stay away from your home.

How much will it cost?

It is completely free.  There is no charge for filing papers, having the sheriff deliver a copy to your attacker in Oregon, or for any court hearing.

Do I need a lawyer?

No, not to get a restraining order.  The law has been designed so that you can get a restraining order without a lawyer by reading these instructions and filling out the forms.

However, if your attacker challenges your having custody of the children, there will be a custody hearing within 5 workdays of his request.  You may want to obtain a lawyer for this.  If your attacker opposes any other part of the order, the hearing should be set within 3 weeks of his request.  Again, an attorney may be a good idea if a hearing is set.

If you do not know a lawyer, you can call the Oregon State Bar (toll free) at 1-800-452-7636 for a referral to a lawyer in your area.  If you cannot afford a lawyer, call your local legal services office.  You do not have to have a lawyer but it is probably better if you do.

How long will it take to get a restraining order and when is it effective?

After you fill out the papers and give them to the court, your order will be signed by a judge often the same day, but sometimes the next.  If you live in a remote area where a judge is not available in person every day, this may be done by telephone.  Many courts have special times and procedures for getting a restraining order.  You should check with the family court clerk or shelter in your county.  Make sure that when the order is signed, you get from that clerk two "certified" copies of the restraining order.  You will need one for yourself, and you may need an extra.

The restraining order is valid and in force when signed by the judge.  But your attacker will not be arrested for violating it until he has been served (given) a copy.  If you have problems with your attacker after the judge signs the restraining order and before it is served, you should call the police and then give them your official copy of the restraining order.  They will enforce it and, under some circumstances, even serve your copies on the attacker, but they will not arrest him for violating it if he hasn't been served before.

How is a restraining order served?

To be protected by a restraining order, you must have the legal papers "served", delivered to your attacker in person.  This is usually done by the sheriff, but can be done by a friend.  You cannot serve restraining order papers yourself.  If your friend serves your attacker, you must file an affidavit with the court, signed by the person serving the papers, to prove that your abuser has been served.

If at all possible, have the sheriff serve the papers.  The court clerk will deliver the papers to the sheriff.  After a day or two, call the sheriff to find out when the papers were served on your attacker.

Make sure the restraining order is put on the state-wide police computer.  Call the sheriff or police department and keep calling until you know your order has been listed.  You will need to tell them the case number and the name of your attacker.

If the sheriff cannot deliver the papers within 10 days, you will be notified, but you can have a friend deliver the papers to your attacker instead.  You can also have the city police serve the restraining order papers if you call them for help and give them an official (certified) copy of the papers, and if the attacker is there when they arrive in response to your call.

Can a friend serve the restraining order papers?

Yes.  Your friend must be at least 18 and a resident of Oregon.  You cannot deliver the papers yourself.  Your friend must personally hand the papers to your attacker.  Your friend can deliver the papers on any day at any time.  It is not a problem if your attacker will not take them, throws them back, tears them up, or never reads them.  If he will not take them, the papers should be left on the ground in front of him.

Your friend will have to fill out an "Affidavit of Proof of Service" and sign it in front of a notary.  Make two copies of this and take the original to the clerk to be filed.  One copy is for your file.  The clerk will "certify" the other copy.

Take the second copy, along with one copy of the "Petition" and "Restraining Order." to your county sheriff's office.  Ask them to put your papers on the state-wide police computer.

How long will the restraining order last?

In most cases, one year.  You can renew your restraining order for another year without having been abused again.  But you must show that it would be reasonable for a person in your situation to be fearful of abuse if the restraining order were not renewed.  You must ask the clerk for the papers and file them with the court before the first year is up.  At any time in the future, you can go through the process again if you meet the requirements explained earlier in this brochure.

Be aware that any final decision in a divorce or custody suit will have priority over what an earlier restraining order says, if the two orders are in conflict.

In most counties, you can dismiss the restraining order at any time by filing a notarized paper with the court.  In some counties, the judge will not dismiss the restraining order--even if you request this--if the order was very recent or if there has been an arrest or violation of the order.

What happens if my attacker opposes the order?  Can the judge change the order?

Your attacker can oppose the restraining order itself by saying, for example, that the abuse didn't take place.  He can also oppose anything the judge has ordered, such as custody and visitation of the children or the requirement that he move.  To challenge the order, he must fill out and file with the clerk a form he was given with the restraining order papers.  The clerk will set a hearing date and inform you of the date.  Your attacker has only 30 days from when he got the papers to tell the court he opposes the restraining order.  After 30 days have passed, he can ask for changes only in custody or visitation terms.  He cannot try to argue then that he never abused you in the first place.

At the hearing, a judge will decide if the order should be continued, canceled or changed.  You should be ready to present evidence of the abuse, most likely your own testimony, testimony of witnesses, and other evidence you may have to present to the judge (such as photographs).  If you sought custody in your restraining order petition and the respondent is contesting custody, you should be prepared to show the judge that it is best for the child(ren) for you to keep custody.  To make a decision, the judge is interested in establishing who has been the primary caretaker for the child(ren).  In addition to your own testimony, you should have available the testimony of other witnesses who can assist the judge in determining who should be awarded temporary custody.  The judge will also consider many other factors, such as home environments, drug or alcohol use, and risk to the children.  Your attacker may not request a mutual restraining order at this time.  Until the hearing take place, the order is in effect and can be enforced.

Whether or not your attacker has requested a hearing within those first 30 days, you or he can ask the court to change the custody or visitation parts of the order at any time the restraining order is in effect.  The procedures are very similar to those when you get the original order.  Some courthouses provide forms and instructions for modifying restraining orders.  In other counties you will need the assistance of a shelter or crisis line, a legal services office, or a private attorney.

What if I can't attend the hearing or need to postpone it?

It is extremely important that you attend the hearing.  If you do not appear, your attacker will probably get what he is requesting.  If you have a major emergency and cannot make the hearing, call the clerk.  You may have to submit a written request to postpone the hearing.  If the respondent raises issues that were not included in the notice, you are entitled to a reasonable extension to investigate the issue.  If your attacker arrives at a hearing with a lawyer, you may want to ask the court to give you an extension to try to find a lawyer to represent you.

What happens if my attacker does not obey the order?

If your attacker is arrested, he will be taken to jail and booked.  He can be released in an hour or two by posting approximately $500 of a $5,000 bail.  He may also be released on his promise to reappear in court after he has seen a judge or release officer.  When he is released, he will be subject to a Release Order which will contain a condition that he have "no contact" with the victim (you).  He cannot talk to you, see you or write to you.  He can send you messages through friends, as long as they are not threatening messages.  He can still have visits with the children according to the visitation terms of the restraining order, but this must be done without contact with you.

If you are afraid that your attacker might abuse you after he is released, you may want to contact your local shelter or crisis program.

You should receive a notice from the court that tells you the date of the hearing.  Usually the District Attorney's office will be prosecuting him for violating the restraining order.  You should contact the District Attorney's office to see if they are filing charges, if you are not otherwise told.  Usually the charge they will bring is "contempt of court," sometimes on a very serious violation, the District Attorney will file a separate criminal charge against your attacker.

A private attorney may file "contempt" charges, too.  Depending on what steps the private  attorney asks the court to take, your attacker may have the right to request a court-appointed attorney to represent him at the hearing.  When the District Attorney brings the charges, your attacker will probably be appointed an attorney if he can't afford one.

At the hearing, the court will listen to the testimony from you, your attacker, and any witnesses, then will decide if your attacker is guilty.  If it is a "contempt" case, he could be sentenced to as much as six months in jail and/or fined 1% of his annual salary or $500.  If it is a criminal charge, the penalty depends on the charge.

You can ask the District Attorney or your own lawyer to prosecute him for violating the restraining order whether or not the police arrested him for violating the order.

Can I talk to my attacker or invite him to my house after I get a restraining order?

Unless your restraining order specifically orders your attacker not to contact you by mail or phone, the restraining order is not a "no contact" order.  You can talk to each other in person as long as he does not menace or threaten you.  You can talk to each other by phone or write letters unless your order prohibits him from doing this.

If your restraining order says he cannot enter your house, you cannot change your restraining order by giving him permission to enter your house.  If he is at your house, even with your permission, he will probably be arrested if he is caught.  The neighbors could call the police, who would be required to arrest him if they thought that he had been at your house.  You can meet at a friend's house or at a public place like a restaurant--anywhere he is not ordered to stay away from--as long as he does not menace or threaten you.  If he has visitation with the children, you should exchange the children at some place other than your house.

Note:  The state law on Restraining Orders is in Oregon Revised Statutes, beginning at section 107.700 and also in sections 133.055 and 133.310.  These books are in your public library.

Click here to view Oregon Revised Statutes online.

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