Family Abuse Prevention Act

A FACT SHEET ON RESTRAINING ORDERS
UNDER THE FAMILY ABUSE PREVENTION ACT

What is a restraining order?

It is an order from a Circuit Court judge telling you, the Respondent, that you must not abuse and you must stay away from the person who got the restraining order, the Petitioner. If you do not obey the order, you may be arrested and charged with "contempt." (If you are found guilty of contempt, you can be jailed and/or fined. If what you do is also a crime, you may be charged with separate criminal charges (for example, assault).

A restraining order can:

1. Require that you not intimidate, molest, interfere with, or menace (threaten), or attempt to intimidate, molest, interfere with, or menace the Petitioner.
2. Require that you not intimidate, molest, interfere with or menace (threaten), or attempt to intimidate, molest, interfere with, or menace the children in the Petitioner's custody.
3. Give the Petitioner temporary custody of the children
4. Require that you move out of the family home if you are married to the Petitioner, of if you are not married, to move out of the home if it is owned or rented solely by the Petitioner or if it is jointly owned or rented by you and the Petitioner.
5. Require you to stay away from the Petitioner's home, job, school, or any other place, if necessary to protect the Petitioner and/or the children.
6. Require that a peace office go with the Petitioner to the family home for up to 20 minutes to allow Petitioner to remove personal effects such as clothing, diapers, medications and identification.
7. Grant any other relief that the court considers necessary to provide for the safety and welfare of the petitioner and/or the children.

Who can get a restraining order? 

A person can get a Restraining Order like this if the person is the victim of "abuse" committed by a "family or household member." "Abuse" means you are alleged to have done one of the following within the last 6 months:

1. Physically hurt or tried to physically hurt the Petitioner;
2. Threatened the Petitioner with immediate and serious harm; or
3. Sexually abused the Petitioner.

"Family or household members" are defined as spouses, ex-spouses, live-in partner, partners who lived together within the last two years, or persons involved in a sexually intimate relationship within the last two years, adults related by blood, marriage, or adoption, or un-married parents of a child.

How can I object to the order? 

If you want to object to all or part of the order, you must write to the court within 30 days and ask for a hearing. Read and follow the instructions in the Restraining Order carefully. You must state in your letter what part of the Restraining Order you object to so the judge can know your concerns.

Where temporary custody is contested, the hearing will be held within 5 days of the Respondent's request. Otherwise, it will be held within 21 days of the request.

You must appear at the time if you want to be heard. If you cannot attend the hearing at that time, you should call the Clerk and ask for another hearing date.

Until the hearing takes place, the Restraining Order is in effect and you must obey it. The Petitioner will be told of the hearing date and will receive a copy of your hearing request. The Petitioner may be represented by an attorney. You also have the right to have an attorney represent you. The judge will decide at the end of the hearing whether to change any part of the Order.

You may object to: 

1. The Restraining order itself. If you deny that you have physically injured, threatened to harm, or sexually abused the Petitioner, you can so testify before the judge, and present witnesses to back you up. You may also cross-examine (question) the Petitioner and the Petitioner's witnesses.
2. Your removal from the home. You can be ordered out of the family home if you are married to the Petitioner, or if not married, if the home is jointly owned or rented by you and the Petitioner, or if the home is in the sole name of the Petitioner. If, for example, you are not married to the Petitioner, and you own the home, you can likely regain possession of your house.
3. Custody and/or visitation. May Respondents ask for a hearing in order to gain visitation when the judge give the Petitioner custody of their children. See below.

What if I want visitation with our children? 

You should be prepared to explain to the judge your plan for picking up and returning the children in a way that avoids contact with the Petitioner and lessens the disruption for the children. The children are probably already upset with the situation, and you will need to convince the judge that your visitation plan is reasonable and in the best interests of the children. It often is a good idea to have a third person act as a go-between for visitation, someone that both you and the Petitioner trust.

The judge decides how much visitation to allow and how to set it up. The judge can deny visitation rights, or allow frequent visitation, depending on the facts of each case, the children's ages, the kind of abuse and so on.

What if I want to seek legal custody of our children? 

If you believe it is in your children's best interests to be with you, you can ask the court to give custody to you instead of the Petitioner. Both you and the Petitioner can call witnesses to testify to the judge. Generally, however, these hearings are not the best place for a custody hearing because of time limits and crowded dockets. If you are serious about seeking custody of your children, you should seek a lawyer. Contested custody cases are best handled through a divorce proceeding, post-divorce case, or, if you and the Petitioner were never married, through a lawsuit for the specific purpose of deciding custody, visitation and support (and paternity if necessary).

What happens if I do not obey the restraining order? 

Once the Restraining Order has been properly served on you (delivered) by the Sheriff's Department, you will be arrested if you disobey the Order, anywhere within the state. For example, if the Order says that you cannot go around the family home, you can be arrested for being on the front porch. The Restraining Order will be on file in the statewide police computer system, so they will be aware of the Order at all times.

If you are arrested for violating a Restraining Order, you will be detained until you pay 10% of the bail listed in the Restraining Order. In most cases the bail is $5,000, which means you would have to pay $500. The length of time you spend in jail depends on how long it takes to pay your bail. If you cannot pay your bail, you can be held in jail until a contempt hearing takes place (usually within three weeks).

If you are found in contempt of court for not obeying the Restraining Order, you can be put in jail for up to six months or fined up to $500 or 1% of your annual gross income -- whichever is greater, or both. The Petitioner can be represented at the hearing by the District Attorney or by a private attorney. You can hire an attorney yourself, you can ask the court to appoint an attorney to represent you.

Can I telephone the petitioner? 

Unless the Order specifically states that you are not to telephone the Petitioner, you may call if you do it in a reasonable way. However, threatening calls or repeated calls that amount to harassment, may result in a contempt action against you. If you need to talk to the Petitioner, you may want to do it by letter (unless the Order specifically states not to), use a friend as a go-between, or consult an attorney for advice.

What happens if the petitioner gets a restraining order but legs me visit or move back in? 

If you have been served with a Restraining Order, it is valid until it expires or until a judge changes the Order. If the Petitioner allows you to visit or otherwise be in violation of the Order, you are still subject to possible arrest or contempt charges for violating the Order. If the Petitioner asks you to leave after allowing you to enter, you must leave. If the police see you in violation of the Restraining Order, they are required to arrest you. Once the Restraining Order has been served on you, the police must enforce the Order. The Restraining Order remains in effect until it expires or is terminated by court order and you must obey it.

What happens if the petitioner contacts me at my new residence?

You are not violating the Order by merely talking to the Petitioner at your own home. The possibility that an unpleasant situation may develop is a real one, however, especially if either you or the Petitioner should get upset. To be safe, it is probably best to avoid or discourage contact as long as the Restraining Order is in effect.

What happens if there is no restraining order or the order runs out? 

If there is no Restraining Order, of if the Restraining order has expired or been dismissed by the judge, you must still abide by the state law. You can be charged with a crime if you assault or threaten the Petitioner or anyone else. In addition, the law specifically requires that the police must immediately arrest you if they have probable cause to believe that you have assaulted or threatened to seriously injure your spouse, former spouse, present or former live-in partner or any adult person related to you by blood, marriage or adoption, or someone you share a common child with. You can be arrested and put in jail until you post the bond set by the court.

If any individual has accused you of abuse and does not want you to live with or come around him or her, you should do your best to stay away.

You can read the Family Abuse Prevention Act in Oregon Revised Statutes, Chapter 107.700 - 107.732, available in the Lane County Law Library.  Other pertinent laws are ORS 133.055 (2) and (3), and ORS 133.310 (3).  ServedwithRO.wpd (7/00)

Click here to view Oregon Revised Statutes online.

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