It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.
If you have been a victim of physical abuse or threatened abuse, you may be able to get a restraining order under the Oregon Family Abuse Prevention Act. This law allows you to obtain protection from domestic violence without having to file for a divorce or legal separation (although you can do so if you wish). Persons at least 65 years old or people with disabilities may also be eligible for additional protections under the Elderly and Persons with Disabilities Abuse Prevention Act, described in http://www.osbar.org/public/legalinfo/1193.htm">Protection of Elders and Disabled Adults from Violence and Emotional Abuse.
Restraining Order Requirements
You can get a restraining order under the Family Abuse Prevention Act if your situation fits the following criteria:
- Age. You are at least 18 years old, or you are younger than 18 and the person who abused you is at least 18 and 1) you are (or were) married to that person, or 2) you have been in a sexual relationship with that person.
- Relationship. The person who abused you is: 1) your husband, wife, or domestic partner; or 2) your former husband, wife, or domestic partner; or 3) an adult with whom you are living (or did live) in a sexual relationship; or 4) an adult with whom you have been in a sexual relationship in the last two years; or 5) an adult related to you by blood, marriage, or adoption; or 6) the parent of your child.
- What is meant by “abuse”? If in the last 180 days, the person you wish to restrain has: physically injured you; or tried to physically injure you; or made you afraid that he or she was about to physically injure you or made you have sexual relations against your wishes by using force or threats of force. (Note that any time period in which the person who abused you was in jail or lived more than 100 miles from your home does not count as part of the 180-day period. This means you may still be able to get a restraining order even if it has been more than 180 days since you were abused.)
- Ongoing Danger: You are in danger of more abuse very soon, and the person who abused you is a threat to the physical safety of you or your children.
NOTE: A judge cannot give you a restraining order solely for threats to take your children, rude behavior, verbal or emotional abuse, or damaged property unless you were in fear that you were about to be physically injured.
What Is A Restraining Order?
A restraining order is a court order that tells the person who hurt you (the “respondent”) to leave you and your children alone. It can tell the respondent to move from your home and can deal with temporary custody and parenting time of your children. It can also require the respondent to stay away from your home, school, place of employment, or your children’s day care provider. You can ask the judge to add other orders (listed in the restraining order papers) that you think will help you stay safe. 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 probably no more than 15 minutes while you (or the abuser who has been ordered to leave) remove essential personal items from the home.
A 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.
Where Do I File for a Restraining Order and How Much Does It Cost?
You must file for a restraining order in the courthouse in the county where either you or the respondent live. Getting a restraining order is free.
How Do I Fill Out the Papers to Get a Restraining Order?
Use a blue or black ballpoint pen and write clearly. Answer each question carefully and tell the truth. Do not write in the parts of the papers that say “Judge’s Initials.” You will need to sign in front of a notary or court clerk. Bring ID (photo ID is best). If available, a court facilitator or advocate may be able to help you with the forms. They cannot answer legal questions.
What Happens After I Fill Out the Papers?
A time will be set for the judge to look over your papers. The judge may ask you some questions. If the judge gives you the restraining order, court staff will make copies for you. You will need to have one of the copies hand-delivered to the other person by a sheriff’s deputy (free in Oregon), a private process server or any adult, as long as the person lives in the state where the papers are served. You may not serve the papers yourself. The server is required to complete and file with the court a declaration of service. There is a form for this in the packet, but some servers use their own forms. Talk to the court clerk about ways to get the respondent served. The respondent cannot be punished for violating (not following) the restraining order until after he or she receives a copy of the order. A copy of the restraining order and proof that it has been served must be filed with the local sheriff’s office. It will then be entered into a statewide law enforcement database so all Oregon police agencies will know the order is in effect. The order will then be enforceable throughout the state of Oregon.
Will A Hearing Be Scheduled?
In a few cases, the judge may wait to make a custody order and will set a hearing to get more information about the children from you and the respondent. You must go to that hearing or the order will probably be dismissed (dropped). Otherwise, the respondent has 30 days from the date of service to request a hearing. If the respondent does not request a hearing, the restraining order will stay in effect. If the respondent does request a hearing, it will be held very quickly. You may have as little as two days to get ready to go to the hearing. If the hearing is scheduled more than a few days away, the court will send you notice of the time and date of the hearing in the mail. If there is not enough time to mail you a notice, the court may contact you by telephone. Be sure the court always has your current contact addresses and contact phone numbers so you get notice of any hearing. You also can call the court to check to see if a hearing has been set. Remember, you must go to the hearing or the order will probably be dropped. If you cannot go to the hearing due to an emergency, call the court clerk right away. It may be helpful to have an attorney represent you at the hearing, but it is not required.
Do I have to Disclose Where I am Living?
You may have gone to a safe place that is not known to your abuser. If so, you may want to use a so-called “contact address”— that is, an address other than where you are actually staying. If you decide to do this for your safety, you also are agreeing to allow your abuser to serve his or her court papers on you at that address. You must check for court papers at that address regularly so long as you list that address with the court since it is the address where your abuser must send copies of anything he or she files, in the same case or another case. If you miss a court deadline because you have not checked for court papers at that location, the other person will win whatever he or she was asking for in the papers delivered to that address.
What Happens at the Hearing Requested by the Respondent?
The purpose of the hearing is to decide whether or not the restraining order will remain in effect, and if it does remain in effect, if the order will stay the same or change in some way. The judge may decide not to change the order even if both sides agree that they want the same changes. At the hearing, you must prove that you have been abused and that you are in danger of further abuse. You should be ready to give your own testimony, call witnesses, and give the judge any evidence you have (such as photos of your injuries). In some cases, if the restraining order stays in effect, it will be against the law for the respondent to have guns. If you are worried about your safety, you may ask for a sheriff’s deputy to be present in the courtroom.
When Will the Hearing Be Held?
The respondent must request the hearing within 30 days of being served, and the hearing must be held within 21 days after the court receives the request for hearing. If temporary child custody is an issue, the hearing must be held within 5 days after the request. In addition, if there are exceptional circumstances that would affect custody, either party can request that the hearing take place within 14 days.
How Long Does A Restraining Order Last?
A restraining order lasts for one year from the date the judge signed it or until it is dropped by a judge. It can be renewed for one year at a time, if the judge believes you are likely still in danger. To renew the order, you must file the court paperwork before the order ends.
What Can I Do if the Respondent Violates the Restraining Order?
You can call the police. The officer must arrest the respondent if there is a good reason to believe a violation has happened. The respondent can be charged with contempt of court. If found guilty of contempt, the respondent can be fined, placed on probation, or put in jail. It is best that you carry a copy of the restraining order with you at all times and that you not contact the other party. A restraining order does not guarantee your safety. You can take other steps to stay safe. A domestic violence or sexual assault program can help. For information, go to www.or.us/familylaw and look for the “Domestic Violence Information” link provided there.
If the police are called to make an arrest, they are required by law to do so if they have “probable cause” to believe that the restraining order has been violated. The restraining order also sets a bail, usually $5,000, for violations of the order. If the restraining order is violated, you should call the police and have the abuser arrested. After being processed at the jail, the abuser could be released without posting bail if he or she appears to be a good risk to reappear in court. A condition of the release will probably be that the abuser does not have any contact with you. Otherwise, the abuser will be held in jail until 10 percent of the bail is paid, or until the bail is lowered in a court proceeding, or until a hearing has been held on whether or not the restraining order has been violated. If the person who has abused you is arrested for violating the restraining order, a court hearing may be set to have the person found in “contempt of court” for violating the restraining order, or criminal charges can be filed. If the respondent is found in contempt of court, the maximum punishment could be a fine and/ or up to six months in jail. Other possible punishments could be a warning, probation, a suspended sentence or a sentence of less than the maximum. Your local district attorney is required to represent your interests at the contempt hearing if you cannot afford to hire your own attorney.
What If I Want to Drop the Restraining Order?
You must file papers at the courthouse to ask the judge to drop the order. The order remains in effect until the judge dismisses it. It may take a few days for law enforcement to get notice of the dismissal.
Can the Restraining Order be Changed While it is in Effect?
Only custody or parenting time parts of the order can be changed (except at a hearing to contest the order within the first 30 days after the respondent has been served). The party (you or the respondent) who wants to make a change must file paperwork at the courthouse. The paperwork will be served on the other party and the judge will either set a hearing, or ask you to file a written response to decide whether or not the custody or parenting time orders should be changed.
Do I Need a Lawyer?
If you have questions about how the law works or what it means, you may need to talk to a lawyer. You are not required to have a lawyer to obtain the restraining order, but you can have a lawyer represent or help you if you wish. If you need help finding a lawyer, you may call the Oregon State Bar’s Lawyer Referral Service at (503) 684-3763 or (800) 452-7636. If you believe you cannot afford a lawyer, ask court staff if your area has a legal services (legal aid) program that might help you.
What if I Need an Accommodation or an Interpreter?
If you have a disability and need an accommodation, or you are unable to speak English and need a foreign language interpreter, you must tell the court as soon as possible, but at least four days before your hearing. Tell the clerk that you have a disability and what type of assistance you need or prefer, or which language you speak.
Can I File for a Restraining Order if I am Filing for Divorce or Legal Separation?
Often, a restraining order is obtained in the course of a divorce or legal separation, but you do not have to file for divorce if you do not want to; you can just ask for the restraining order. However, if you want to combine a restraining order with a divorce or legal separation, you probably should see an attorney for advice.
Where Can I Get Help if I’m being Abused and Don’t Have a Restraining Order Yet?
If you do not have a restraining order and you are the victim of domestic violence, you should call your local police agency. If the police are called to the scene and have probable cause to believe abuse has occurred between spouses, former spouses, or adults who are living together or who used to live together, the police are required to arrest the abuser. The police will give you information on how to obtain a restraining order in your county. If your abuser is arrested, you should go to the district attorney’s office the next working day, first thing in the morning, to file a criminal complaint against the abuser, and you may want to get a restraining order too.
Some counties also have shelters for people who have been abused. Contact your legal aid office or an information and referral network in your area for more information.
Legal editor: John J. Marandas, June 2009.