Restraining Order

Under Oregon law men and women who have been subjected to abuse may ask a judge to give them a restraining order against their abuser to prevent future abuse.  Restraining Orders are a powerful tool which can stop domestic violence, but are subject to being misused.

How do You Get a Restraining Order in Oregon?

Restraining orders are created when a woman or man goes to the courthouse and fills out forms in which the person tells the judge about the abuse and what things she or he wants the judge to do.  After filling out the paperwork, the person will appear in front of the judge in a brief, usually no more than 15 minute, court appearance.  The judge will go over the paperwork and ask questions.  If the person meets the legal requirements the judge signs the restraining order and it is taken to the Sheriff’s Office to be personally served on the person to be restrained.  Although this process is straightforward and happens hundreds of times a day throughout Oregon, it really is a highly unusual court proceeding.  A court order is being granted without the other side even knowing about the hearing.  He or she has no chance to present their side of the story or give evidence at that time.

What does it take to get a Restraining Order?

The judge will grant a restraining order if the petitioner (the person asking for the restraining order) shows that he or she has been the victim of abuse within 180 days prior to filing for the restraining order.  Abuse is defined as:

  • Attempting to cause or intentionally, knowing or recklessly causing bodily injury to a family or household member
  • Intentionally, knowingly or recklessly placing another in fear of imminent bodily injury
  • Causing another or engage in involuntary sexual relations by force or threat of force

Also the petitioner must show facts showing that she or he is imminent danger of further abuse if the restraining order would not be granted.  This evidence has to be more than a general fear of the respondent.

Against Whom Can You Get a Restraining Order?

The petitioner can’t get a restraining order against just anybody.  The respondent (the person getting the restraining order) has to be a family or household member.  Those persons are defined as:

  • Spouses
  • Former spouses
  • Adult persons related by blood, marriage or adoption
  • Persons who are cohabitating or who have cohabitated with each other
  • Persons who have been in a sexually intimate relationship with each other within two years of filing the request for the restraining order
  • Unmarried parents of a child

Restraining-OrderWhat Does the Restraining Order do:
If the judge grants the restraining order, the judge will order that the respondent have no contact with the petitioner or the parties’ children except as the judge may allow in the order.  For example the judge may allow the respondent to contact the petitioner by phone, text or email or through a third party for purposes of arranging parenting time or discussing issues about the children.

If the parties live together, the judge will usually make the respondent move out.  Even if the respondent owns the house, or has the rental agreement in his or her own name, the judge can order the respondent to move out.  The sheriff who serves the restraining order on the respondent will do a “20 minute standby”, while the respondent gathers up things like clothes, work tools, and toiletries.  If the petitioner requests it, the judge must award custody of the minor children to the petitioner.  The judge can grant parenting time to the respondent.

The judge can also order the respondent not to possess firearms during the period of time of the restraining order.

How Long Does the Restraining order Last?
A restraining order lasts for one year from the time it is served upon petitioner.  However, it can be renewed for additional one year periods of time if the petitioner alleges that she or he is still in imminent danger of further abuse if the restraining order is not continued.  The respondent can challenge renewals of the restraining order.

How do you challenge a Restraining Order?
The respondent can challenge the restraining order by submitting a written request for a hearing within 30 days of being served with the restraining order.  There is a form that is attached to the restraining order, which can be used to file to request a hearing with the court.  If a person files a written challenge within the 30 days, the court clerk will send a copy of it to the petitioner.  The court clerk will notify both parties of the date and time of the hearing.  The hearing must be held within 21 days but can be quicker under some circumstances.  At the hearing challenging the restraining order, the petitioner has to testify or put on evidence first, because the first court hearing was held without the respondent present, the burden of producing evidence is still on the petitioner at the hearing on the respondent’s challenge to the restraining order.  After the petitioner puts on evidence, the respondent has an opportunity to testify and put on evidence.  At the hearing challenging the restraining order, if petitioner doesn’t show up, the restraining order will dismissed by the court.  If respondent doesn’t appear, the restraining order will be upheld.

What happens if the Respondent Doesn’t Challenge the Restraining Order?
If the respondent doesn’t request a hearing within 30 days after service, the restraining order remains in effect and respondent loses the right to ask that it be dismissed.  However, a respondent can come back to court at any time to ask the custody or parenting time be modified.

What happens if the Respondent Challenges the Restraining Order and Wins?
If at the hearing the judge determines that the restraining order should not have been granted in the first place, the judge will dismiss the restraining order and the situation will go back to the way it was before the restraining order was issued.  That means the respondent may move back into the home, theirs is no longer a court order for the custody and respondent can have contact with the petitioner.

What Happens if The Respondent Challenges The Restraining Order And Loses?If the judge upholds the restraining order after the hearing, then the order stays in place and the terms of the restraining order will be the same.  The judge may uphold the restraining order but may modify some provisions.  For example, the judge might modify the parenting item or allow some contact between the parties that is different than originally ordered.  However, one of the most significant issues for respondents who lose their challenge to the respondent is the effect that has on the respondent’s right to possess firearms.

Can The Respondent Lose His or Her Right to Possess Firearms?Yes, as noted the judge has the right to order that the respondent cannot possess firearms during the period of time of the restraining order.  However, even if the judge doesn’t not order this specific provision, under federal law, if a person challenges a restraining order and loses, he or she will be forever barred from possessing firearms in the future.  This can be a huge issue for people who value their right to possess and use firearms.

How Are Restraining Orders Abused?

While restraining orders serve a vital function, protecting men and women abused by their domestic partners, they are subject to abuse.  Many times they are used in the context of a divorce or custody case.  A person who wants to gain an upper hand in a future or ongoing custody battle might go to court and falsely allege abuse.  If believed, the court will grant the petitioner custody of the children and cause the respondent to be evicted from the family home.  This will give the petitioner a huge advantage in a custody battle in the custody case.  Under Oregon law there is a presumption that an abused parent should have custody of children.  Also judges in custody cases place great reliance on which parent has been the “primary parent.”  So if a parent has been evicted from the family home by the falsely obtained restraining order he or she will probably not be the primary parent.  The parent who has obtained the restraining order will be the one primarily raising the children.

Another type of abuse is when a petitioner seeks to control a spouse.  While they parties may not be involved in a custody case, sometimes a petitioner seeks to control the behavior of their spouse.  The actions of the respondent may not constitute abuse as is legal defined but because the petitioner is mad at respondent, the petitioner will lie to the judge about that the respondent has done, in order to get the respondent removed from the family home.

Should You Have a Lawyer to Obtain or Challenge a Restraining Order?
The vast majority of people seeking restraining orders do not have lawyers.  Judges have to evaluate petitioners’ allegations rise to the level of abuse to justify a restraining order.  Some petitioners could have gotten a restraining order to protect themselves if they had consulted with an experienced attorney before going to court.  Respondents should absolutely consult with an experienced attorney before deciding whether to challenge a restraining order.  A respondent may make a strategic decision not to challenge a restraining order even if involved in custody battle.  Additionally, the risk of a respondent losing his or her right to ever possess firearms in the future may heavily weigh on the decision of whether or not to challenge the restraining order. Each situation is unique.  You should consult with an attorney in a restraining order case.

If you live in Bend, Redmond, or any region of Central Oregon and think you need help with a Restraining Order, or would simply like to set up an initial consultation, please contact me.