Temporary restraining orders
FAPA Primer

Temporary restraining orders

After filing a petition for dissolution of marriage, but before the final judgment, any party to the action may motion the court for a temporary restraining order (TRO) for the purpose of securing child support, spousal support, and compliance with a parenting plan. Filing suit also invokes an automatic restraining order applicable to all parties enjoining them from wasting, dissipating, encumbering, transferring, or otherwise disposing of assets while the case is pending unless the court finds it absolutely necessary to do so. Any violation of this order will subject the guilty party to contempt of court. Besides the TRO request within the context of a domestic relations proceeding, the Family Abuse Prevention Act (FAPA) provides for restraining orders to be obtained independent of any domestic relations action for the sole purpose of guaranteeing the safety of the Petitioner and Petitioner’s children, if any.

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FAPA primer

The Family Abuse Prevention Act (FAPA) provides statutory authority for a judge (the Court) to order that certain abusive activities cease, under penalty of law. It prohibits the person who is the subject fo the order (Respondent) from engaging in abusive behavior towards the person making the request (Petitioner). For example, Respondent might be ordered not to go to the Petitioner’s residence or not to make threats of harming the Petitioner. The following points describe the essential features of a FAPA restraining order.

  1. Venue. Venue requires that the Family Abuse Prevention Act (FAPA ) petition be filed in a county where either party, Petitioner or Respondent, lives without regard to period of residence. For example, Hillsboro and Beaverton residents could file in Washington County circuit court or the county where the Respondent resides.
  2. Showing. Showing requires that Petitioner claim legally defined abuse between household members occurring within the last 180 days and that Petitioner is in imminent danger of further abuse from a Respondent who represents a credible threat to physical safety of the Petitioner or her/his children.
  3. Allegations. Allegations must specify the nature of abuse described with particularity and with dates of abuse.
  4. Ex parte Hearing. Ex Parte hearing, in person or by telephone, is required even with a parallel domestic relations case pending.
  5. Elements. The elements to be determined under the preponderance of the evidence standard are (1) eligible relationship, (2) prior abuse within the previous 180 days, (3) imminent danger of further abuse, (4) credible threat to the safety of the Petitioner or Petitioner’s child.
  6. Restrained Activities. Activities Respondent is restrained from doing are (1) intimidation, (2) molestation, (3) interfering or hindering, (4) menacing, and (5) attempting any of the foregoing activities.
  7. Custody and Parenting Time. Temporary custody and parenting time orders must be granted at the ex parte hearing unless the Court determines that “exceptional circumstances” exist that affect the decision. In such a case, the Court provide the Respondent with an opportunity to offer evidence to contest the restraining order at an “exceptional circumstances” hearing. However, interim orders regarding the child’s residence and the parties’ contact with the child are permitted but not to exceed 14 days.
  8. Ouster. Ouster of Respondent from the family residence is permitted only if (1) the residence is solely in petitioner’s name, (2) the parties jointly own or rent the residence, or (3) the parties are married to each other.
  9. Restraint From Entry. Restraint from entry onto specified premises, such as place of business or employment, Petitioner or child’s school, and homes of relatives, is allowable.
  10. Contact. Contact by Respondent with Petitioner or Petitioner’s child in person, by telephone, or by mail may be restrained.
  11. Standby. Police standby is provided for to permit the party leaving the residence to safely remove essential personal items. Standby is only available for one occasion and is not required to extend past 20 minutes.
  12. Security. A security amount must be stated which is the amount Respondent must post for any violation of the restraining order. The statutory amount is $5000 but the Court may require more.
  13. Notice. Notice must be provided to the Respondent including a description of rights and procedures to request a hearing to contest the restraining order. Petitioner must provide the Court clerk sufficient information to allow the clerk to give notice to Respondent.
  14. Discretionary Relief. The Court has discretion to provide any other relief it considers necessary including a restraint on third party contact on behalf of Respondent, reasonably expanded property division, emergency monetary assistance, dispossession of firearm or concealed weapon permit. Substantial actions by the Court in these areas require a hearing in which the Respondent may appear to contest the restraining order.
  15. Subsequent Orders. Temporary orders and judgments/modifications resulting from a subsequent domestic relations case typically take precedent over a prior FAPA restraining order with some exceptions for temporary custody or parenting time orders, i.e. consolidation and notice.
  16. Preexisting Orders. FAPA cases may modify preexisting orders or judgments. FAPA modification of judgments or custody provisions require that the preexisting order be modified within a stated time or the FAPA restraining order will lapse. FAPA modification of parenting time does not require modification of the prior parenting time plan.
  17. Paternity. If paternity is in question, it must be established before the Court may order custody or visitation rights to the putative father.
  18. Parenting Time. If the Court awards parenting time to a parent who committed abuse, the Court must incorporate adequate provisions to protect both the Petitioner and child. Typical provisions include designation of a particular place for the exchange of the child, supervised parenting time with costs borne by the Respondent, completion of domestic violence prevention training, prohibition against consumption of alcohol or controlled substances during the parenting time and up to 24 before, and a prohibition against overnight parenting time.
  19. Duration. The duration of the FAPA restraining order must not exceed one year or the date the order is withdrawn, amended or superseded.
  20. Dismissal. The Court may dismiss a restraining order at any time but only by written order or upon filing of a notice signed by the Petitioner and notarized.
  21. Renewal. The Court may renew the restaining order on the basis of a sworn ex parte petition alleging continuing existence of the required elements for the original order. No further acts of abuse are required and the number of renewals is not limited. However, Respondent may request a hearing within 30 days of receipt of notice, which must be granted within 21 days of making the request.
  22. Modification. Petitioner may request modification of the restraining order but only after the 30 day window provided for Respondent to request a hearing and only regarding the custody and parenting time provisions. Respondent may also request modification of the custody and parenting time provisions.
  23. Contesting Custody. In the event Respondent contests custody, the hearing shall be conducted within 5 days of the request rather than the usual 21 days.
  24. Exceptional Circumstances. If the Court determines that exceptional circumstances exist, a hearing regarding temporary custody shall be conducted within 14 days of issuance of the FAPA restaining order. However, Respondent may request an earlier hearing to be conducted within 5 days. This type of hearing precludes a separate hearing to contest the restraining order itself.
  25. Continuance. Continuances are available under certain situations to provide a party with adequate time to prepare.
  26. Settlement. The Court may approve a consent agreement that will bring about a cessation of abuse. Exceptions apply.
  27. Mediation. Mediation of custody or parenting time issues is not permitted under FAPA.
  28. Hearings. A hearing to contest the FAPA restraining order is not limited to issues raised in Respondent’s request for hearing nor is Petitioner limited to the relief granted ex parte. The procedures are similar to a trial, with Petitioner having the burden of proof, but thorough discovery is hindered by the FAPA time frames. Continuances may be available as needed.
  29. Foreign Restraining Orders. A restraining order from another state is enforceable immediately upon the protected person’s arrival in Oregon. Registration with the Court or law enforcement may not and is not required, however, there are certain advantages to doing so.
  30. Venue for Violations. Venue for punitive contempt cases may lie in either the county of issuance of the FAPA order or the county of violation. The person initiating a contempt action in the county of violation must provide the Court with a certified copy of the restraining order. For example, if the violation occurred in either Hillsboro or Beaverton, the case may be filed in Washington County circuit court or in the county of issuance if issued elsewhere.
  31. Contempt Proceedings. Contempt proceedings are sui generis, neither civil nor criminal. They may seek either remedial or punitive sanctions, however, a request for punitive sanctions is dealt with in a manner similar to criminal proceedings except there is no right to a jury. Charges of a punitive nature must be proven beyond a reasonable doubt while charges of a remedial nature must be proven by clear and convincing evidence.
  32. Accusatory Instrument. An accusatory instrument is required to initiate a punitive contempt proceeding. The prosecutor may initiate proceedings on her own initiative or on the request of a party or the Court.
  33. Punitive Sanctions. The maximum punitive sanctions are (1) a fine not exceeding $500 or 1 percent of gross annual salary, whichever is greater, (2) confinement for not more than six months, (3) forfeiture of any proceeds or profits obtained through the contempt, (4) probation including compulsory attendance of a batterer intervention program, and (5) community service.
  34. Remedial Sanctions. The Court may impose remedial sanctions including (1) restitution, (2) confinement for so long as the contempt continues or six months, whichever is less, (3) a fine not exceeding $500 or 1 percent of gross annual salary, whichever is greater, (4) an order designed to ensure compliance with the prior FAPA restraining order that was violated, including probation, (5) any other sanction the Court determines would be an effective remedy for the particular act of contempt.