The Court of Appeals reversed the trial court’s decision to continue a restraining order after a hearing. The court found that, although the respondent had sent the petitioner harassing text messages, and had threatened to expose damaging information about her to the public, he had not placed her in fear of imminent bodily injury, which is the standard under the Family Abuse Prevention Act.

 The entire opinion can be found here:

The Court of Appeals affirmed the trial court’s continuance of a restraining order based on the petitioner’s testimony that the respondent threatened her and physically intimidated her and that she feared future abuse.  The respondent argued that petitioner had not established that he had abused her in the 180 days prior to petitioner filing for a restraining order.  The Court of Appeals, however, clarified that abuse, as defined by the Family Abuse Prevention Act, includes not only physically injuring a domestic partner, but also attempting to injure and causing the other person to fear imminent injury.  The Court of Appeals also found that the petitioner offered sufficient evidence of her fear of future abuse by testifying that respondent had engaged in a pattern of controlling and threatening behavior toward her which continued to escalate.

The entire opinion can be found here.

1. Case Law – Definition of Abuse in a Restraining Order Case.
2. What do you have to show to get a restraining order?
3. Who can get a restraining order?
4. New Case Law:  Restraining Orders, easy to get, but harder to keep?

The statutory definition of who can get a domestic violence restraining order is narrow, and require a family or household relationship between the petitioner and respondent.  Many times we see people that have serious safety concerns about a third party, but they are ineligible to get a domestic violence restraining order. What if the harassing party is the ex’s new girlfriend or boyfriend or spouse?  Unlike domestic violence restraining orders, Stalking Protective Orders don’t restrict who can apply based on the type of relationship the applicant has with the perpetrator.

The requirements for a Stalking Protective Order are:

1. The Respondent has engaged  intentionally, knowingly, or recklessly in repeated and unwanted contact with the applicant or a member of the applicant’s immediate family or household.
2. The Respondent knew or should have know that the repeated contact was unwanted
3. The Petitioner was alarmed or coerced by this unwanted contact
4. It is objectively reasonable for a person in Petitioner’s situation to have been alarmed or coerced by respondent’s contact.
5. The contact caused petitioner reasonable apprehension regarding the Petitioner’s own personal safety or the safety of a member of his  or her immediate family or household.
6. Respondent represents a credible threat to the physical safety of the person to be protected by the stalking order.

If the contact was a communication, the threshold for obtaining a stalking order is higher.

If you have serious safety concerns about a third party’s behavior and don’t qualify for a domestic violence restraining order, talk to a lawyer about whether a Stalking Protective Order can give you protection.

Oregon’s “Family Abuse Prevention Act” is intended to protect victims of domestic violence and allows victims of recent abuse to obtain protection from an abuser.  There is a lot of misinformation about restraining orders, how to get a restraining order, who can get a restraining order, and what you need to show to get one.  This is the first in a series of posts to dispel some of the misinformation.

Who can get a restraining order?  I have been asked dozens of times over the last 15 years if someone can get a restraining order against the neighbor, some parent at school,  an ex boyfriend, etc. The answer is no unless the offending person is a family or household member.  ORS 107.705 defines who qualifies as a family or household member. Family or household members are:

• Spouses.
• Former spouses.
• Adults related by blood, marriage, or adoption.
• Persons who are cohabiting now or who have cohabited.
• Persons who have been involved in a sexually intimate relationship with each other within the preceding two years.
• Unmarried parents of a minor child.

Minors have rights independent from their parents.

If you are considering getting a restraining order or receive one, you should talk to an experienced family law attorney.

     The Beaverton, Oregon law firm Case and Dusterhoff, LLP recently obtained a verdict for their client in a spousal abuse case in which they alleged Assault and Battery along with Intentional Infliction of Emotional Distress. The jury’s award was not very large, but the result was certainly a large moral and legal victory as such claims are rarely seen.

There are costs and benefits to proceeding under any model.  In a perfect world, the collaborative model would be the most cost-effective and most effective at resolving disputes in a manner that benefits all parties.  If your case involves physical or extreme emotional abuse, drug or alcohol abuse by one parent so severe that parent cannot understand the harm it has caused to kids or that parent is not able or willing to put up with supervision and requirements, if one party is unable to financially move forward and the other party will not cooperate, or if it is impossible for the parties to trust each other, then a traditional litigation model will be necessary to resolve your dispute.  

A good attorney who is trained and experienced in both models can assist you, not only in choosing the best model for you, but also, in making sure that you do not make the wrong choice.  The collaborative model can also be used to assist parties in domestic partnership dissolutions and custody disputes as well as in a divorce.

The lawyers at Stephens Margolin P.C. are happy to discuss the various legal models with you.  Contact us for a consultation if you would like to discuss these models with regard to your specific situation.

The Oregon Court of Appeals is a harder place to win a restraining order case. On November 28, 2007 the Oregon Court of Appeals reversed a trial court’s upholding of a restraining order in Baker v. Baker, ____ Or App ____ (2007). In the Baker case, the parties obtained mutual restraining orders against each other. Each party testified to a different version of events on the day of the incident that resulted in dueling restraining orders. The facts were ugly, and involved a pellet gun, a dog, and being dragged by the hair. Unfortunately for the petitioner, the testimony did not involve being threatened, or a fear of that the abuse would re-occur. The trial court upheld both restraining orders. The order upholding the dueling restraining orders issued by the court after hearing correctly identified the statutory test. To obtain a FAPA restraining order, the petitioner must show that he or she:

“has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition, that there is an imminent danger of further abuse to the petitioner and that the respondent represents a credible threat to the physical safety of the petitioner * * *[.]”

“Abuse” is defined in ORS 107.705(1):

“(a) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury.

“(b) Intentionally, knowingly or recklessly placing another in fear of imminent bodily injury.

“(c) Causing another to engage in involuntary sexual relations by force or threat of force.”

ORS 107.718(1)

The trial court erroneously upheld the restraining order without meeting all of the above elements. There was no testimony that the respondent had threatened petitioner. There was additionally no evidence that the petitioner feared a repeat of the incident, as required by ORS 107.718(1). The appellate court, finding error, reversed and vacated Petitioner’s restraining order.

The moral of the story is when faced with keeping or defending a restraining order, you need a lawyer that knows the appropriate statutory test. With the same facts, a different (better) series of questions by Petitioner’s lawyer could have potentially made the restraining order bulletproof in the eyes of the Oregon Court of Appeals. Also, quick analysis by defense counsel could have resulted (correctly, based on the testimony) in the restraining order being denied at the trial court level.

CNN recently reported about a custody dispute involving a golden retriever, whose adult owner committed suicide and whose (divorced) parents, the deceased man’s fiancee and the deceased man’s ex-girlfriend all sought custody of the dog. (The judge resolved the dispute in favor of splitting custody between the man’s parents, both of whom agreed to seek appropriate medical care for the dog and to other conditions.)

The case sounds extreme, but pet disputes are becoming more common. (For example, one of my immediate neighbors was involved in a protracted dispute over custody of two expensive show dogs. I often wish his ex-wife would have won, usually when I’m gardening near that particular fence.) In Oregon, the owner of a car dealership and his ex-wife feuded over custody of a wallaby named Skippy; Skippy had been purchased by the dealership and the wife was ordered to turn him over as part of other personal property listed in Exhibit A. Patchett and Patchett, 156 Or App 69, 964 P2d 1114 (1996).

When Skippy escaped (as he was prone to doing) and did not return, the husband filed a contempt action against the wife. Id. at 71-2. The trial court held the wife in contempt, but the Oregon Court of Appeals reversed, writing that there was no evidence the wife had willfully allowed Skippy to escape. Id. at 72.

Technically, of course, pets are not people and are not actually subject to “custody” disputes, but are more characterized as subject to “property division” disputes. Recently Maine extended domestic violence protection to animals and gave parties the option to seek temporary custody of animals in situations involving domestic violence, recognizing how common it is for abusive spouses and partners to take their anger out on pets. It will be interesting to see if the rest of the country, especially animal-loving Oregon, follows Maine’s example.