We recently invited former judge, Ken Stewart, to sit down with us and discuss Oregon’s Family Abuse Prevention Act restraining order, otherwise known as a FAPA. While this topic can be complex, Ken was able to shed some light, not only on the process itself, but important nuances to consider that are often overlooked.
As Judge Stewart explained, the process of obtaining a FAPA is fairly streamlined. It starts with filing a request for a restraining order. For this, you will need to go to your county’s courthouse to fill out the appropriate paperwork, called a petition. Fortunately, the petition itself is a series of printed questions that will largely guide you through the process of entering all the information you need to enter, including a space for you to describe the incident or incidents that have occurred. While this self-guided process can help ensure that you include all of the necessary information, Stewart warns against one simple but important error to avoid when filing a petition: legibility.
“I figure I've done about 10,000 ex-Parte appearances and FAPA hearings. One thing to be mindful of is, if you're going to file a petition for a restraining order, you better make it so the judge can read your writing,” says Stewart. “This is not only because the judge has to sign the order based upon the information you give them, but the information in the petition also has to be used by the respondent to respond. If they can't read it, they have no notice of what your claims are. So remember, write legibly.”
After you have completed and signed the petition, the clerk will tell you when and where to go for your hearing. At this hearing - called “ex parte” because the person you are asking to be restrained (the Respondent) won’t be required or asked to attend - the judge will look over your papers and may ask you questions. Depending on the law that applies and the severity of the other parties’ actions, the judge will decide whether or not to sign the restraining order. If the FAPA restraining order is granted by the court and served on the Respondent, he or she can challenge the order by requesting a hearing within 30 days of being served.
As far as getting ready for this second hearing, Judge Stewart has some critical guidance that he wants to make sure everyone heeds. You should always review your petition before your hearing. This is important because a judge will be looking for consistency between the statements made in the petition, and the statements given in a hearing.
“I use the petition to ask my questions,” says Stewart. “If the answers by the petitioner [in the hearing] are different than what's in the petition, it gives me some cause to think that maybe they're not accurate or they're not telling the truth. So I would recommend to any petitioner that, number one, you read your petition again before you come to your hearing, and number two, you bring it with you. This is because at the start of a hearing I ask both parties, 'Do you have the petition with you? Let's get it out. You can follow along with me.' So you better be accurate when you come to the ex parte hearing with your petition.”
When it comes to actually going to court, most judges understand that being in a courtroom is an unsettling and foreign experience for many people. And, while it’s important to remember that judges demand your respect and acknowledgment of authority, they do not want or need to be feared. Judge Stewart emphasizes this point by talking about how he generally starts the hearing.
“What I do at the start of a hearing is make sure that the parties understand that I know they're not lawyers. I want to provide them with a setting where they can do their very best in a situation that they're likely very uncomfortable in,” says Stewart.
At the hearing, both parties will be able to tell the judge why or why not the restraining order should continue to remain in effect. As Judge Stewart notes, this second hearing isn’t to decide whether to grant a restraining order—that was already decided and put into effect in the first hearing. His job is to decide whether or not it should be continued to be in force.
In making this decision, Judge Stewart reminds us that in order to qualify for a FAPA, certain criteria must be met regarding the person’s relation to you, as well as when and in what respects the abuse occurred. For example, abuse must have occurred within 180 days preceding the petition and you must be able to prove that you’re in imminent danger of further abuse.
While the various forms of abuse will be laid out for an individual in the petition, Stewart points out the petition will not include emotional abuse as grounds for a FAPA.
“I've had so many cases where this has come up. It’s usually husband and wife, or a man and woman in a non-marital situation that live together, but the husband becomes domineering. He keeps you from seeing your friends, he controls the finances, you have to account for every penny. That's certainly domestic abuse,” says Stewart. “But [in order to qualify for a FAPA] you also have to show that he's physical or physically threatening, that you're in imminent danger of further abuse, and he's a threat to your physical safety, or that of your children.”
While FAPA orders are necessary safety nets for many families who are fearful of physical abuse, there are times when the Petitioner and Respondent may eventually overcome their troubles and decide that the restraining order is no longer needed. While this is not an uncommon occurrence, Stewart warns against disregarding a court-ordered restraining order that is still in effect, even if you no longer feel that the individual is a threat to your safety.
“We've had so many cases where the parties have reconciled but haven't done a thing about the restraining order,” says Stewart. “[What can happen in this scenario] is the police can find out about the violation and make an arrest. At the hearing for contempt of court due to this violation of the restraining order, the petitioner may say, 'Well, I invited him over, I wanted him there'. While that may have some bearing on sentencing, it’s no defense.”
To hear more from Ken Stewart about the FAPA process, what you can expect during a hearing, and more of the nuances unique to FAPAs to be aware of, you can listen to his full interview via our Modern Family Matters podcast page. If you have further questions or would like to speak with one of our seasoned family law attorneys about your rights, please do not hesitate to contact us at (503) 227-0200.
