If you’re in a situation where you feel your or your children’s safety is being compromised by another, there are means that can be taken to help protect you. Sadly, there are moments when a partner or family member may become abusive, and in such situations it’s important that you be able to safeguard both yourself and your family from any potential threats or harm that are being directed towards you. Depending on your situation, a Family Abuse Prevention Act (FAPA) may be a viable option to ensure you and your family’s safety.
What is a FAPA?
In Oregon, a FAPA is a legal document that must be signed by a judge, and can effectively prevent a person from engaging in certain threatening behaviors towards another—otherwise known as a restraining order. There are several requirements that you must prove in order to have a restraining order issued by the court.
- The person you want to file against cannot be a stranger. The person must either be a spouse, a former spouse, the other parent to your child, a person related by blood, marriage or adoption, someone you’ve cohabitated or are cohabitating with, or someone you’ve had a sexual relationship with at some point during the last two years.
- In order to file, abuse must have occurred within 180 days preceding the petition, or you must be able to prove that you’re in imminent danger of further abuse. Abuse is defined as: the attempting to cause, or intentionally, knowingly, or recklessly causing bodily injury, intentionally, knowingly or recklessly placing another in fear of imminent bodily injury, and/or causing another to engage in involuntary sexual relations by force or threat of force.
- You must file in the county where either party resides, however no minimum period of residence is required.
How Do You Get a FAPA?
If you’re wanting to obtain a FAPA, you’ll need to go to your county’s courthouse to fill out the appropriate paperwork, called a petition. A petition will have space for you, the Petitioner, to describe the incident or incidents that have occurred. From there, you’ll receive a date to appear in front of a judge (in most counties on the same day you file your petition) to further discuss the situation, and depending on the law that applies and the severity of the other parties’ actions, the court will decide whether or not to sign the FAPA.
These hearings are called “ex parte”, meaning the opposing party, or Respondent, won’t be required or asked to attend. They’re typically handled in person, although in certain situations they may be handled by video-conference or by telephone. However, it is possible that the judge may grant or deny orders without contact with the Petitioner. This is not common, but under certain situations it may be the most efficient option—ultimately, it is up to the judge to decide.
You may be entitled to a certain level of relief at the ex parte hearing so long as you request it and appear for the hearing (and assuming the court finds that the abuse did happen within the last 180 days and believes you to be in imminent danger). This relief may establish the following parameters:
- Preventing the Respondent from intimidating, molesting, interfering with, hindering or impeding you, menacing or attempting to do any of these offenses,
- Temporary custody or parenting time may be granted if children are believed to be in danger,
- The Respondent may have to move from the Petitioner’s residence,
- Respondent may be prohibited from entering specified premises, such as place of employment or school property,
- Ordering no contact by telephone or email.
There are certain additional discretionary protections that the court may order including the surrender of firearms, expanded no contact provisions, or division of property when necessary.
Once a FAPA is granted by the court, and served on the Respondent, he or she may choose to challenge the order by requesting a hearing within 30-days of service. Alternatively, in some circumstances the court may set a hearing without the request of the Respondent. If children and custody matters are involved, a hearing will be granted within five business days of the request. If no custody matters are involved, the hearing will be scheduled within 21 calendar days of the request.
If the Respondent does contest and request a hearing, both parties will be required to attend and defend their cases to the judge (witnesses and evidence are allowed during this hearing). If the Petitioner fails to appear, the order will likely be dropped. If the Respondent fails to appear, the order will likely remain in place. If both parties appear, the judge will be responsible to evaluate the evidence presented and decide if the FAPA order should be upheld, modified, or dismissed entirely.
What Does it Mean if a FAPA is Filed Against You?
If someone files a restraining order against you, you’ll have 30 days from when you were served with the order to file an objection. If you fail to do so, or the judge decides to uphold the order regardless, there are a few points you should be aware of:
- If you fail to object to the order within the 30-day period, you lose your opportunity contest the order. However, you still have the option to attempt to modify the order regarding custody and parenting time, your removal from the home, your restriction from certain premises, or your contact restrictions with the Petitioner.
- Once a restraining order goes into effect, it will last for at one year from the date it was issued and may be renewed with notice and an opportunity for you to object to the renewal.
- It’s your responsibility to uphold the terms outlined in the order, otherwise you could face consequences. For example: a FAPA does not technically prevent the Petitioner from contacting you, but if the terms clearly state you are not allowed to contact them, you would potentially be violating the order for something as small as replying to a text or answering a phone call or directing a third party to contact the Petitioner.
- Speaking of consequences, if you violate the terms of a restraining order, it can result in immediate arrest. You can be charged with contempt of court and serve jail time.
- A restraining order should be taken seriously due to the trickle effect it can have in other areas of your life. It can make it difficult to spend time with your kids (if you aren’t allowed to be within a certain distance from your ex, you’ll have to get a third party to facilitate transportation of your children), and can make finding a job, obtaining a gun or even traveling challenging.
The violation of someone’s rights is a serious offense, and FAPA orders are an effective way of ensuring someone’s protection. Let it be noted, a FAPA is a serious order and should not be filed out of spite or malicious intent—doing so can certainly turn around and end up hurting you in the long run. Whether you’re thinking about filing or contesting, having an attorney who understands your rights and can help protect you is critical. The attorneys at Landerholm Family Law are well versed in FAPAS, and are here to support and guide you through the process—we will advocate for your better and brighter tomorrow.