The information below is from the Oregon State Bar's Tel-law service, a collection of recorded legal information messages prepared by the lawyers of Oregon. In addition to being online, the Tel-law service is accessible by telephone at 503-620-3000 or toll-free in Oregon only, 1-800-452-4776. A touch tone phone allows direct access 24 hours a day, 7 days a week. To receive a free Tel-law brochure listing the subjects available call the Oregon State Bar Order Desk, 503-620-0222, ext. 0.
The following information regarding restraining orders and domestic violence is brought to you as a public service by the lawyers of the State of Oregon. This topic explains whether or not you can get a restraining order, and what it can do for you. The material presented is intended to alert you to possible legal problems and solutions.
If you have been a victim of physical abuse or threatened abuse, you may be able to get a restraining order under the Oregon "family abuse prevention act." This law allows you to obtain protection from domestic violence without having to file for a divorce or legal separation, although you can do so if you wish. Persons at least 65 or people with disabilities are eligible for protection under this law, but also for additional protections under the Elderly and Persons with Disabilities Abuse Prevention Act, described in Protection of Elders and Disabled Adults from Violence and Emotional Abuse..
You can get a restraining order under the Family Abuse Prevention Act if you are the victim of abuse as the law defines it. The law defines "abuse" in several ways. "Abuse" includes someone trying to physically hurt you, actually physically hurting you, making you objectively fearful of serious physical injury, or making you have involuntary sexual relations by force, or threat of force.
With two exceptions, the abuse must have occurred within the last six months. The exceptions are if the abuser has lived more than 100 miles from you, or if the abuser has been in jail or prison during the last six months.
The abuse must have been committed by a person who is either your spouse, your former spouse, the parent of your minor child, an adult to whom you are related by blood or marriage, the person with whom you are cohabiting, or the person with whom you have cohabited sometime within the last two years. Cohabiting generally means living in the same household in a sexual relationship. The law does not require that you and the abuser be members of the opposite sex. You must be over the age of 18 unless the abuser is over 18 and is your spouse or former spouse, or someone with whom you have been in a sexually intimate relationship.
To get a restraining order, you must file certain documents with the court and follow certain procedures. The system is designed so you can obtain a restraining order without the assistance of an attorney. Go to your local county courthouse, where the court clerk will have restraining order forms and information on getting your own restraining order. There is no charge or fee for filing a restraining order or for having it served. You may have to talk to a judge to get the restraining order.
You may have gone to a safe place that is not known to your abuser. If so, you may want to use a so-called "contact address"-- that is, an address other than where you are actually staying—for your address in the court papers you file. If you decide to do this for your safety, you also are agreeing to allow your abuser to serve his or her court papers on you at that address. You must check for court papers at that address regularly so long as you list that address with the court. That is the address where your abuser must send copies of anything he or she files, in the same case or another case. If you miss a court deadline because you have not checked for court papers at that location, the other person will win whatever he or she was asking for in the papers delivered to that address.
Often, a restraining order is obtained in the course of a divorce or legal separation, but you do not have to file for divorce if you do not want to; you can just ask for the restraining order. However, if you want to combine a restraining order with a divorce or legal separation, you probably should see an attorney for advice.
What does a restraining order do? It is a court order that orders the person who has abused you not to do it anymore and to stay away from you. If you get a restraining order, you may also be able to get an order requiring the abuser not to molest or interfere with your minor children, giving you temporary custody of any children you and the abuser have, and determining what kind of parenting time-- if any -- the abuser should have with the children. The order might also require the abuser to move out of your home, or require the abuser to stay away from your home, school, place of employment, or your children's day care provider. The court could also order that a police officer "stand-by" for probably no more than 15 minutes while you (or the abuser who has been ordered to leave) remove essential personal items from the home. A restraining order cannot be enforced until a copy has been legally served on the abuser. The abuser cannot be found in contempt of court for violating the order unless he or she knew there was an order. The sheriff's office of the county where you obtain the restraining order will normally serve the restraining order on the respondent within 48 hours, unless you make other arrangements with it.
A copy of the restraining order and proof that it has been served must be filed with the local sheriff's office. It will be entered into a statewide police computer so all Oregon police agencies will know it is on file. It is enforceable all over the state.
A restraining order is good for up to one year, or until another court order changes or replaces it if that happens first. If the restraining order has been in effect for almost a year, you can ask a judge to renew the order at that time if you can show you would reasonably fear further acts of abuse by the respondent without the order.
Once the abuser is served with the order, he or she can ask for a court hearing to challenge the whole order, or parts of it. The abuser must request the hearing within 30 days of being served, and the hearing must be held within 21 days after the court receives the request for hearing. If temporary child custody is an issue, the hearing must be held within 5 days after the request. In addition, if there are exceptional circumstances that would affect custody, either party can get a hearing within 14 days. Even after the 30-day period, if custody or parenting time is an issue in the case, either of you can request a hearing at any time to review those provisions. You must attend any hearing scheduled and be prepared to present any evidence you have, including your own testimony and that of any witnesses. However, some judges will take testimony of the parties only.
If the police are called to make an arrest, they are required by law to do so if they have "probable cause" to believe that the restraining order has been violated. The restraining order also sets a bail, usually $5,000, for violations of the order. If the restraining order is violated, you should call the police and have the abuser arrested. After being processed at the jail, the abuser could be released without posting bail if he or she appears to be a good risk to reappear in court. A condition of the release will probably be if the abuser does not have any contact with you. Otherwise, the abuser will be held in jail until 10 percent of the bail is paid, or until the bail is lowered in a court proceeding, or until a hearing has been held on whether or not the restraining order has been violated.
Once the person who has abused you is arrested for violating the restraining order, a court hearing may be set to have the person found in "contempt of court" for violating the restraining order, or criminal charges can be filed.
If the person is found in contempt of court, the maximum punishment could be a fine and/ or up to six months in jail. Other possible punishments could be a warning, probation, suspended sentence, or a sentence of less than the maximum. Your local district attorney is required to represent your interests at the contempt hearing if you cannot afford to hire your own attorney.
If you do not have a restraining order and you are the victim of domestic violence, you should call your local police agency. If the police are called to the scene and have probable cause to believe abuse has occurred between spouses, former spouses, or adults who are living together or who used to live together, the police are required to arrest the abuser. The police will give you information on how to obtain a restraining order in your county. If your abuser is arrested, you should go to the District Attorney's office the next working day, first thing in the morning, to file a criminal complaint against the abuser, and you may want to get a restraining order too.
Some counties also have shelters for people who have been abused. Contact your Legal Aid office or an information and referral network in your area for more information.
Although Tel-Law information is periodically reviewed, it is important for you to realize that changes may occur in this area of law.
This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney. If you do not have an attorney, the Oregon State Bar Lawyer Referral Service can help you. Online Lawyer Referral Service information and a fill-in form is available. Or you may contact the service by phone: The number to call from the Portland area is 503-684-3763 or toll-free from anywhere else in Oregon, 1-800-452-7636.