Oftentimes in divorce cases, restraining orders come into play. In this podcast, Beaverton family lawyer Laura Schantz answers the most commonly asked questions about domestic abuse and restraining orders, including: how to get a restraining order in Oregon, what protections restraining orders provide, the importance of evidence in a restraining order hearing, and more. She provides advice to both victims of domestic abuse as well as those who have to defend themselves against false allegations.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Laura Schantz, Family Lawyer & Mediator
Laura Schantz is the founder of Schantz Law, P.C. in Beaverton, Oregon. She brings more than 20 years of experience in helping her clients find creative solutions to complex financial issues – including asset division, dividing farm property, spousal support, and child support. She is an experienced family lawyer and offers mediation to resolve sensitive issues. To learn more about how Laura can help to protect spouses and children experiencing domestic violence, or to defend against untrue allegations of abuse, go to www.oregondivorceattorney.com.
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Read the Transcript of this Podcast Below.
How does a victim of domestic abuse get a restraining order in Oregon? What do they have to prove to obtain one?
In Oregon, we have a statute called the Family Abuse Prevention Act (FAPA). Basically, it’s only available for family members; therefore, the person has to be your spouse or domestic partner or your former spouse or domestic partner, or you could be adults related by blood, marriage, or adoption. That’s when it’s like a father-and-son type situation, or you could be cohabiting in a sexually intimate relationship or you could be the parents of a child together.
That’s kind of who you have to be as parties to a FAPA restraining order, and then you have to prove that within the last 180 days, which is the last six months, that this person caused you bodily injury, attempted to cause you bodily injury, placed you in fear of imminent bodily injury, or caused you to engage in involuntary sexual relations. Those are the things that you have to prove. The final thing you have to prove is that you’re still in imminent danger of further abuse by that person, which is why you need the restraining order.
What protections does a restraining order provide?
A restraining order protects you by ordering that the other person cannot come to your place of work, your house, sometimes your children’s school – or be within a certain number of yards away from you – and that they’re not to contact you in any manner. It basically protects you from that person contacting you.
If your client has had a restraining order taken out against him or her, how can you defend that person if they believe the allegations are not true?
In divorce cases, we often have restraining orders that come into play. It happens quite a bit, and I’ve been on the side of both: the person who has gone to get the restraining order or the person who had a restraining order against them. You really have to sit down if it’s the person whom someone has filed a restraining order against and really talk to the person about the incident that occurred – or the several incidents that arose – the reason for the restraining order, and go through the facts and that person’s side of the story, see if there are any witnesses, if the police were called, and if the police would be a witness. I kind of figure out – based on my years of experience as an attorney and going to trials sometimes on contested restraining orders – whether my client has a chance of defending against the restraining order, and then I just kind of tell them what their chances are. Sometimes even if chances are slim, my client wants to go forward with the hearing, but other times the client may decide that they’re not going to be able to prove that it didn’t happen, because it usually comes down to one person’s word against the other person.
For a while I was a pro tem judge in Washington County, Oregon, and I had the restraining order docket so I was the judge who had to hear the stories. If the wife says, “He held a gun to my head and said he was going to pull the trigger,” and the husband said, “I didn’t have a gun and I didn’t hold the gun to her head,” then you as a judge have to decide who you’re going to believe, and it’s hard. That’s kind of what you do with your client who says that they did not do anything or that the allegations aren’t true. You kind of see what you think a judge might do and give them your best opinion.
What happens in a hearing contesting a restraining order?
Let’s say that your client could potentially prevail and that they have not met this criteria of causing bodily injury or attempting to or placing the person in fear, and you go to court. I went to court on a restraining order just a couple of weeks ago. It happens several times throughout the year that you’re either trying to obtain a restraining order to keep it in place or try to get it dismissed because you’re representing the person who doesn’t want the restraining order. It’s just a trial where your client is going to testify about what happened at the incident and why it was not abuse. They’re going to bring a witness, if there is any witness to anything usually surrounding that incident, the police or a police report, and just hopefully proving to the judge that whatever happened on that day did not rise to the level of needing a restraining order.
Is it important to provide evidence regarding a proposed parenting plan in a restraining order hearing?
Yes, that’s really important because sometimes if I represent a party who I don’t think is going to prevail and that the restraining order is going to be kept in place, I still want to then make sure that my client is going to get parenting time with the children, because the restraining order will provide for custody and parenting time for the children and it will also provide for a way to have contact with the other parent just to arrange the parenting time. It could be a variety of different ways.
If your client is, let’s say, the father, and you think that the judge is probably going to side on the mother’s side, that there was some sort of physical incident and the restraining order is going to be upheld, he still could be a great dad and have tons of time with the kids. You could provide evidence of that and you could have witnesses come to testify not about the restraining order, but just about his parenting and what kind of dad he is and how involved he is. You may be able to at least prevail for him on getting him a lot more parenting time than maybe is in the original restraining order.
What types of provisions can be modified in a restraining order?
Parenting time provisions are often modified. Let’s say you have a restraining order and you have a certain parenting plan for several months, and then after a while it seems that the parenting plan needs to change or should change. You can go to court and request a change, or the parties can agree to change the parenting plan, which then needs to be put in writing and signed by the judge. Even if it’s a parenting plan violation, the police are required to take you to jail if you’ve violated it. It’s something that you have to be very serious about as an attorney. If there are any changes, they need to be modified in writing and signed by the judge, and you have those to show the police if for some reason you and the other parent go sideways and they call the police on you.
The actual restraining order itself can potentially also be dismissed later if the other party decides down the road that they’re now ready to have it dismissed. That has to basically be the decision of the party that obtained the restraining order. Sometimes, let’s say, both parties go to the same church and you could write clauses about what services one person is going to go to or what services the other person is going to go to. Or you could say that both parents are able to go to the same basketball games, but they just have to sit so far away from each other. There’s lots of things that you can change if you forgot to put it in, in the original restraining order.
How can you help a client to determine whether he or she should try to obtain a restraining order?
That’s a very personal decision, and you don’t want to escalate the divorce with a restraining order if it’s not the right thing to do. On the other hand, I would never tell someone who’s truly in fear, feels that they’ve been abused, and feels very strongly about it not to go get a restraining order, because abuse is very serious and I take it seriously. I’ve had actually a couple of guys as clients that are big guys who have cried in my office about spousal abuse by women, and it’s kind of weird to me, but it does happen and they typically are not going to get a restraining order. You can still make sure that they are protected now that they’re separated, and you can still protect your client that way. The abuse might stop without a restraining order. That’s sort of what you weigh. Sometimes someone has abused your client, but that person has, let’s say, moved to California. There’s not a real likelihood maybe then that the abuse is going to continue. You can make decisions not to file a restraining order if you think that it’s not likely to continue and that the person is safe. But if it’s a recent incident that occurred where your client really is afraid, then that’s when I would say, “Go file your restraining order,” because I want my clients to be protected.
Are there ways to resolve disputed restraining orders without a contested hearing?
Yes, there are. One of the ways that I have resolved a restraining order many times is to agree to do what’s called a “restraining order in the divorce case.” Let’s say the wife obtained a restraining order and the husband suggests to put a mutual restraining order in the divorce itself, which says neither party can contact the other person or go to their house, or be anywhere near them, and then let’s dismiss the restraining order. People do settle cases doing that, and one of the reasons to do that is a restraining order goes on someone’s record, and it could affect their job. Usually the job and the employment is really important to the family and to the children, so it might be a smart thing to do for that situation.
There’s other times when absolutely the abuse is something that’s so serious that you just absolutely want the full protection of a FAPA restraining order, which means if you call the police, the other person will be arrested if they violate it versus if it’s a restraining order in the divorce case and the FAPA restraining order is dismissed. Then if the other person violates that kind of restraining order, the only thing you have for recourse is contempt of court.
How long do restraining orders last? Can your client renew a restraining order after the time has run out?
Restraining orders last for one year. Typically after a year is up, the parties have moved on and the restraining order is not necessary. There’s some clients that want to renew it the next year because they say they still feel afraid, and I’ve been on both sides of that: the person that wants to renew it or the person that doesn’t want it renewed and wants it to be done and over with and off their record. Typically, if your client or the other party has violated the restraining order during that one year, if they have contacted the person, come to their house, texted them, sent them a letter, done anything to violate it in that one year and tried to contact the other party, then that is a good reason to renew the restraining order because they have obviously not taken it seriously and they still obviously have issues.
But if the parties have gone their separate ways and no one has ever violated it or contacted the other person the entire 365 days, then it’s less likely that a judge is going to renew the restraining order.
How does domestic violence affect children, and does domestic violence have an effect on custody and parenting time in divorce cases?
Yes, it does. Domestic violence seriously affects children. There’s been a lot of psychological research into this. All of the experts agree that it’s seriously damaging to children, makes them not feel safe, makes them potentially have PTSD depending on how extreme the domestic violence is or even depending on what kind of a child it is. Some children can roll with the punches more with yelling, screaming and fighting, and other children don’t.
But in Oregon, one of the factors that a judge is required to look at when determining which parent is going to get custody is domestic violence, and it’s recently in the last few years we’ve taken a more serious look at this because it seems to be that many of the custody study evaluators have not taken domestic violence seriously, have sort of brushed it under the table. We’re really asking them to go back and take it seriously, meaning that the person that has committed the domestic violence, if it is determined that it truly happened, that the person really should not be getting custody even if they are now suddenly the better parent.
Oftentimes you’ll go to a trial, let’s say on a restraining order, and one person is looking dishevelled and confused – doesn’t know what’s going on, crying, looks like a mess and a wreck – and the other person looks put together, very confident, knows exactly what to say, sounds very convincing. Typically the latter is the abuser and the former is the abused person.
That’s what domestic violence does, and we as attorneys need to be very careful on how we handle this and we do need to take it seriously, but we also, on the other hand, have to make sure that it’s not used as a weapon in a divorce case to obtain an advantage. Good attorneys are going to be very careful around this very sensitive area of domestic violence.