Family Abuse Prevention Act Restraining Orders In a Family Abuse Prevention Act proceeding, the petitioner must show by a preponderance of the evidence that (1) the respondent victimized the petitioner in an incident of abuse within 180 days preceding the filing of the action, (2) the petitioner is in imminent danger of further abuse from the respondent, and (3) the respondent presents a credible threat to the physical safety of the petitioner.
“Abuse” is defined as follows:
(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.
"Intentionally" or "with intent" means that a person acts with a conscious objective to cause the result or to engage in the conduct so described. "Knowingly" or "with knowledge" means that a person acts with an awareness that the conduct of the person is of a nature so described or that a circumstance so described exists. "Recklessly" means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists.
The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
The determination of whether a petitioner is in imminent danger of further abuse is made considering the totality of evidence heard. For example, the imminency prong may be satisfied by evidence of a past pattern of abusive behavior, now escalating, and the respondent's violation of the order before the contested hearing. The danger must be “near at hand,” “impending,” or “menacingly near.”
The “credible threat” language is included in the FAPA statutes to harmonize Oregon law with Federal law, and the evidence satisfying the “imminent danger” prong often satisfies the “credible threat” requirement.
Verbal threats, to be qualifying acts of “abuse,” must: (1) Instill in the addressee “a fear of imminent serious and personal violence from the speaker”; (2) convincingly express to the addressee the intention that the threat will be carried out and that the actor has the ability to carry out the threat;
(3) be unequivocal; and (4) be “objectively likely to be followed by unlawful acts.”
Upon finding facts with support the elements of a restraining order under this Act, the Court is generally required to award temporary custody of a child the the petitioner, and determine a parenting plan that is in the child's best interests. Stalking Protection Orders To obtain a Stalking Protective Order, a petitioner must provide proof of the following:
1. Within the two years before the request for the order, the respondent intentionally, knowingly, or recklessly engaged in repeated and unwanted contact with the petitioner or a member of the petitioner’s immediate family or household, thereby alarming or coercing the other person. This element must be satisfied by at least two qualifying contact within two years.
2. It is objectively reasonable for the petitioner to be alarmed or coerced by the contacts. This factor will consider the “totality of the circumstances” to determine whether the alarm is objectively reasonable.
To support the issuance of a Stalking Protective Order, the petitioner must show that the petitioner was subjectively alarmed or coerced by the respondent’s behavior. The word “alarm” means to cause apprehension or fear resulting from the perception of danger. “Danger,” as used in ORS 163.730(1), is a threat of physical injury, not merely a threat of annoyance or harassment." The word “coerce” means to restrain, compel, or dominate by force or threat.
3. The repeated and unwanted contact causes the petitioner reasonable apprehension about the personal safety of the petitioner or a member of the petitioner's immediate family or household. The term “personal safety” does not encompass apprehension of harms other than physical ones.
4. To be an element of stalking, speech-based contact must:
A. Instill in the addressee a fear of imminent serious and personal violence from the speaker;
B. convincingly express to the addressee the intention that the threat will be carried out and that the actor has the ability to carry out the threat;
C. be unequivocal; and
D. be objectively likely to be followed by unlawful acts. A speech based threat must be "so unambiguous, unequivocal, and specific ... that it convincingly expresses ... the intention that it will be carried out." Statements that are “more akin to an impotent expression of anger or frustration" are not qualifying speech based contacts.