Accused and served with a F.A.P.A. (Restraining) Order
Accused of Domestic Violence
Portland, Oregon Attorney / Lawyer for those Accused of Domestic violence / Domestic Abuse and Served with a Restraining Order
If you have been accused of domestic abuse, you are probably feeling overwhelming stress. If you have been served with a restraining order, take a deep breath, finish reading this page and think everything through before you act.
What is most important?
- Follow the order and do not call the petitioner, even if the petitioner is contacting you first. If you violate Family Abuse Prevention Act Order, also known as a Restraining Order, you may find yourself in jail, even if the person who filed the restraining order against you contacts you first. Do not fall for the jail bait of calling the petitioner.
- Follow the order regarding turning over any weapons.
- Breathe deeply. You have a right to contest the order.
The reason you are in this situation may be for a variety of reasons:
- Sometimes someone loses their temper and badly hurts someone they love.
- Sometimes the wrong person is arrested.
- Sometimes both of you are arrested.
- Sometimes someone makes a false accusation to get revenge.
- Sometimes someone makes an accusation to the police and then recants when the district attorney’s office presses charges against their loved one.
- Sometimes nobody calls the police and sometimes the police are called by one of the following:
- The victim
- The neighbor
- The abuser
- Sometimes there are witnesses. Sometimes, there are none.
- Sometimes the police make an arrest when the victim does not want anybody to be arrested
Bad Motives
Sometimes you, as the respondent, messed up and you need a damage control strategy so you can eventually exit this nightmare and move where the grass is greener.
At other times, the petitioner has bad motives: When one partner seeks to end a relationship, they may act vengefully by making false and retaliatory accusations of domestic violence to secure additional compensation, custody of children or to punish a former partner for perceived wrongs during the relationship. Sometimes the respondent is the victim of a vindictive former partner who knows how to manipulate the system by being the first to the courthouse to obtain a F.A.P.A. (restraining) order for the respondent to immediately move out of the home. At other times, it is an expedient way to evict the respondent without having to jump through the hoops of the Oregon Landlord Tenant Act.
Problems with a Restraining (F.A.P.A) Order
Even if the restraining is contested and ultimately not upheld by the judge, the temporary restraining order can wreak havoc in somebody’s life. If you lived with the petitioner, you have probably already been evicted and you had about 20 minutes to grab only your most essential belongings, leaving the rest behind. You have either found temporary housing or you are newly homeless. You are probably wondering how to get your stuff back and the petitioner might even be blowing up your phone with text messages and phone calls. You might wonder if you can trust the petitioner not to call the police if you respond. If you are wrong, you took the jail bait.
A civil domestic violence restraining order will appear on criminal background checks far into the future. Even if the judge dismisses it, the fact the someone filed a F.A.P.A. order against you will be permanently on your record. On the other hand, had you actually been convicted of something like harassment, you would eventually be eligible to have your record expunged.
If the restraining order is upheld, you may be facing loss of potential employment, housing, professional credentials, teaching licenses and security clearance. Losing a contested restraining order case also impacts one’s right to bear arms.
We help those accused strategize a livable resolution.
Frequently Asked Questions about Contested Restraining Orders
by those Accused of Domestic Violence in Oregon (The Respondent to a Restraining Order)
How long do respondents have to contest a restraining order?
A restraining order (FAPA order) may be challenged by the respondent (the accused.) In many cases, the person restrained should contest (challenge) the Restraining Order and request a hearing for such purpose. If the respondent does not request a hearing within 30 days or the date stated on the paperwork served, the respondent loses his/her rights to a hearing and the Restraining Order stays in effect for a period of one year.
Can a restraining order last more than a year? The petitioner can renew the restraining order for subsequent years, if the Petitioner files a motion and the judge grants the petitioner’s motion.
If I win, can the Temporary Restraining Order be Expunged?
No.
Can my rights to carry a gun be affected by a restraining order?
Yes. Losing a restraining order hearing can affect one’s right to bear arms and thus it is important to seek legal advice prior to making a decision of whether to contest a restraining order. 18 USC 922(g)(8)
Why may a respondent want to challenge a Restraining Order when he/she doesn’t want contact with the petitioner anyway?
Those who are restrained always have a Restraining Order over them and are always “at risk” of having the state, their spouse, or significant other allege that the Restraining Order has been violated, even if it was the spouse or significant other that initiated the contact. The state can enforce a restraining order, even if the significant other or spouse no longer cares if the restraining order is in place. If this occurs, the restrained person will be arrested and likely sit in jail for approximately 2 weeks until trial or unless bail is posted. Sometimes persons accused of domestic violence will be released on their own recognizance with an agreement that there be no contact with the alleged victim.
Are there any options other than a trial?
Another option to trial is a settlement of some sort. You will likely need an attorney/lawyer in order to negotiate a settlement due to the fact that a restraining order is in place. Due to the risks of losing everything at trial when the evidence is stacked against the respondent, it may be advisable for the respondent to negotiate a no-contact agreement, which has less risk involved. If the respondent damaged any property or caused doctor bills to be incurred, the respondent may want to make a monetary offer to the petitioner. Sometimes the respondent just needs to figure out a way to obtain his/her property, which can be worth a lot. Every settlement is different and needs to be customized to the parties involved.
What if my abuser has taken out a restraining order against me?
This is actually a very common situation. These are called “dueling restraining orders” and are most frequently seen in custody battles. You are not prevented from obtaining a restraining order against a person who is actually abusing you, but you must be careful not to be seen to be using the restraining order as a way to harass or contact a person who has a restraining order against you. A lawyer is very helpful in these situations.
What if my abuser has taken out a restraining order against me?
This is actually a very common situation. These are called “dueling restraining orders” and are most frequently seen in custody battles. You are not prevented from obtaining a restraining order against a person who is actually abusing you, but you must be careful not to be seen to be using the restraining order as a way to harass or contact a person who has a restraining order against you. A lawyer is very helpful in these situations.
Is there any risk of criminal charges in addition to a restraining order?
- If a respondent testifies at a restraining order hearing his/her testimony can later be used at a criminal trial.
- Assault and Harassment are commonly charged against a party if a police officer is called to the home. If the officer finds evidence of violence, someone will likely be arrested and the District Attorney will likely charge one or both parties with Assault in the Fourth Degree and Harassment. These two charges are both misdemeanors. However, under the following circumstances you may be charged with Felony Assault in the Fourth Degree:
- Children are present
- You have previously been convicted of assaulting this same person
- You have three previous Domestic Assault Convictions
What are the options if you are charged with assault and/or harassment for the first time?
Diversion
To enter into Diversion, you must plead guilty to the charge. The Judge does then accepts your plea of Guilty but does not “sentence” you. The judge then diverts the case and you enter a Batterers Specific counseling program. During this Program, you must agree to abstain from the use of alcohol and drugs and periodically provide a urine sample for testing. In addition, you agree to “cooperate” and “participate” in the counseling. Further, you can have no contact with the victim, without the approval of your probation officer.
Risks of Diversion: Once you complete the requirements of the Diversion Program, the criminal case will be dismissed and you will not have a conviction on your record. However, if you violate the agreement, the Judge will likely accept your previous plea and sentence you. At this time you will have a conviction on your record. To make matters worse, your sentence will usually require that you complete the same Batters Specific Program you just failed. If you fail the program a second time, the Judge can end your probation and give you a jail sentence. It is easy to violate the terms of diversion if you are not careful. If you use alcohol or drugs, fail to contact your PO, or participate in the counseling in the manner that your counselor sees fit or have contact with the victim, you will likely be found to have violated the terms of diversion. If you are not a particularly organized person, then you might want to consider a trial or have your lawyer try to negotiate a jail sentence only.
Trial: Some individuals enter diversion even though they are innocent because they do not want to risk a conviction if they take the case to trial. Sometimes, however, trial is the best option. If one fails to jump through all of the hoops of the diversion program, a conviction is most likely anyway.
Where can I go for counseling? Try the men’s resource center; it is for women too.
What if the Petitioner who obtained a restraining order against me keeps calling me and wants to meet with me?
Don’t. It is a trap. Avoid calling the person who obtained the restraining order against you, even if that person begs you to call him/her. If that person tries to call you or see you in person, hang up the phone, walk or run in a different direction. Even though the person who sought the restraining order is the person who initiates contact, you can still be subject to arrest. Some alleged victims chase their alleged perpetrators around with the restraining order in order to get them arrested. They are using the restraining order as a sword and not a shield. If someone sought a restraining order against you, let that person live with their decision.