In this podcast episode, we sit down with Pacific Cascade Legal's Partner, Will Jones, to discuss the purpose of a Family Abuse Prevention Act (FAPA) restraining order, how long they can last, and the restrictions they can impose.
If you would like to speak with one of our attorneys, please call our office at (503) 227-0200, or visit our website at https://www.pacificcascadelegal.com.
Disclaimer: Nothing in this communication is intended to provide legal advice nor does it constitute a client-attorney relationship, therefore you should not interpret the contents as such.
In this podcast episode, we sit down with Pacific Cascade Legal's Partner, Will Jones, to discuss the purpose of a Family Abuse Prevention Act (FAPA) restraining order, how long they can last, and the restrictions they can impose.
If you would like to speak with one of our attorneys, please call our office at (503) 227-0200, or visit our website at https://www.pacificcascadelegal.com.
Disclaimer: Nothing in this communication is intended to provide legal advice nor does it constitute a client-attorney relationship, therefore you should not interpret the contents as such.
Intro:
Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.
Steve Altishin 0:32
I'm Steve Altishin, Director of Client Partnerships here at Pacific Cascade Legal. I'm here with our Lead Attorney, William Jones, to talk about how long a FAPA restraining order lasts and what limitations they can impose. Hey Will, how are you doing today?
Will Jones 0:47
Mot too bad. Steve, another sunny day here, which is nice, even in September.
Steve Altishin 0:53
September is usually the best, best of the best is in September. So let's start with the start. How does a FAPA restraining order start, and how long does it normally last?
Will Jones 1:12
Let's separate your topic into two kind of distinct areas. One would be process. The other one would be what kind of leads to a restraining order? What are the facts that you would need to prove? So process wise, it's fairly simple. So someone wants a restraining order they run down to the courthouse, they go to what's called ex parte and most courthouses have a kind of a dedicated FAFSA ex parte docket. So you run in there, you fill out the FAFSA forms, you take them to the judge, the judge looks at him and goes, Hey, this is enough to constitute a restraining order restraining order it gets issued. Right. So restraining order once it's served on the opposing party is in effect, right. So it is their opposing party, whoever their restraining order was served on can request a hearing to do that, within 30 days, hearing happens, you see what the facts are and determine if the restraining order is held. The big key component of that is once the restraining order is issued and served, it's in place, even though you haven't had a hearing yet. Right it is in place. It is active in his in leads, which is the law enforcement database. So the police know that it's there, it's there, even though you haven't been heard as the respondent, factually going the other way, what you have to put in those forms. And what's required in order to get a family abuse Protection Act restraining order, is you have to have an incident and be of abuse within the prior 180 days. So six months, usually it's physical, there can be some verbal threats, but then you kind of pull in the First Amendment, and there's some protections that exist there. So those are a little bit more rare, but they can't happen. And you have to have reasonable fear of further abuse or credible threat of further abuse. Continuing on. So just one incident of abuse and no more contact. That's not a continuing threat, right. It doesn't continue to exist. So those are the things you have to prove to get a restraining. So that's process and then factually, that's kind of what you have to allege in order to get a restraining order.
Steve Altishin 2:58
So when is the hearing held? And what if somebody just ignores it?
Will Jones 3:06
Well, probably not a good idea to ignore stuff that comes from the courthouse. It's just general legal advice, if you're interested in it. So somebody petitions a court and get a restraining order granted an ex parte right, they get served on the respondent, that pretty party who's being restrained by the restraining order. In that restraining order, there's going to be instructions of how to respond, you have to request a hearing within 30 days, if you don't request the hearing within 30 days, you cannot have a hearing it's over. Right, you kind of missed your window to respond. So that restraining order is going to be in effect for the entire year, unless it's updated. Right. So it can be renewed, but you have to request the hearing within 30 days, there are some exceptional circumstances hearings that can happen faster. So if child custody is an issue, automatic hearing within five days, right, which is always difficult for attorneys, because those notices get mailed to people, they get them within three days, they call the attorney the next day. Now everybody's a little bit panic, because there's not a whole lot of time to get ready for that. So if custody is initial five days parenting time, they usually book a hearing within 14 days. So if the restraining order is interfering with parenting time, things like that they become a little bit faster. If neither of those are an issue, you have to request the hearing, you have to do it within 30 days where you lost your right to contest.
Steve Altishin 4:22
If the respondent who says I didn't do this or whatever. The judge says, Yeah, you're right. What happens to that FAPA restraining order?
Will Jones 4:33
So a lot of restraining orders when people go to ex parte and I don't, I don't have statistics, but there are quite a few of them because we see them in family law. People go to ex parte they fill out the forms and the judge goes, this doesn't rise to the level of restraining where I'm not even an issue with right now. Right? So they don't even get it granted on the front end. If it does get granted served on the other party, they request a hearing. You end up in front of a judge either saying look, there was no abuse within the prior 180 days. Is, or there's no continuing threat here. There's no reasonable fear of anything that's going on here. And if at the hearing you show there's no reasonable fear, you show that there was no abuse judge is going to dismiss that, say restraining orders gone, we're done, it's out of the way.
Steve Altishin 5:14
So what can be in a FAPA restraining order? What kinds of orders can the judge make, any requirements, any limitations? What can be included in that order?
Will Jones 5:25
All kinds of stuff. So the primary piece of the restraining orders we're trying to get the order itself is trying to keep the parties apart. Right. So if you look at, say, the statewide forms, they say, you can't be without 150 feet, right. So that's kind of the standard, always in a restraining order, don't go near this person. There's also spots in there. And all kinds of things can happen within that say, Hey, you have to stay 150 yards away from this address, right? Usually place of employment, somebody's home, those things happen. And there's actually a part of the restraining order where you can request temporary monetary assistance, doesn't get granted all that often. But you can request it in there. And every now and then it does get granted. He works. She doesn't she can't pay the rent. So maybe you asked for them here, they can outline some custody and parenting time issues. Not a lot of them, because obviously, we have other mechanisms to deal with that. But it can deal with a few of those things. The kind of key component in the big piece of a restraining order, specifically, if I have a restraining order is no contact, the one that kind of irks people and gets people in trouble all the time, that includes third party contact, right, which is always a little odd as an attorney, because what it says is you can't tell your buddy to go tell that person to do something, right? Hey, can I get my keys? Hey, can you go tell him to get my keys, that's a violation of door, right, because you've asked a third party to contact, it is no contact. As attorneys, we kind of work our way around that just because we're officers of the court. So I'm representing somebody who has a restraining order, let's say, the court doesn't have any problem with me contacting them, because I'm trying to resolve the case in some way. I'm trying to figure out what's going on all those things, even though it's technically third party contact. But as attorneys, we kind of have to have that. If not, we couldn't talk to the other party. We don't know if we can resolve the case, we don't have to get ready for the case. So it's really a no contact, don't do anything, stay away. And also, as I mentioned earlier, it goes into leads, right? So violation of a restraining order, you're going to record it, maybe just for the night, maybe you got a post bomb, maybe you got to do those things. But the police will come and pick you up if somebody calls. Because they run your license, they look at your ID you get your name, they type it into leads and go oh, restraining order, let's go. Right. And I've never spent a night in jail, but I'm told it's not very nice. So you want to avoid that if you can.
Steve Altishin 7:44
So how long does this thing last? If a judge--can they say 30 days, 60 days? Or is there like a time frame that those go on?
Will Jones 7:52
Interesting question. And it's interesting because the law is changing, possibly, right? So standard restraining would last a year. If you ask for a hearing and you the respondent loses that hearing and lasts for a year, you don't contest it, it lasts for a year, they can be renewed, and you have to renew them every year. Right. So in a renewal, you're basically saying, look, there's still reason for me to be fearful of this. There might be abuse in the future. Here's why. Right, so you're gonna have a renewal hearing every year. The reason I say it's an interesting question is the Senate I believe so far, I don't think it's gone through the house yet. But the Senate voted on believably heavily into turning those into two year forks instead of one. That's still not the law yet. It's only gone through I believe the Senate it might have been the house. I can't remember a couple of weeks when I was reading that stuff. But it's basically half a law right now. And it sounds like since it went through so well, in one side, it looks like it's gonna go on the other side. But that's not the law yet. Still one year, but the government is looking at turning those into two. So that may change.
Steve Altishin 8:56
And the judge doesn't have, this isn't like a sentencing where there are guidelines? This isn't a guideline for a judge, the judge can't say at the hearing, 'Okay, this is gonna last three months'?
Will Jones 9:08
Now, the statute says a year, right. So that's kind of the way it is, doesn't mean on the other side of things that it can't be changed a little bit, right. So you'll see some restraining orders where it's like, Lou, I need this order. Everything's out of hand. Well, now that I have the order, this isn't really working, because now we can't transport the kids. Right? We both want to be at the basketball game. So then you can run into court, you can kind of negotiate that a little bit and modify the restraining order to say, look, it's fine if we're in a public place, like he can go to school, even though I work at the school, he's going to pick up the kids, right? So those things can be kind of tailored and a judge can tailor those at a hearing if they need to. But your standard year is always there.
Steve Altishin 9:51
Got it. Got it. And finally, I guess on that, to wrap that up, if the person who brought it, you know, the victim, wants to stop it six months into it, can they do that?
Will Jones 10:06
Sort of. That's always the fun thing when you talk to an attorney, maybe! Usually yes, right? Judges, courts are almost always keen to say, look, if that's what you want to do, no problem, we'll sign off on it. But they don't have to. Because every now and then you end up in the situation where it's, let's say, the person who's being restrained is maybe a little bit controlling, maybe a little bit mean, you could say evil, maybe abusive, which is why we're in this restraining order land anyway. So if say, the person who got the order goes into court says, Look, I want to modify or drop this, a judge is going to look at them and go, Is this a smart idea? Do I think that you're being manipulated in some way? Is this safe? Because you came to me six months ago, and says, Oh, I'm being abused, please keep this person away from me. And now you've changed your mind. So the judge retains the ability to go, no, no, no, no, no, that's not what we're going to do here. I don't feel comfortable in this situation, I'm going to leave the order there. If you choose to call the police when you see him or not, I can't control that. But I'm gonna leave the order here. Because I don't feel like this is safe for you. Whatever reasons you're giving me I'm not going to do it. So the judge still has discretion to go, I don't want to, but most of the time they go well, give me a good reason. Okay. Give me a good reason. Not a big deal.
Steve Altishin 11:27
Can the person who is the victim, being the protected person, violate an order? I mean, what if they go and initiate the contact? Is that still on the person who has it against them to get away from them?
Will Jones 11:47
So it's a little tricky, which is, anybody who comes to me that says, Look I got served with this restraining order, you run as far away as you can. Because say a sheriff shows up. At some point somebody calls them whatever it is. It's the restrained party's name who is in leads, right? So the sheriff is going to arrest the person who has the order against them, because they're within the distance and it shouldn't happen. Now the party who got the order, shouldn't be doing that. But they're not in leaves. So the sheriff doesn't have any reason to arrest him. Right? You get a text message from somebody who's got a restraining order against him. Don't respond to the text message, that's contact, you're in leads, you're gonna get arrested, not the other person, even though they're baiting. Right. Because what the sheriff doesn't really want to do is hear the case. Oh, she texted? Nope, you're in leads it cuffs on let's get out of here. I have other things to do. So even if the party with the order is reaching out, don't go the other way. Right. They're not gonna get arrested, the rescreen parties.
Steve Altishin 12:53
You said it lasts a year. And maybe it's going to be two years. But for now, does it just end? Does it just end on its own? And I think you said it can be renewed.
Will Jones 13:06
Yeah. So at the end of the year, assuming it's not renewed, right, so someone has to request for renewal, if you want it to continue more than a year. Obviously, there's a hearing that can be accompanied with that the restraining party will get notice. And then they can object or not object, whatever they want to do. If nobody moves to renew it. It just gets dismissed. It's done after a year. It's always wise, if you can to have somebody jump on a court database, maybe call the court maybe call the police to go look, is this still in leaves, because it's paperwork. And there's a lot of paperwork that exists in the world. And if your name is still in leads, and says restraining order, even though the court may have dismissed it, if it didn't come out of leaves the sheriff just gonna go get some leads arrest. So it's always good to double check on that after your year.
Steve Altishin 13:51
Got it, got it. Well, thank you so much for sitting down to talk about how long the FAPA restraining order lasts and what limitations that it can impose and how long it actually can go, which can be more than the original year. So that's great news. And I want to thank you for that.
Will Jones 14:09
No problem Steve, happy to help. I hope this helps somebody out there. Obviously, if anybody's got questions, our phone number's easy to find, happy to help.
Steve Altishin 14:15
Exactly correct. And everyone else, thanks for joining us. If anyone has further questions, as Will said, feel free to contact our firm, we can get you connected with an attorney who can help. Until then, stay safe, stay happy, and be well.
Outro:
This has been Modern Family Matters, a legal podcast focusing on providing real answers and direction for individuals and families. Our podcast is sponsored by Pacific Cascade Legal, serving families in Oregon and Washington. If you are in need of legal counsel or have additional questions about a family law matter important to you, please visit our websites at pacificcascadelegal.com or pacificcascadefamilylaw.com. You can also call our headquarters at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering legal solutions important to the modern family.