Modern Family Matters

A Guide to Family Abuse Prevention Act (FAPA) Restraining Orders

December 15, 2020 with former Judge, Ken Stewart Season 1 Episode 19
Modern Family Matters
A Guide to Family Abuse Prevention Act (FAPA) Restraining Orders
Chapters
Modern Family Matters
A Guide to Family Abuse Prevention Act (FAPA) Restraining Orders
Dec 15, 2020 Season 1 Episode 19
with former Judge, Ken Stewart

Former Judge, Ken Stewart, discusses how to obtain a FAPA, what you can expect from a FAPA hearing, and how these restraining orders are enforced.

To learn more about how Landerholm Family Law can help you with a FAPA order, call our office at (503) 227-0200 or visit our website at https://www.landerholmlaw.com.

Disclaimer: Nothing in this communication is intended to provide legal advice, therefore you should not interpret the contents as such.

Show Notes Transcript

Former Judge, Ken Stewart, discusses how to obtain a FAPA, what you can expect from a FAPA hearing, and how these restraining orders are enforced.

To learn more about how Landerholm Family Law can help you with a FAPA order, call our office at (503) 227-0200 or visit our website at https://www.landerholmlaw.com.

Disclaimer: Nothing in this communication is intended to provide legal advice, therefore you should not interpret the contents as such.

Intro:

Welcome to Modern Family Matters, a podcast hosted by Steve Altishin, our Director of Client Partnerships here at Landerholm Family Law. We are devoted to exploring topics within the realm of family law that matter most to you. Our discussions will cover a wide range of both legal and personal issues that accompany family law matters. We strongly believe that life events such as marriages, divorces, re-marriages, births, adoptions, children, growing up, growing older, illnesses and deaths do not dissolve a family. Rather, they provide the opportunity to reconfigure and strengthened family dynamics in healthy and positive ways. With expertise from qualified attorneys and professional guests, we hope that our podcasts will help provide answers, clarity, and guidance for the better tomorrow for you and your family. Without further ado, your host, Steve Altishin.

 

 

Steve Altishin  0:03  

Hi, everyone. Welcome to our Facebook Live broadcast. I'm Steve Altishin, Director of Client Partnerships here at Landerholm Family Law. Today we're here with former judge, Ken Stewart, to talk about Oregon's Family Abuse Prevention Act restraining order, commonly called a FAPA. We will talk about what a FAPA is and how you can avail yourself of its protections, how FAPA court hearings work, and what happens if you violate a FAPA order. So before we start in, hey, Ken, can you tell us a little bit about yourself?

 

Ken Stewart  1:50  

Sure, Steve, I've been a lawyer for over 50 years. And during that time, I served about five years as a deputy district attorney in Clackamas County, then went into private practice for a little over 30 years, mostly in family law and criminal law. And then, the last 14 years of my active career, I was a judicial officer in Clackamas County, and retired in July of 2018. So that's 50 some years in a few seconds.

 

Steve Altishin  2:40  

So we've talked about this before, Ken, and you and I, FYI for people, have known each other for a long, long time. We were trying to figure out exactly how long, and it's well north of 30 years and coming up on 40 years probably. And I know that you have presided over thousands, probably, of FAPA hearings. And we've talked a bit about this, about how those hearings work. What you generally do, as you were telling me, is you start those hearings--and this is especially with folks who don't have attorneys, maybe aren't sure what a FAPA is even, or aren't sure how anything is going to work-- and so you generally start in with them by giving them a talk about what they can expect in the hearing. So normally, I would just dive in with a set of questions, and you would give me some answers. But I'm thinking today, let's do this a little different. If you don't mind, what I'd like you to do is to give us a sample of the talk you give to folks when they come into the sharing. And then we can go deeper into some of the points you hit after you do that, unless one comes up that we really want to talk about right away, and then I'll do what no party should ever do to you while you're talking to them: I will interrupt you. And please excuse me for that. But if I don't do that, at my age, I may end up forgetting what I want to ask. So at this point, Ken, why don't you start in on that?

 

Ken Stewart  4:20  

All right. Well, keep in mind, Steve, that what I want to do at the start of the hearing is make sure that the parties understand that I know they're not lawyers, and I want to give them a setting that they can do the very best in a situation that they're very uncomfortable in. And so let's say that the parties are Mr. And Mrs. Jones, a married couple with a couple of kids. And Mrs. Jones has filed the petition. And by the way, just so you know, where we are starting in this process, she will have already come to court for what is called an ex parte appearance, where she will file her petition for a restraining order. And the judge will, with only her presence, sign a restraining order that will remain in effect, unless that is contested. So we're at the point now that Mr. Jones has been served with a restraining order, and has filed a request for a hearing. And today is the day that the court set the hearing. So Mrs. Jones, you are the petitioner in this case, you're the person that is seeking the relief. And so at this hearing, you'll go first, and I will ask you questions. Your questions will be based upon the restraining order, or actually the petition for the restraining order that you filed. So listen very closely to the questions and answer them as directly as you can. And after I've asked you those questions, you'll have an opportunity to explain any answer you wish to further or bring up something that I didn't ask you about. Now, Mr. Jones, you're listening carefully, but you're not saying anything. After she has supplemented her testimony, after I've asked her questions, you have the right to ask her questions. That's called cross examination. But sense there is a restraining order in effect, you can't talk to her without violating the restraining order. So you will pose the questions to me, I will make sure that she understands the question, and then she'll answer the question. Or if I don't think the question is properly made, I'll change it a little bit to make sure that it's an appropriate question.

 

And after you've asked your questions, and by the way, you don't have to ask any. It's hard to ask questions. Just ask any new lawyer, it's hard to ask the questions. But in any event, after she's answered your questions, then she has the right to go into what is called redirect. She can try to explain anything that you've brought up in your questions that she didn't, or wasn't able to, answer. So that would be the first witness. I'll ask her, then, do you have any other witnesses, Mrs. Jones, that  you want me to hear? And by the way, Mrs. Jones, I only want, at this time, witnesses that are going to be able to testify about the alleged abuse. We're not going to get into the issue of custody or parenting time until I've made a decision as to whether the restraining order will continue, and that decision is based upon whether you're able to prove with the preponderance of the evidence, more than half, 51% to 49%, that the abuse occurred. So I'm going to ask you to tell me the names of your witnesses, if any. And give me a paragraph as to what you think they're going to testify about. And also, Mrs. Jones, did you bring any physical evidence today? Did you bring anything that you want me to see or you want me to hear? And if you have, before we start the actual questioning, I'm going to have you present that information, those physical evidence pieces to my clerk, who will number them, and get them ready for the hearing. So we'll go through your witnesses, I'll ask them questions, then you can ask them questions, then Mr. Jones can ask them questions. And he can do that, because there's no restraining order regarding those particular witnesses. And then after you've presented your evidence, he has the right to present his evidence. And we'll do the same thing with you. Mr. Jones, I'll start by asking you questions. And then you can supplement your answers. And then Mrs. Jones, you can ask him questions. And I think it probably would be best, because I don't want him speaking to you, that you pose those questions to me and then I'll address the questions to him. And then after he's presented his evidence, I'll go back to you. And you have the right to present rebuttal evidence. You can testify about anything he brought up in his case that you didn't cover in your case and we'll get into your side of that particular story. And then after I've heard both sides in the manner I've talked about, I'll make a decision. Mrs. Jones, did you meet your burden of proof? And if you did, I will continue the restraining order. And if you didn't, I will dismiss the restraining order. But if I do continue the restraining order, then we'll get into what to do about the children.

 

And after we've done that, the restraining order will remain in effect for a year.

 

And from the date by the way that it was signed, but at the time that you had filed your petition, Mrs. Jones. The only way it will go beyond a year is if, Mrs. Jones, you file a request for a continuation of the restraining order. But if that happens, Mr. Jones, you'll be served with a copy of that request and have the right to contest that, too. So do you have any questions about the process, Mr. Jones, Mrs. Jones, Mr. Altishin? 

 

Steve Altishin  11:13  

Mr. Altishin Jones! I'm gonna follow up on a couple of the things you said. And the first one is, what do you mean, if there's already a restraining order against? I didn't go to court before. How could you have gotten a restraining order against me before I got to go to a hearing? Which leads to, what is the process? How do restraining orders, especially FAPA restraining orders, get started? And a little bit about that? I know that there are several kinds of restraining orders in Oregon. People can file for protection against people that are abusing them or threatening to abuse them. How does the FAPA fit into that puzzle of different kinds of restraining orders in Oregon that people can ask for?

 

Ken Stewart  12:15  

Alright, let's talk about restraining orders that are kind of similar to the FAPA. There's the elder abuse restraining order, and a sexual abuse restraining order--those are the two most similar that I can think of. And in those cases, the person requesting the protection does the same thing that a person in a FAPA situation does. And that is, you have to go to court and file a petition for a restraining order, or elder abuse protection order, or sexual abuse protection order. And you go there without the other side being there. That's called ex parte. You have to fill out your petition, which is the request for the order and swear to it. And the judge will go over that petition. If the judge has any questions, the judge will ask you those questions in an open court about your petition. The judge will ultimately either sign the petition, or I should say sign the order, based upon the petition or not.

 

Steve Altishin  13:34  

And that leads to the question, are there any circumstances where the court would sign some overarching order that needs to be heard now or wait till a hearing? How does that kind of fit in?

 

Ken Stewart  13:56  

In the FAPA situation, if there are children of the parties, and the petitioner wants custody and, say, no parenting time for the respondent, if the court is uncomfortable about the facts leading to that request--one example would be: if mom comes in for the restraining order but the children are with dad, or one of the children is with dad and oneof the children is with mom, the judge at the ex parte hearing can actually require what is called an "exceptional circumstance hearing", which will be maybe within two weeks of the of the time that the petition is filed. Both parties will have to be at that hearing, as of course at some point the respondent is going to be served with a restraining order. If there's an exceptional circumstance hearing, that order will also require him to be at the exceptional circumstance hearing. Now, he doesn't have to come. But if he doesn't come, then the order will remain in effect. Or if the petitioner doesn't show up at the exceptional circumstance hearing, the restraining orders going to be dismissed. But in a restraining order case, a Family Abuse Prevention Act restraining order case, the order that signed at the time of the ex parte hearing is the final order, as opposed to a stalking protection order, where a Temporary Protection Order is signed by the judge when the petitioner comes in to the ex parte hearing with their application. A hearing is set out several weeks, where the petitioner and the respondent both have to appear. And that's because a stalking protective order is forever. It doesn't lapse in one year, so a hearing is required. But if the either of the parties don't show up at the next hearing, the order is either made permanent or dismissed, depending on who doesn't show up. 

 

Steve Altishin  16:26  

Wow. 

 

Ken Stewart  16:27  

And interestingly, in the stalking protective order, and perhaps I'm getting too specific here, after the ex parte hearing and the temporary order is signed by the judge, and they set it off for a couple of weeks, and both parties are supposed to be there, that is not the final hearing. The respondent is supposed to say, 'I I want a hearing'. And if that's the case, the court will set a hearing of about a month or so, and both parties could come ready for the hearing.

 

Steve Altishin  16:59  

There's a lot of technicalities that kind of go along with this. And the petition that's filed, at least initially, sounds like it's an incredibly important document signed by the petition. Because the ex parte order is based a lot on the petition itself. it sounds like. So when this gets to a court hearing, you said that you have the petition to look at, is that correct? 

 

Ken Stewart  17:31  

Oh yes.

 

Steve Altishin  17:34  

Is the petitioner the person bringing the order? Are they stuck with what they put in the petition? Can they change it or can they add to it? Or is it sort of a, you better get the petition complete and right, or you're in big trouble kind of thing?

 

Ken Stewart  17:51  

All right, good question, because there's no easy answer. First of all, I figure I've done, my best estimate is, about ,3000 hearings. FAPA hearings, I would guess I've done about maybe 10,000 ex parte appearances and FAPA hearings. One thing is, if you're going to file a petition for a restraining order, you better be able to make it so the judge can read your writing. That happens a lot. And not because the judge has got to sign the order based upon the information you give them, plus the information in the petition has to be used by the respondent to respond. If they can't read it, they have no notice of what your claims are. So number one, write legibly. If you can't, use somebody to do it for you. At the end, you're going to have to sign it, and you're going to have to read it. But you know, some people are blind, some people can't read, and some people can't write. Somebody is either going to have to read it to you, but you're going to have to know what is in it. So we get to the hearing. And frankly, I use the petition to ask my questions. If the answers by the petitioner are different than what's in the petition, then it gives me some cause to think that maybe they're not accurate or they're not telling the truth, or something of that nature. So I would recommend to any petitioner that, number one, you read your petition again before you come to your hearing, and you bring it with you. Because another thing that I do at the start is ask both parties, 'Do you have the petition with you? Let's get it out. All right. You can follow along with me.' It makes a lot easier for everybody. So you better be accurate when you come to the ex parte hearing with your petition.

 

Steve Altishin  20:09  

How about being complete? I'm thinking that, and tell me if I'm wrong, there's going to be maybe more than one hearing that you're going to hear that day.

 

Ken Stewart  20:20  

Yep, maybe 10.

 

Steve Altishin  20:21  

Maybe 10, so there's not necessarily a whole lot of time that you're going to spend on each one. Again, you know, circumstances could differ. But, let's say I'm Mrs. Jones, and I have a hearing. And I said, in part of my hearing, that my husband came over and threatened to kill me. And then I get to court, or I'm in the ex parte hearing, and I say, 'Oh, and also, I've got 20 emails from that person,' but it hasn't been put in the petition. Is that going to be considered?

 

Ken Stewart  21:07  

Probably. Probably because there's only so much room in the petition to put down everything and you need to be fairly succinct. And sometimes they get that information after they filed their petition, but before the respondent has been served, for instance. So that can be considered, but mistakes like that make it more difficult for the judge to conclude that the petitioner has been either accurate or truthful in their petition.

 

Steve Altishin  21:39  

Right. There are some things that are sort of the hurdle you have to climb for the judge to even consider it, aren't there? Because, again, FAPA orders, I believe, are abuse among family members. So if I'm just a friend and I threaten you or hit you, a FAPA order may not be the way to go, or the appropriate way. What are some of those bedrock issues that you really need to have happened in order to get a FAPA order?

 

Ken Stewart  22:17  

Good question. It's all in the petition. In the petition, and I'm looking at it right now, in the petition, you have about five boxes that you can check regarding the issue of your relationship with the respondent. Is it my spouse? Or am I related by blood or marriage? Or even adoption? Or do we live together in a sexually intimate relationship? Or have we had a sexually intimate relationship within the past two years? Or is the respondent the parent of the petitioner's child? Those are all circumstances that make you family, I guess. So if you folks are roommates, you live in the same residence, maybe in different bedrooms, and you haven't had sex, you're probably not eligible for a FAPA.

 

Steve Altishin  23:24  

Okay. So that's nice, those are on the petition. So people don't necessarily have to remember to write those in. There's a box.

 

Ken Stewart  23:35  

Exactly, you have to be able to read and mark.

 

Steve Altishin  23:39  

Yeah. So, okay, let's get to some of the things you said about evidence that people can give in a FAPA hearing. And one of the things you said is physical evidence. So let's say I, as Mrs. Jones, have a text, or an email, from Mr. Jones, saying that he's beat me three times before, and he's gonna come do it again tomorrow. 

 

Ken Stewart  24:12  

That's good evidence.

 

Steve Altishin  24:14  

Yeah, and I want to show that to you! 'Judge judge, look at this thing, it's on my phone.' First, can you look at that? And second, I think as a possible warning, what happens to that phone if you look at it?

 

Ken Stewart  24:31  

All right. In that particular instance, I'm going to jump back just a little bit, because at the end of my little talk to the parties at the start of the hearing, I tell them, 'Mr. and Mrs. Jones, there's a 100% chance that one of you is not going to like my decision. And that person has the right to appeal my decision to the Court of Appeals. And you must do that within 30 days of the date I sign this order today continuing the restraining order. Now that controls, to some extent, what type of evidence I can use at the hearing. And so if Mrs. Jones brings in her device with that email on it, we need to establish, first of all, that it came from Mr. Jones. How does she know that's his email? Well, because of the telephone number, and I'm aware of the telephone number, or something like that. And secondly, how are we going to preserve that email, in case there's an appeal of this hearing? So Mrs. Jones, for me to look at that phone, you're either going to have to let me take that phone into evidence--we keep it at the courthouse, if somebody appeals, we send it to the court of appeals with everything else--or, if there's no appeal at the end of 30 days, then you could retrieve your phone. But that's probably not what you want to have happen. There are other ways to deal with it, and that is to make copies. Make copies of them and bring in the copies and say, 'Okay, I've got this on the phone, this is my phone, and I made printed out copies from that.' There we can keep that in evidence. So that's the way to deal with texts, or things like that.

 

Steve Altishin  26:37  

Let's get to one other issue that you talked about when you talk to the people and that is, kind of a basic question, evidence of abuse. We talked about physical evidence, or physical abuse, I mean. So what about threatening? Is just threatening enough? Or what about emotional abuse? Is that big? Do you consider those kinds of things? Or does it just have to be someone hitting or shooting somebody? 

 

Ken Stewart  27:15  

Alright, you have about 27,000 questions in your mind. First of all, physical evidence- photographs. You have a black eye, you have cuts, you have bruises. You probably otta have somebody take a photo of it, bring the photo in as physical evidence. Witnesses- maybe nobody saw the actual act of abuse, but the next day you show your mom the black eye that you have. By the time the hearing takes place, let's say you don't have it, you can have a witness say that they saw it. So that's one way to deal with that. Now, there's so many questions that I don't remember the rest!

 

Steve Altishin  28:09  

How about things like emotional abuse?

 

Ken Stewart  28:13  

Let's talk about that this way: you have to prove, within the six months, or actually 190 day period prior to the signing of the order at ex parte, that you were subject to abuse. And abuse is defined in a number of different ways. There's actual physical injury, that's a form of abuse. Or attempt to hurt you, attempt to cause you physical injury, I should say. Or placed you in fear that you were about to be physically injured by the petitioner. Or he made you have sexual relations with him against your will by threat or force of threat. Now, that's all right there in the petition. Again, you don't have to write it out. You can read it and check the boxes that apply. Those are the forms of abuse. So there's nothing in there that's talking about "emotional abuse." But, emotional abuse is probably relevant, because you have other things you have to prove. You have to show that and again, I'm looking at the petition right here, that you're in imminent danger of further abuse.

 

Steve Altishin  29:39  

Emotional abuse would kind of show that.

 

Ken Stewart  29:47  

Exactly. I've had so many cases where, and it's usually husband and wife, or a man and woman in a non-marital situation that live together, but the husband becomes domineering. He keeps you from seeing your friends, and all kinds of things of that nature. He controls the finances, you have to account for every penny, that's certainly domestic abuse. But you also have to show that he's physical--and I say he and I don't mean that because there are petitioners who are male, but generally it is female-- that you're in imminent danger of further abuse, and he's a threat to your physical safety, or that of your children. 

 

Steve Altishin  30:39  

Okay, that leads directly into the last topic I want to get from your original talk to the folks. You brought this up, and I don't think a lot of people realize this, but you have more power than just restraining the abuser from, let's say, being near the abused. And this especially becomes true when it comes to the couple who has kids. Custody and visitation and all that stuff can be affected by a FAPA order. And the judge has rights, at least in some way, to adjust some things that may have been ordered by a court, like a regular divorce court or something.

 

Ken Stewart  31:36  

And that's absolutely true. There are several possibilities. First, say there's no previous order. You come in, you're married, and the the court finds there's abuse and assigns a temporary order placing custody with, let's say, mom, and maybe giving dad no parenting rights or supervised parenting rights or some other form of parenting rights. That will remain the orders unless or until somebody maybe files for divorce. And there is an order subsequent to the restraining order by another court with jurisdiction regarding the issue of custody or parenting time. That order will supersede the custody and parenting time order in the restraining order. The restraining order remains in effect, but the type of custody and parenting order can be changed. And likewise, if there's already a divorce order giving custody and parenting time and the restraining order changes that, that restraining order takes precedent. And that will remain in effect until another court changes that divorce order.

 

Steve Altishin  33:07  

Wow. We're running out of time, we could talk for another 30 minutes on this stuff. But I want to hit a little bitfrom the viewpoint of the respondent, the person who's accused of the abuse. They obviously have the right to go to court. Let's say they're served and they don't go to court, can they pretty much expect that that order is going to be continued?

 

Ken Stewart  33:36  

At the time you're served. Mr. Jones, it will generally be by a law enforcement officer, although it doesn't have to be. The law enforcement officer will generally say, 'Read this really carefully'. Because if there's no exceptional circumstance hearing, and those are not very often signed, then you have only 30 days from the date you're served to file a request for a hearing. If you don't, your ability to do anything about it goes away. And I've had hearings where I've discovered that the the requests for the hearing took place more than 30 days after the service, and I dismissed the request and continued the restraining order.

 

Steve Altishin  34:32  

I want to go back one second, I know we're running out of time, but what happens if your hearing gets to the point and there's evidence starting to come in about not only abuse of let's say Mrs. Jones, but of the children. Can you, as the judge, contact another appropriate agency if something like that comes in?

 

Ken Stewart  34:58  

I would first of all determine if, let's say the petitioner has done that. Have you contacted Child Protective Services? Have you told the police? And if they haven't, I have a legal obligation to do so.

 

Steve Altishin  35:17  

Yeah. So let's say that your order is to continue the restraining order. The petitioner does have a right to appeal, you said? 

 

Ken Stewart  35:34  

Yes. Yes. 

 

Steve Altishin  35:37  

What happens if that person violates that court order, or the restraining order?

 

Ken Stewart  35:43  

Alright. If you, as a petitioner, believe that he has violated the order, maybe just by texting you or calling you, or coming to your home or whatever, you call the police. The police will investigate. And if they believe that there has been a violation, they are required by law to arrest. They responded. We've had so many cases where the parties have kind of reconciled but haven't done a thing about the restraining order. And the police find out about the violation and make an arrest. And at the hearing for contempt of court, for violating restraining order, the petitioner says, 'Well, I invited him over. Yeah, I wanted him there'. That's no defense, but it may have some bearing on sentencing.

 

Steve Altishin  36:44  

So definitely don't just leave Chad's hanging if a situations changed. You really do need to, depending on the situation, either follow up, file your appeal, get your thing continued if it's after a year. If you really want to have it stop, you have to go to court to have the restraining order stopped. You just don't sort of let it sit there out in the ether.

 

Ken Stewart  37:15  

Right, but that petitioner must come to court and file a motion to dismiss. And in fact, I've had many hearings, I've gotten halfway through the hearing and the petitioner says, 'Really judge, I don't want this order, I never did.' So generally, one of the first things I say when I'm talking to the parties at the first is, 'Mrs. Jones, do still want the restraining order?' And every once in a while they say, 'No, I don't.' 

 

Steve Altishin  37:47  

I mean, that's people. And it's good to know. Ken, I know we've got to stop now. So thank you for being here today, sharing your experience with us, and your years--lots and lots and lots of years, well you may not want to hear that persay--of having that experience and being on the bench and helping. Really what you're doing is helping people get through a really tough situation. Incredibly informative, and you've been incredibly helpful here. I really want to thank you for coming here today and talking.

 

Ken Stewart  38:25  

Absolutely, my pleasure. I get to get back at least a little bit into my memories.

 

Steve Altishin  38:30  

I like it. It's always a good thing to do. And everyone else, thank you for joining us with Facebook live today. Please feel free to leave a comment or post underneath. Everything helps. We'd like to hear from you if you have any questions. And so until next time, everyone, stay safe. Have a great day. And goodbye.

 

Outro:

You're listening to Modern Family Matters a legal podcast, focusing on providing real answers and direction for individuals and families as they navigate the growths, changes, and challenges of creating their new family dynamics. Modern Family Matters is sponsored by Landerholm Family Law, serving Oregon and the Pacific Northwest and devoted to providing clients with compassionate and fierce legal advocacy with a firm belief in the importance of upholding the family unit amidst complex transitions. If you are in need of legal counsel or have additional questions about a family law matter important to you, you can visit our Landerholm Family website www.landerholmfamilylaw.com, or call us 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 solutions on legal matters, important to the modern family.