Family Abuse Prevention Act (“FAPA”) restraining orders are frequently at issue in Oregon divorce cases. Persons eligible for FAPA orders include spouses, former spouses, roommates, former roommates, and persons who have been sexually intimate within the last two years. ORS 107.705.
To obtain a FAPA order, a petitioner must allege that (1) he/she has been the victim of an incident of abuse within the preceding 180 days, (2) he or she is in imminent danger of further abuse, and (3) the respondent presents a credible threat to the physical safety of the petitioner or the petitioner’s minor child. ORS 107.710(1), ORS 107.718(1).
Unfortunately, FAPA orders are often misused in Oregon divorce cases to gain an unfair strategic advantage. For example, with almost no judicial inquiry, a party in a divorce proceeding may obtain a court order immediately barring the estranged spouse from entering the marital home, and prohibiting any contact with the parties’ children. The respondent against whom the FAPA order is targeted then must request a hearing on the restraining order, which may take several weeks to complete depending on how overloaded the court system is. Given that many FAPA orders are eventually dismissed after a court hearing, it is clear that the process is being abused by attorneys and their clients.
In my opinion, to curb the abuse of the FAPA order process, judges should be very aggressive in ordering attorney fees against parties that have their FAPA orders dismissed in a contested hearing, especially when the dismissed FAPA order resulted in the prevailing party losing out on parenting time.