Restraining/Stalking Orders

Restraining Orders

Restraining orders are issued to victims of abuse within 180 days of abuse by a family or household member. Restraining orders are issued at a hearing where only the party requesting the restraining order against another person is present. Generally, the party to be restrained by the restraining order receives no prior notice of this initial hearing and has no opportunity to attend or present any evidence.

Family or household members includes spouses, former spouses, adults related by blood, marriage or adoption, persons who are cohabiting or who have cohabited with each other, persons who have been involved in a sexually intimate relationship with each other within two years immediately preceding the request for issuance of a restraining order, or unmarried parents of a child. Abuse means attempting to cause or intentionally, knowingly or recklessly causing bodily injury, intentionally, knowingly or recklessly placing another in fear of imminent bodily injury or causing another to engage in involuntary sexual relations by force or threat of force.

The party against whom a restraining order is issued has the right to object and request a hearing on whether the restraining order should continue, but the objection and request for hearing must be filed within 30 days of service of the restraining order.

At the hearing to contest the continuation of the restraining order, the party who requested the restraining order (petitioner) must prove by a preponderance of the evidence (show that it is more likely than not) that (1) respondent (the party to be restrained) abused petitioner, (2) there is an imminent danger of further abuse to petitioner, and (3) respondent presents a credible threat to the physical safety of petitioner. If petitioner fails to prove any of these three facts at the hearing, the restraining order will be dismissed in its entirety.

While a restraining order is in effect, the restrained party may be required in some circumstances to pay monetary assistance to the requesting party, may have only limited or no contact with the requesting party, may be prohibited from returning to his or her home or from retrieving clothing and personal belongings in the home and may be prohibited from possessing firearms.

The existence of a restraining order may negatively impact the restrained party in a concurrent or future custody or parenting time proceeding, and findings of abuse in a restraining order case may be used against the restrained party in a custody or parenting time case. For these reasons, you should consult with an attorney to determine whether to object to the restraining order even if you wish to have no further or limited contact with the person accusing you of abuse. You cannot avoid the consequences of the restraining order once the 30 days to object has passed.

Stalking Orders

Stalking protective orders may be issued against a person who engages in repeated and unwanted contact with another person or a member of that person’s household thereby alarming or coercing the other person, the alarm or coercion is objectively reasonable and victim is caused reasonable apprehension regarding the safety of the person or a member of the person’s immediate family or household. Contact is defined by statute but given its ordinary meaning.

Special additional facts must be proved where the contact is limited to speech. In the case of speech only contact, the requesting party must additionally prove that the contact was a threat that “instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.”

The party requesting the stalking protective order must prove the required facts by a preponderance of the evidence, and a minimum of two unwanted contacts must have occurred within the two years immediately preceding the requestor’s request for a stalking protective order.

If a temporary stalking protective order is issued, the parties will be required to appear at a hearing to determine if a permanent stalking protective order should be issued. Neither party must object to or request a hearing. Instead, the hearing is automatically scheduled.

For more information, contact us at 503-585-0157 or sbaldwin@oneillbaldwin.com. We offer *FREE one-half hour consultations, and would be happy to discuss your case and answer your initial questions.

NOTICE: The above summary is meant for informational purposes and is not intended to be legal advice. It is meant merely as a broad overview of the rules applicable to the majority of cases, and does not diminish the need to consult with a professional regarding your specific circumstances.