The Oregon Divorce Blog

Oregon’s “Family Abuse Prevention Act” protects victims of domestic violence and allows victims of recent abuse to obtain protection from an abuser. ORS 107.700 et seq. While this is a necessary and valuable statute, it is also frequently misused as a custody tool, as obtaining a Family Abuse Prevention Act Order (FAPA order, or restraining order) against someone seriously impacts an alleged abuser’s claim for sole custody of children. Restraining orders are easy to obtain, as the initial application is done without notice to the opposing party. At the hearing to determine if a restraining order will continue, my experience has been that many circuit courts, out of an abundance of caution, tend to uphold restraining orders.

The Oregon Court of Appeals is a harder place to win a restraining order case. On November 28, 2007 the Oregon Court of Appeals reversed a trial court’s upholding of a restraining order in Baker v. Baker, ____ Or App ____ (2007). In the Baker case, the parties obtained mutual restraining orders against each other. Each party testified to a different version of events on the day of the incident that resulted in dueling restraining orders. The facts were ugly, and involved a pellet gun, a dog, and being dragged by the hair. Unfortunately for the petitioner, the testimony did not involve being threatened, or a fear of that the abuse would re-occur. The trial court upheld both restraining orders. The order upholding the dueling restraining orders issued by the court after hearing correctly identified the statutory test. To obtain a FAPA restraining order, the petitioner must show that he or she:

“has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition, that there is an imminent danger of further abuse to the petitioner and that the respondent represents a credible threat to the physical safety of the petitioner * * *[.]“

“Abuse” is defined in ORS 107.705(1):

“(a) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury.

“(b) Intentionally, knowingly or recklessly placing another in fear of imminent bodily injury.

“(c) Causing another to engage in involuntary sexual relations by force or threat of force.”

ORS 107.718(1)

The trial court erroneously upheld the restraining order without meeting all of the above elements. There was no testimony that the respondent had threatened petitioner. There was additionally no evidence that the petitioner feared a repeat of the incident, as required by ORS 107.718(1). The appellate court, finding error, reversed and vacated Petitioner’s restraining order.

The moral of the story is when faced with keeping or defending a restraining order, you need a lawyer that knows the appropriate statutory test. With the same facts, a different (better) series of questions by Petitioner’s lawyer could have potentially made the restraining order bulletproof in the eyes of the Oregon Court of Appeals. Also, quick analysis by defense counsel could have resulted (correctly, based on the testimony) in the restraining order being denied at the trial court level.

In dissolution of marriage cases and any type of custody case, we automatically assume that the parties have a dispute over the custody of their children. Sometimes, though, the parties may be interested in settling a dispute over pets.

CNN recently reported about a custody dispute involving a golden retriever, whose adult owner committed suicide and whose (divorced) parents, the deceased man’s fiancee and the deceased man’s ex-girlfriend all sought custody of the dog. (The judge resolved the dispute in favor of splitting custody between the man’s parents, both of whom agreed to seek appropriate medical care for the dog and to other conditions.)

The case sounds extreme, but pet disputes are becoming more common. (For example, one of my immediate neighbors was involved in a protracted dispute over custody of two expensive show dogs. I often wish his ex-wife would have won, usually when I’m gardening near that particular fence.) In Oregon, the owner of a car dealership and his ex-wife feuded over custody of a wallaby named Skippy; Skippy had been purchased by the dealership and the wife was ordered to turn him over as part of other personal property listed in Exhibit A. Patchett and Patchett, 156 Or App 69, 964 P2d 1114 (1996).

When Skippy escaped (as he was prone to doing) and did not return, the husband filed a contempt action against the wife. Id. at 71-2. The trial court held the wife in contempt, but the Oregon Court of Appeals reversed, writing that there was no evidence the wife had willfully allowed Skippy to escape. Id. at 72.

Technically, of course, pets are not people and are not actually subject to “custody” disputes, but are more characterized as subject to “property division” disputes. Recently Maine extended domestic violence protection to animals and gave parties the option to seek temporary custody of animals in situations involving domestic violence, recognizing how common it is for abusive spouses and partners to take their anger out on pets. It will be interesting to see if the rest of the country, especially animal-loving Oregon, follows Maine’s example.