Family Law – Case Law Update – Restraining Orders

free-vector-scales-of-justice_099380_Scales_of_justiceOn October 5, 2016, the Oregon Court of Appeals issued an opinion regarding the findings necessary to uphold a temporary restraining order.  In  TK v. Stutzman, 281 Or App 388 (2016), the Court reviewed the validity of a temporary restraining order issued under the Family Abuse Prevention Act (FAPA).  To support such an order, a petitioner must establish that (1) respondent had abused petitioner within 180 days before the petition was filed, (2) there was an imminent danger of further abuse to petitioner, and (3) respondent presented a credible threat to the physical safety of petitioner.  ORS 107.718(1).

In the underlying case, Petitioner was Respondent’s 28-year-old niece.  The two were estranged and Respondent believed Petitioner had a drug problem.  The event that led to the restraining order took place after a church service attended by both parties and Petitioner’s fiancee.  Petitioner testified that after the service Respondent approached her and accused her of using drugs and being involved with pornography.  Petitioner began to walk away and Respondent grabbed her by the arm.  Petitioner pulled away and continued walking.  Respondent then stood in front of Petitioner’s car door in the parking lot and told Petitioner “If we weren’t at church, you’d be dead right now.”  Petitioner pushed Respondent out of the way and drove the car out of the parking lot while Respondent continued to yell at her.  Petitioner testified that she was “very fearful for [her] life.”  According to Petitioner, three months prior to this incident, Respondent had come onto Petitioner’s property and then left when Petitioner walked outside.

The Court of Appeals expressed some reservation regarding whether the incident after the church service constituted “abuse,” but focused its inquiry on whether (1) Petitioner was in imminent danger of further abuse and (2) Respondent represented a credible threat to Petitioner’s physical safety.  In holding that those two elements were not met, the Court noted that “[a] petitioner’s subjective fear is insufficient to support a FAPA restraining order.”  The Court further explained that this case involved “an isolated incident of aggressive, primarily verbal, conduct;” there was no evidence that Respondent made any effort to harm Petitioner during the incident; and there was no evidence that Respondent had ever harmed, or attempted to harm, Petitioner or anyone else.  The Court concluded that “although he church incident caused petitioner fear, in context, it was insufficient to show that respondent posed an imminent danger and credible threat to petitioner’s physical safety.”

The Court of Appeals reversed the trial court’s continuance of the temporary restraining order.