March 10, 2010

New Case Law – Definition of Abuse in a Restraining Order Case

The Oregon Court of Appeals in Martinez and Martinez released an opinion on March 10, 2010 relating to the definition of abuse in a restraining order case.  One of the prima facie elements necessary to obtain a restraining order (FAPA order) is proof that a party has been “a victim of abuse committed by the respondent wihtin 180 days preceding the filing of the petition[.]”  ORS 107.718(1) and ORS 107.710(1).  The court of appeals agreed with the appellant that the trial court was incorrect in finding that respondent committed abuse against petitioner during the 180 days preceding the filing of the petition.

The ruling is not that interesting and is very short.  What is interesting is that the court refused to divulge the facts of the case or the reasoning that went into its ruling.  Instead the court quoted Chief Judge Herbert Schwab as follows:  “The incidents which give rise to child custody litigation are never pleasant, and often sordid.  Such litigation tends to emphasize human weaknesses.  While the published opinion of an appellate court in a custody case is rarely a ‘best seller,’ it is nevertheless a public record which can in later years come to the attention of the children who were the subject of the controversy.”

The entire opinion can be found here:

For a person considering filing a restraining order, it is important to consult with an attorney.