Search This Site      Need Help with Your Search? Find Legal Help On Domestic Violence Related Resources Family Law In Oregon By: Legal Aid Services of Oregon   WPD File Temporary Assistance for Domestic Violence Survivors (TA-DVS) By: Oregon Law Center and Legal Aid Services of Oregon Protection From Abuse By: Legal Aid Services of Oregon more...

BEFORE THE HEARING

WHAT IS A CONTESTED HEARING?

• The Judge granted your restraining order based on the information you gave in your petition for the restraining order. The judge did not hear from the other side. If the person you got a restraining order against (the Respondent) disagrees with the information you gave or disagrees with any part of the order, he or she has a right to a hearing in front of a judge.
• The purpose of the hearing is to decide whether or not your restraining order will remain in effect, and if it does remain in effect, if the order will stay the same or change in some way.

The court will send you a "Notice of Hearing" in the mail. The notice will tell you the date, time, and location of the hearing. You will also get a copy the Respondent's "Request for Hearing," which has been filled in by the Respondent. The Request for Hearing form will look something like the following:

REQUEST FOR HEARING I am the Respondent in the above-referenced action and I request a hearing to contest all or part of the order as follows (mark one or more): ___ The order restraining me from contacting or attempting to contact the petitioner. ___ The order granting child custody to the petitioner. ___ The terms of the parenting time order Other __________________________________ I (will) (will not) be represented by an attorney at the hearing. Notice of the time and place of the hearing can be mailed to me at the address below my signature Date: ___________________ Signature of Respondent________________________                      Address & Phone Number_______________________

There are two ways a restraining order can be contested:

> Within 30 Days After Service

The Respondent can request a hearing for a period up to 30 days after he or she received a copy of the court papers. At this hearing the Respondent can ask to have the order dismissed or can ask to have any part of the order changed. If the Respondent is contesting child custody, the hearing must take place within 5 days of the request. If custody is not contested, the hearing must take place within 21 days of the request.

> If More Than 30 days Have Passed Since Service

After 30 days from service, the Respondent cannot ask to have the restraining order dismissed.  If the Respondent tries to challenge the existence of the Restraining Order when more than 30 days have passed, you should tell the judge and ask that the hearing be cancelled and that the Restraining Order be continued without any changes.

But the Respondent can request a hearing to change the child custody or parenting time parts of the order at any time. Once 30 days have passed, a hearing about custody may be set on a 5 day time frame or longer.

CAN YOU RESCHEDULE THE HEARING DATE?

Probably not. You must appear at the hearing. If you do not appear the restraining order will probably be dismissed. If the Respondent comes to the hearing with an attorney, you can ask the judge for extra time so that you can seek a lawyer.

If you have an emergency that caused you to miss the hearing, make sure that you contact the court immediately to explain what happened. Also, if you miss the hearing because you did not get notice from the court in time, call the court immediately.

Look at your "Notice of Hearing." It will tell you the day and time of your hearing. If you are unsure, call your local court and ask the court clerk when your hearing is scheduled. When you call, be prepared to provide the clerk with your case number. Your case number is the number on the upper right hand corner of the first page of your restraining order.

Arrive early enough to give yourself time to meet with your witnesses and find the courtroom. You should plan to arrive at least 30 minutes before the hearing.

Look at your "Notice of Hearing." It will tell you the address of the courthouse. It will also tell you the courtroom where your hearing will be held. If you are unsure, call the county courthouse and ask the court clerk for directions When you call, be prepared to provide the clerk with your case number. Your case number is the number on the upper right hand corner of the first page of your restraining order. If you can, it is a good idea to try to find the courthouse a few days before your hearing.

DO YOU NEED A LAWYER?

Although the Judge will be prepared for cases not involving attorneys, you should try to get an attorney. An attorney can be very helpful, especially if custody or parenting time (visitation) is being contested or if the Respondent will have a lawyer at the hearing.

If you do not know a lawyer, you can call the Oregon State Bar (toll-free) at 1-800-452-7636 for a referral to a lawyer in your area. If you are low-income and cannot afford a lawyer, contact your local local legal aid office.

You should begin preparing your case. If you do not defend your restraining order at the contested hearing, it is likely that the order will be dismissed.

Wear nice, clean, clothing, such as something you might wear to an employment interview, church, or a graduation. Wear a minimum of make-up. Avoid very high heels, sneakers, jeans, and anything that is too tight, too short, too low-cut, or shows your stomach. Some judges refuse to allow miniskirts or shorts in their courtrooms.

If you do not speak English, you are entitled to an interpreter and the court should provide one. The process for asking the court for an interpreter is different in each count. Call the court and explain that you will need an interpreter for your contested restraining order hearing. Be sure to tell the clerk your name, the case number, and the date and time the hearing is scheduled.

IF YOU NEED AN INTERPRETER, NOTIFY THE COURT IMMEDIATELY - DO NOT WAIT !

You can ask to have a law enforcement officer present. To do this, you need to call the courthouse ahead of time and explain that you have a restraining order hearing and are concerned for your safety at the courthouse. Explain that you would like an officer in the courtroom during your hearing.

When the hearing is over you can ask the judge to keep the Respondent in the courtroom until you have had time to leave the building or ask that a deputy walk with you to the entrance of the courthouse or even to your car.

Take some time to read through this packet. Pay special attention to what you need to show at your hearing. Think about who is available to testify for you at the hearing.

• Stand when the judge enters the room.
• Sit down after the judge or clerk instructs you to sit.
• When talking to the judge, call her/him "your honor.
• Be polite. Do not interrupt anyone during the hearing. Stop speaking if the judge interrupts you.
• The judge may ask you questions. If you do not understand a question, tell the judge. Do not answer a questions until you fully understand it.
• If you don't know the answer to a question, say so.
• Take your time when answering questions and explain your answers if you think it is necessary.
• Be direct and honest with the judge. The judge will not appreciate evasiveness.
• Be truthful on all matters, even if you think the truth might hurt you in one or more instances. The truth can help you overall. The judge is more likely to believe the testimony of individuals who don't try to appear perfect.
• Be sincere. Don't be sarcastic or appear dissatisfied with the judge or the other side.
• Remain calm. Do not use the hearing to bad mouth the Respondent.

The "bench" is where the judge sits. If there is a court reporter, he or she will usually sit in front of the judge. The judge's clerk usually sits off to the judge's side. Across from the judge are two tables where the parties (you and the Respondent) and their lawyers sit.

• The judge and the judge's staff will be there.
• If requested for protection a sheriff may be present.
• The Respondent, his/her witnesses and his/her lawyer may be there.
• If the Respondent is at the hearing you do not have to speak to him/her except when the judge tells you. Remember that you are both there to speak with the judge.
• If the Respondent sits too close to you, move away to a distance where you feel safe. You have a right to keep him/her at a safe distance. If the Respondent is making you feel uncomfortable or unsafe in the courtroom ask the judge or sheriff for help.
• Your witnesses should also be there.
• Don't be surprised if there are a number of other people in the courtroom.  They may be waiting for their own hearings.  It is not unusual for several hearings to be scheduled at the same time in the same courtroom.

• The judge or clerk will call your case. When you hear your name called, stand and let the judge know that you are there and wait for the judge to give you further instructions.

The issues that the Respondent checked off in his/her hearing request form will be addressed by the judge. This may be the entire restraining order or only parts like custody, parenting time, or removal from the family home. If the Respondent brings up issues other than the ones marked in the hearing request form, you may ask the judge for extra time to allow you to prepare a response to the new issues.

WHO GOES FIRST?

Who goes first will vary from judge to judge. Be prepared to go first, but don't be surprised if the judge asks the Respondent to begin.

WHAT ARE THE PARTS OF THE HEARING?

A hearing has different parts. They include:

• Some judges like to hear "opening statements." For this reason, it is best to have something prepared. Once you are before the judge, ask him/her if he or she would like to hear your opening statement.
• If so, your opening statement should be a short summary of what you want, what you intend to present, and how your evidence will support your position.

You are probably the most important witness in your case. When it is your turn to talk, you should testify about the abuse that you described in your restraining order. Telling the judge about other times the Respondent has abused and frightened you is also important. This may not be an easy thing to do, but it is critical. Use as much detail as possible, such as exactly what the Respondent did, when and where he or she did it, what injuries or effect it had on you, and who else was present during the abuse.

Direct examination is your chance to ask your witnesses the questions that you have prepared. Your questions should be simple and direct and should be aimed at telling your story as clearly as possible. For example:

If you have a witness who saw the Respondent hit you, you might ask the following questions:

• Have you ever seen the Respondent hit me?
• When?
• Please describe what you saw.
• Have you ever heard the Respondent threaten me?
• Please describe what you heard.
• Were my children there? (if children were present)
• Are you frightened of the Respondent? If yes, why?
• Have you ever seen Respondent hit or fight with others?
• When?
• Please describe what you saw.
• (If children and custody are at issue:) Describe your relationship to Petitioner or Respondent.
• Have you seen Respondent with the child(ren)? How does he behave when with the child(ren)?
• If the witness is familiar with your daily routine, have him/her testify about who feeds, clothes, and generally cares for the children.
• Have you ever heard the respondent threaten to take the children and not return them?
• When?

Cross examination is your chance to ask the Respondent or his/her witnesses any questions that you may have after listening to their testimony. For example, if the Respondent has a criminal record you may want to ask: "Have you ever been convicted of a crime or are you on a pretrial release?"

It may be easiest if the respondent and his/her witnesses have to answer with a "yes" or "no" to most of the questions you ask.

This is your chance to explain anything that may have become confused during the testimony of the Respondent, the Respondent's witnesses, or the Respondent's cross-examination of you and your witnesses. Not all judges will encourage this, however.

After the testimony of the parties and their witnesses, most judges do not want to hear anything else. Others will let you summarize or argue the facts of your case. This is called the "closing argument." If you have the opportunity, you should summarize your case in a closing argument.

Once everyone has testified, the judge will give his/her decision. S/he might keep the restraining order as it is, change it, or dismiss it.

The restraining order law requires that certain facts must be shown before a restraining order will be issued or upheld. These are: 1) that you have a relationship with the Respondent that qualifies for protection under the restraining order laws; 2) that the Respondent abused you within the last 180 days (six months); and 3) that you continue to fear abuse from the Respondent. Each of these is discussed in detail below.

You must explain to the court that you and the Respondent have one of the following types of relationships:

• You are currently married to the Respondent;
• You used to be married to the Respondent;
• You are an adult related by blood, marriage, or adoption to the Respondent;
• You and the Respondent are lovers who currently live together (includes same-sex relationships);
• You and the Respondent are lovers who previously lived together (includes same-sex relationships);
• The Respondent is someone with whom you have had a sexually intimate relationship in the last two years (includes same-sex relationships);or
• The Respondent is your children's legally established parent.

You will need to prove that the Respondent physically hurt you or put you in fear of being hurt by the Respondent. This means that the Respondent:

• Physically hurt you or attempted to physically hurt you;
• Made you reasonably afraid that you were going to be injured; or
• Made you have sex against your wishes by using force or threats of force.

The Respondent must have done one or more of these things within the last 6 months.

• You must prove that you are in "imminent" danger of further abuse from the Respondent (you are scared of further abuse from the Respondent very soon without the restraining order).
• Your fear must be reasonable. This means that the judge must believe that a person in your situation might feel as you do. You need to explain to the court why you believe that the Respondent will hurt you if you do not have the Restraining Order.
• The fact that you are afraid the Respondent might take the children away is not a reason the law accepts for issuing or continuing an Abuse Prevention Restraining Order, but this fact may affect the type of parenting time the judge allows the Respondent.

WHAT TYPES OF EVIDENCE DO YOU NEED?

As mentioned above, your are probably the most important witness in your case. Be sure to include the following in your testimony:

1. Physical Abuse

This evidence should include the type of physical abuse that happened to you. If you were physically abused, you should tell the judge if the Respondent threatened to or actually:

• Hit or punched you;
• Shook you;
• Jerked or pulled you;
• Slapped you;
• Held you so that you couldn't leave;
• Bit you;
• Choked you;
• Shoved or threw you;
• Kicked you;
• Threw objects at you;
• Shot at you;
• Stabbed you;
• Pointed a gun or knife at you;
• Forced you to have sex.

You should also testify about abuse that occurred more than six months ago if it was very serious and helps you explain why you continue to be afraid of the Respondent. For example, the Respondent may have threatened and shoved you recently, but two years ago he pulled a loaded gun on you.

2. Details of Abuse

You should provide the court with as many details as you can remember about abusive incidents such as:

• Dates of these incidents;
• Where the incident occurred;
• How you were injured (describe bruises, scratches, swelling, broken bones, black eyes, etc.);
• Whether you were pregnant at the time;
• Whether your clothes were torn;
• Whether there was any property damage (for example, hole in the wall, broken chair);
• Who saw or heard the incident happen;
• Whether a child saw or heard the incident;
• Whether you sought medical help;
• Whether the police were called;
• Whether the Respondent was arrested after the incident.

3. Fear of Further Abuse:

You must also explain to the judge why you fear further abuse by the Respondent. To help explain this you should tell the judge whether:

• the Respondent has been convicted of violent crimes (for example, assault or harassment);
• there have been previous Restraining Orders against the Respondent (protecting you or others) and whether the Respondent violated those Orders;
• the Respondent has threatened to hurt you;
• the Respondent abuses alcohol or drugs;
• the Respondent has access to weapons;
• you have had to hide from the Respondent and how many times;
• Whether you have had to do things to feel safe (for example, changing the locks on your doors).

4. Emotional Abuse and Threats

• Emotional abuse itself does not qualify as "abuse" under the restraining order law. However, controlling or harassing things the Respondent has done are also helpful testimony for the judge to understand your situation. Tell the judge if the Respondent: Threatened to commit suicide;
• Took or threatened to take the children away;
• Reported you or threatened to report you to SCF;
• Prevented you from getting or keeping a job;
• Denied you access to money;
• Called you names or put you down;
• Controlled what you do or who you see;
• Threatened to hurt your family or friends;
• Harassed your family or friendsKilled or threatened to kill a pet of yours;
• Cut off or threatened to cut off the utilities;
• Damaged or destroyed your property.

People who know about your situation are very important to your case. Try to find people who have personal knowledge about the things you need to prove. Having personal knowledge means that they saw or heard something directly. They cannot testify to rumors or opinions, or to what other people told them (unless that person is the Respondent). Examples of good personal witnesses include:

• Someone who saw or heard the abuse happen;
• Someone who saw your injuries after an incident;
• Someone who saw you upset and crying just after an abusive incident;
• Someone whom you or the respondent told what happened. (For legal reasons, the judge might not allow testimony about what you told another witness of yours, but how you looked and sounded is something your witnesses can say. Your witnesses can always testify about what the Respondent said, as well as how he looked or sounded.)

In addition, it is important to bring the most believable witnesses you can. People who are neutral are best (for example, your children's teacher, a neighbor, or a co-worker). You should bring anyone who can help the judge understand what has happened (including your shelter advocate if you have one).

Be sure you know what your witnesses will say when they testify. You cannot ask someone to lie, but you can find out ahead of time what your witnesses will say. If their statements will hurt your case, don't use these witnesses. Be careful about using witnesses who have negative information about you or who have drug or alcohol problems, or prior convictions that the Respondent knows about.

If you have photos of your injuries, someone will need to testify about when the pictures were taken, who took them, what they are pictures of, and whether they are a fair and accurate representation of your injuries. This testimony can come from you or from another witness who was present when the photos were taken. Then you must offer these as exhibits to the court.  Example: "You honor, I would like to offer this photograph as an exhibit."

You can try to bring medical records that you believe will be helpful to the judge. The judge may or may not accept the records as evidence.

To prove that the Respondent abused you, you can play tape recordings or show the judge cards or letters in which the Respondent threatened you or apologized or admitted to hurting you. If you want to use a tape recording, you should bring your own tape recorder to court.

You will need to testify that you recognize the voice on the recording or the handwriting on the letters or cards, and that the voice or handwriting is the Respondent's. Explain to the court that you have seen his/her signature or heard his/her voice many times before. Then you must offer these as exhibits to the court.Example: "You honor, I would like to offer this tape recording as an exhibit."

To obtain police reports, call the Records Department at the police station or sheriff's office that serves your area. Ask what the procedure is for releasing police reports.

HOW DO YOU PROVE THAT YOU SHOULD BE AWARDED CUSTODY?

If the Respondent is contesting the custody provisions of your restraining order you will need to explain to the court why you should continue to have custody of the children. A custody is Order is a judge's decision about which parent should care for the children. To make this decision a judge must assess what placement would be best for the children. The court will be interested in the following types of information when deciding where to place a children:

You can show this by presenting testimony about which parent:

• has a closer relationship with the children;
• takes care of children during the day;
• puts the children to bed at night;
• feeds the children;
• bathes the children;
• takes the children to the doctor or dentist;
• goes to the parent/teacher conferences;
• helps the children with homework;
• has other family members with whom the children has a close relationship.

NOTE: Judges will usually try to keep brothers and sisters together if they have been living with each other in the recent past.

The following factors can be used to show a parent's attitude towards the children:

• How a parent shows his/her interest in and concern for the children;
• Amount of time each parent spends with the children;
• Whom the children has lived with the most;
• Child abuse, including physical, sexual, and/or emotional abuse by one parent;
• Child abuse, including physical, sexual, and/or emotional abuse by one parent;
• Keeping or hiding a children from a parent;
• How a parent relates to the children.

• DUI (driving under the influence);
• Violent crimes (assault, harassment);
• Drug offenses;
• Child Abuse.

• Verbal and physical abuse, especially in front of the children.

• Diagnosed mental illness that interferes with parenting.
• Drug or alcohol problems.
• Lack of control, frequent outbursts, and frequent loss of temper.

• Where a parent lives;
• Who else lives in the home;
• Whether the home is safe;
• Whether the home is clean;
• Whether there is any drug/illegal activity in the home.

NOTE: In the event you do not keep custody of your children, you should be prepared to request the type of visitation you want.

WHAT YOU NEED TO SHOW ABOUT PARENTING TIME (VISITATION)

You will need to tell the judge why you need to continue or change the parenting time (visitation) provisions in the ex parte order.

If you are worried about the safety of the children during the time they are with the other parent, or if you are worried for your safety during or after parenting time exchanges, you can ask the judge to include safety provisions in the parenting time (visitation) plan. 

For example, you may ask the judge to:

• Prohibit the Repsondent from using drugs or alcohol before and during parenting time visits;
• Require the Respondent to attend Batterers Intervention calsses, or dug and alcohol treatment classes;
•  Require that parenting time visits be supervised by a responsible third party;
• Require any other thing that you think would be necessary for your safety or for the safety of the children. 

NOTE:  If there is not a way to protect you or your children and still have parenting time, it may be appropriate to ask the judge for an order of no parenting time.  A judge will not make an order of no parenting time unless the judge thinks that this is the only way to keep you and the children safe. 

For more information about parenting time in restraining orders, click here.

General Parenting Plan Information

The state has developed two parenting plan packets for use in full divorce and custody hearings.  These documents can be useful resources in thinking about your parenting plan issues.  But, in most cases, a parenting plan provided by your restraining order will not be as detailed as a parenting plan provided by your divorce or custody order.  For more information about Standard Parenting Plans, click here.  (Please note that a Standard Parenting Plan may not be appropriate in cases involving domestic violence.)  For more information about Safety-Focused Parenting Plans, click here.  

• Avoid bringing your children to court. If you have to bring your children, arrange for a friend or relative to sit outside the courtroom with your children. You may want to pack a bag with toys and snacks.
• Do not bring knives, guns, mace, or pepper spray into the court building.
• Do not bring food or drinks into the courtroom.
• Do not chew gum in the courtroom.
• Do bring friends, advocates, and relatives with you for support, but ask them to avoid talking to the Respondent or the Respondent's witnesses
• Do not bring anyone who might "confront" the Respondent.
• Ask the court to order the Respondent to remain in the courtroom for 15 minutes to allow you and your witnesses to leave.
• The restraining order is only a piece of paper. Call 911 if the Respondent violates the restraining order.
• Take time to plan for your (and your children's) safety. Please take a few minutes to review the attached Safety Plan and think about what you can do to ensure you and your children's safety.