Intro:
Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.
Steve Altishin 0:32
I'm Steve Altishin, Director of Client Partnerships at Pacific Cascade Legal and I'm here with our Lead Family Law Attorney, Will Jones, to talk about how to get a stalking order. Hey Will, how're you doing today?
Will Jones 0:45
Not too bad Steve, another cloudy gray morning in the Pacific Northwest. But we'll power through. Yes,
Steve Altishin 0:51
We will definitely pile through. So let's just talk about stalking orders and start with kind of the obvious question is, you know, one of the requirements of getting a stalking order.
Will Jones 0:51
Well, before we dive too far into stalking orders, stalking orders aren't super common in Oregon. Your big restraining order we have other videos and stuff that deal with it is the fact that the Family Abuse Protection Act restraining order, stalking orders are much different and much less common. So when you're dealing with stalking order, you're dealing with something a little bit different than abuse, like you would see in a FAPA, what you're dealing with is, well, stalking. It's right in the name, which makes quite a bit of sense. So you're looking at, well, first let's talk about ages, anybody over the age of 18 can apply for themselves. Anybody under the age of 18, who's a minor, they need a guardian appointed or a guardian ad litem appointed someone to be able to represent them as though they were an adult in court. Minors are still eligible, but they need somebody to appear on their behalf, which would be a guardian guardian ad litem something like that. So stalking under stalking Prevention Act restraining order, you order me members of your family can apply. So it doesn't just have to be you someone can apply for you. But you have to have to unwanted context. So that gets a little bit tricky. My mailman drops off bills, those are unwanted. Clearly not stalking though, I don't want him to drop off the bills, he's done it more than twice, so that doesn't work. So those contacts have to make you feel alarmed, or corks, alarm, some manner of fear to men or of danger, or course you're being forced to do something. The trick between those two is it has to be objectively reasonable. So a reasonable person, which is this huge kind of legal fiction that we create, a reasonable person would be alarmed or coerced. And then dropping off a male. Yeah, I'm alarmed. I don't know how much I'm going oh, my power bill. But it's not really objectively reasonable for me to be careful of that. So we're looking at an average person would that kind of kick off some fears, some type of coercion, it has to be basically to impact your personal safety, or the safety of the house, a household member that you're dealing with so fearful, coerced, personal safety are kind of your big buzzwords in there. The difficulty in some of this, so you have your contacts. The problem as you deal with stalking is the First Amendment. First Amendment always gets its head off. And it always makes things tricky, because people have the right to free speech, despite the fact that it may be impinged from time to time, you do have the right to your first amendment rights. So you can say some things. So when you're dealing with the First Amendment, assuming these are verbal, or text or email, or whatever these contexts are, they have to make you fear for your personal safety, and contain a direct threat of harm that is intended to be carried out or has the present ability to be carried out. So this is my favorite example. I don't know why it's my favorite example, maybe just been doing this since the age of dinosaurs. But if somebody says, I want to kill you, I'm going to drop a dinosaur on your head. Clearly, there's a threat, they said they were going to kill you. But they don't have the present ability to drop a dinosaur on. Because we don't have dinosaurs. So there's no apparent ability. I want to kill you, I have a gun and I'm coming to your house. Now you have a clear threat, a present ability, and the eminence of that ability. So that first amendment means you have to have that direct threat that somebody can carry out. So that's kind of a stalking order in a nutshell, to unwanted contacts. They have to know that their unwanted fear coercion, personal safety. If you're dealing with verbal email text, it has to have present ability direct thread, and some type of eminent see it's going to happen soon. So it's talking orders in a nutshell, or at least the elements in order to be able to get a stalking order.
Steve Altishin 4:46
Well, even though sometimes I feel like a dinosaur, I agree there are no dinosaurs anymore. How does someone actually go about getting one? I mean, when what are the steps that someone would need to take to get a stocking order
Will Jones 5:01
But first getting to the courthouse sort of lot of forms are available online through the orange judicial department so you can get the forms and work on those. The forms basically say, Hey, how are you start? Tell us what happened, all that stuff. So you fill out a petition for a stalking protective order, we're going to take that to what's called ex parte ex parte is basically a court proceeding or only one side shows up. Right? So you're gonna go to court and present your petition to the judge. Judge may or may not ask you some questions. They may just read your paperwork. And it depends on how the judge handles ex parte. They're going to look at that and go, Does this meet the elements of the stalking protective order? If it does, they're going to grant your order that you have granted order, congratulations, that means absolutely nothing. Right? That order is not in effect at all, until it is served on the party who's basically bound the respondent is another way to say that. So until it is served, there's no order, nobody's bound to do anything, you just have a signed order. Just like if you have a cheque, that's not money, you have a check, you can put into your bank account, let it clear, now you have money. Same thing here until it served, you got nothing. When you go to your initial appearance, a judge may go this isn't enough. You don't meet all the elements. So I'm going to deny this. Now. There's no need to serve it because the order was denied anyway. So ex parte and on through if you meet the requirements, great, make sure you have it served, once it served gets in effect, and you're good to go.
Steve Altishin 6:23
So if you get served, can the person that is served, then objected arguing, and how does that happen?
Will Jones 6:33
So once a respondent is served with a protective order, they have 30 days, mind you, it is a strict 30 days, it's not 31, it's not 32, it's 30. From the date, they're served to request the hearing, if they requested a hearing on day 31, a judge is gonna go count 30 Because this is 31, you're not going to get it here, which is pretty important, because it's definitely orders a lifetime order. So don't blow those 30 days. So respondent files their response request for a hearing. And of course, we're going to look at here that the hearing the whole purpose of the hearing is Hey, what happened? Was there stalking wasn't there, not stalking. And obviously people can put some things in petitions that are a little bit fudged, maybe a little bit embellished or polished. And obviously, there's other factors. Yeah, there were two or more unwanted contacts, but this person has come to my work 54 times. So yeah, that may hold true, but maybe not the big issue here. Maybe there's another issue. If you go to the hearing and the restraining order gets dropped, it's gone all over. It doesn't mean you can't reapply. Right? So whoever got the order can go back, reapply try to do this all again. But the order is no invalid. Nobody's bound by it anymore, if it's upheld, so I've held for life. That's the end of story.
Steve Altishin 7:45
You brought up an interesting point there about what if the person who is accused, the respondent, says, 'Well hold it, we work in the same building. Does that mean I lose my job?'
Will Jones 8:02
Not directly, obviously, it's going to your employer a little bit. But any restraining order you're dealing with isn't just a, Hey, this is exactly what's going to happen. Right, stay 150 feet away period and discussion. A judge can craft whatever the order is to kind of fit with reality. So no contact outside of workouts just couldn't do that. When at work, you must stay at least 40 feet away. Anything can kind of be crafted within there to kind of fit reality. So none of the restraining orders Fafa Edie, Papa SPO, all of these that exist, they can all be tailored a little bit to go, Okay, let's go ahead and try to craft something that actually works for these people instead of you just have to be 150 feet away, period. We don't care. So that's something if an order gets granted, even if the respondent did everything and is like I was clearly stalking them, they may want to ask for a hearing anyway, just to go okay, we work at the same place. Can you deal with this relief in a little bit of a different way? That means I can keep my job. So obviously, there's ways to massage this a little bit, rather than just the orders upheld the orders denied?
Steve Altishin 9:13
Yeah. So how long would these things last?
Will Jones 9:18
Or ever, at least for the life of the person who's being restrained from contacting the other one. So that's why not only are stalking protective orders a little rare, just because they're a little odd to get docking is a little bit harder to prove than say FATCA, where it's abuse, it's a little easier to prove, but their lifetime order. So obviously the court is a little less reluctant to grant them because they last so long. FATCA lasts a year subject to renewals. These are just forever. So courts really kind of dig down on the facts here and go, is this worth a lifetime of restraining orders?
Steve Altishin 9:54
So what happens if the respondent or I guess even the petitioner violate the order?
Will Jones 9:59
So respondents specifically, but petitioners shouldn't violate the order either, it could eventually lead to dismissal, which was weird. But automatic arrest call the police police come over, they look in leads, which is the law enforcement data entry system, they see a stalking order, they see that they are within x space, whatever the order says of this person instantly in jail.
Steve Altishin 10:18
Well, Will, thank you for talking about this. This is really informed of what a stalking order is and how you get it. And like you said, how serious it really is. So thank you for joining us today to talk about that.
Will Jones 10:30
You betcha. Happy to do it. I'm happy to do it anytime.
Steve Altishin 10:34
So thank you, everyone else for joining us today. If anyone has any further questions, please feel free to contact us. We can get you connected with an attorney who can help. Stay safe stay happy be well.
Outro:
This has been Modern Family Matters, a legal podcast focusing on providing real answers and direction for individuals and families. Our podcast is sponsored by Pacific Cascade Legal, serving families in Oregon and Washington. If you are in need of legal counsel or have additional questions about a family law matter important to you, please visit our websites at pacificcascadelegal.com or pacificcascadefamilylaw.com. You can also call our headquarters at (503) 227-0200 to schedule a case evaluation with one of our seasoned attorneys. Modern Family Matters, advocating for your better tomorrow and offering legal solutions important to the modern family.
