J. K. v. Kargol

Under ORS 107.718, in order for a FAPA restraining order to be issued, petitioner must prove by a preponderance of evidence that respondent (1) “abused” petitioner in the 180 days preceding the filing of the petition, (2) presents an “imminent danger of further abuse” to petitioner, and (3) “represents a credible threat to the physical safety of the petitioner”, with a subjective fear being insufficient. T. K. v. Stutzman, 281 Or App 388 (2016).

Respondent appealed the issued FAPA order. Respondent assigned error to the trial court’s finding that Petitioner proved the standard under ORS 107.718. On appeal, Respondent argued that Petitioner failed to prove that she was in “imminent danger of further abuse” or that Respondent presented a “credible threat to her physical safety”. In response, Petitioner argued that the threat was proven given both parties’ volatile history. Under ORS 107.718, in order for a FAPA restraining order to be issued, petitioner must prove by a preponderance of evidence that respondent (1) “abused” petitioner in the 180 days preceding the filing of the petition, (2) presents an “imminent danger of further abuse” to petitioner, and (3) “represents a credible threat to the physical safety of the petitioner”, with a subjective fear being insufficient. T. K. v. Stutzman, 281 Or App 388 (2016). The Court held that the FAPA restraining order evidence was insufficient as the subjective fear was not enough due to the parties’ living apart and the little contact between them. Reversed.