75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 2311
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Judiciary for Oregon State Bar Family Law Section)
CHAPTER ................
AN ACT
Relating to service of legal documents; amending ORS 107.718 and
163.730.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 107.718 is amended to read:
107.718. (1) When a person files a petition under ORS 107.710,
the circuit court shall hold an ex parte hearing in person or by
telephone on the day the petition is filed or on the following
judicial day. Upon a showing that the petitioner has been the
victim of abuse committed by the respondent within 180 days
preceding the filing of the petition, that there is an imminent
danger of further abuse to the petitioner and that the respondent
represents a credible threat to the physical safety of the
petitioner or the petitioner's child, the court shall, if
requested by the petitioner, order:
(a) Except as provided in subsection (2) of this section, that
temporary custody of the children of the parties be awarded to
the petitioner or, at the request of the petitioner, to the
respondent, subject to reasonable parenting time rights of the
noncustodial parent, which the court shall order, unless such
parenting time is not in the best interest of the child;
(b) That the respondent be required to move from the
petitioner's residence, if in the sole name of the petitioner or
if it is jointly owned or rented by the petitioner and the
respondent, or if the parties are married to each other;
(c) That the respondent be restrained from entering, or
attempting to enter, a reasonable area surrounding the
petitioner's current or subsequent residence if the respondent is
required to move from petitioner's residence;
(d) That a peace officer accompany the party who is leaving or
has left the parties' residence to remove essential personal
effects of the party or the party's children, or both, including
but not limited to clothing, toiletries, diapers, medications,
Social Security cards, birth certificates, identification and
tools of the trade;
(e) That the respondent be restrained from intimidating,
molesting, interfering with or menacing the petitioner, or
attempting to intimidate, molest, interfere with or menace the
petitioner;
(f) That the respondent be restrained from intimidating,
molesting, interfering with or menacing any children in the
Enrolled House Bill 2311 (HB 2311-INTRO) Page 1
custody of the petitioner, or attempting to intimidate, molest,
interfere with or menace any children in the custody of the
petitioner;
(g) That the respondent be restrained from entering, or
attempting to enter, on any premises and a reasonable area
surrounding the premises when it appears to the court that such
restraint is necessary to prevent the respondent from
intimidating, molesting, interfering with or menacing the
petitioner or children whose custody is awarded to the
petitioner;
(h) Other relief that the court considers necessary to provide
for the safety and welfare of the petitioner and the children in
the custody of the petitioner including, but not limited to,
emergency monetary assistance from the respondent; or
(i) { + Except as described in subsection (12) of this section
or parenting time ordered under this section, + } that the
respondent have no contact with the petitioner in person, by
telephone or by mail { - except as described in parenting time
ordered under this section - } .
(2) If the court determines that exceptional circumstances
exist that affect the custody of a child, the court shall order
the parties to appear and provide additional evidence at a
hearing to determine temporary custody and resolve other
contested issues. Pending the hearing, the court may make any
orders regarding the child's residence and the parties' contact
with the child that the court finds appropriate to provide for
the child's welfare and the safety of the parties. The court
shall set a hearing time and date as provided in ORS 107.716 (2)
and issue a notice of the hearing at the same time the court
issues the restraining order.
(3) The court's order under subsection (1) of this section is
effective for a period of one year or until the order is
withdrawn or amended, or until the order is superseded as
provided in ORS 107.722, whichever is sooner.
(4) If respondent is restrained from entering, or attempting to
enter, an area surrounding petitioner's residence or any other
premises, the order restraining respondent shall specifically
describe the area.
(5) Imminent danger under this section includes but is not
limited to situations in which the respondent has recently
threatened petitioner with additional bodily harm.
(6) If the court awards parenting time to a parent who
committed abuse, the court shall make adequate provision for the
safety of the child and of the petitioner. The order of the court
may include, but is not limited to, the following:
(a) That exchange of a child between parents shall occur at a
protected location.
(b) That parenting time be supervised by another person or
agency.
(c) That the perpetrator of the abuse be required to attend and
complete, to the satisfaction of the court, a program of
intervention for perpetrators or any other counseling program
designated by the court as a condition of the parenting time.
(d) That the perpetrator of the abuse not possess or consume
alcohol or controlled substances during the parenting time and
for 24 hours preceding the parenting time.
(e) That the perpetrator of the abuse pay all or a portion of
the cost of supervised parenting time, and any program designated
by the court as a condition of parenting time.
(f) That no overnight parenting time occur.
Enrolled House Bill 2311 (HB 2311-INTRO) Page 2
(7) The State Court Administrator shall prescribe the content
and form of the petition, order and related forms for use under
ORS 107.700 to 107.735. The clerk of the court shall make
available the forms and an instructional brochure explaining the
rights set forth under ORS 107.700 to 107.735.
(8) If the court orders relief:
(a) The clerk of the court shall provide without charge the
number of certified true copies of the petition and order
necessary to provide the petitioner with one copy and to effect
service and shall have a true copy of the petition and order
delivered to the county sheriff for service upon the respondent,
unless the court finds that further service is unnecessary
because the respondent appeared in person before the court. In
addition and upon request by the petitioner, the clerk shall
provide the petitioner, without charge, two exemplified copies of
the petition and order.
(b) The county sheriff shall serve the respondent personally
unless the petitioner elects to have the respondent served
personally by a private party or by a peace officer who is called
to the scene of a domestic disturbance at which the respondent is
present, and who is able to obtain a copy of the order within a
reasonable amount of time. Proof of service shall be made in
accordance with ORS 107.720. When the order does not contain the
respondent's date of birth and service is effected by the sheriff
or other peace officer, the sheriff or officer shall verify the
respondent's date of birth with the respondent and shall record
that date on the order or proof of service entered into the Law
Enforcement Data System under ORS 107.720.
(c) No filing fee, service fee or hearing fee shall be charged
for proceedings seeking only the relief provided under ORS
107.700 to 107.735.
(9) If the county sheriff:
(a) Determines that the order and petition are incomplete, the
sheriff shall return the order and petition to the clerk of the
court. The clerk of the court shall notify the petitioner, at the
address provided by the petitioner, of the error or omission.
(b) After accepting the order and petition, cannot complete
service within 10 days, the sheriff shall notify the petitioner,
at the address provided by the petitioner, that the documents
have not been served. If the petitioner does not respond within
10 days, the sheriff shall hold the order and petition for future
service and file a return to the clerk of the court showing that
service was not completed.
(10)(a) Within 30 days after a restraining order is served
under this section, the respondent therein may request a court
hearing upon any relief granted. The hearing request form shall
be available from the clerk of the court in the form prescribed
by the State Court Administrator.
(b) If the respondent requests a hearing under paragraph (a) of
this subsection, the clerk of the court shall notify the
petitioner of the date and time of the hearing, and shall supply
the petitioner with a copy of the respondent's request for a
hearing. The petitioner shall give to the clerk of the court
information sufficient to allow such notification.
(c) The hearing shall not be limited to the issues raised in
the respondent's request for hearing form. If the respondent
seeks to raise an issue at the hearing not previously raised in
the request for hearing form, or if the petitioner seeks relief
at the hearing not granted in the original order, the other party
Enrolled House Bill 2311 (HB 2311-INTRO) Page 3
shall be entitled to a reasonable continuance for the purpose of
preparing a response to the issue.
(11) If the respondent fails to request a hearing within 30
days after a restraining order is served, the restraining order
is confirmed by operation of law. The provisions of this section
are sufficient to meet the due process requirements of 18 U.S.C.
922(g) in that the respondent received actual notice of the right
to request a hearing and the opportunity to participate at the
hearing but the respondent failed to exercise those rights.
{ + (12) Service of process or other legal documents upon the
petitioner is not a violation of this section if the petitioner
is served as provided in ORCP 7 or 9. + }
SECTION 2. ORS 163.730 is amended to read:
163.730. As used in ORS 30.866 and 163.730 to 163.750, unless
the context requires otherwise:
(1) 'Alarm' means to cause apprehension or fear resulting from
the perception of danger.
(2) 'Coerce' means to restrain, compel or dominate by force or
threat.
(3) 'Contact' includes but is not limited to:
(a) Coming into the visual or physical presence of the other
person;
(b) Following the other person;
(c) Waiting outside the home, property, place of work or school
of the other person or of a member of that person's family or
household;
(d) Sending or making written or electronic communications in
any form to the other person;
(e) Speaking with the other person by any means;
(f) Communicating with the other person through a third person;
(g) Committing a crime against the other person;
(h) Communicating with a third person who has some relationship
to the other person with the intent of affecting the third
person's relationship with the other person;
(i) Communicating with business entities with the intent of
affecting some right or interest of the other person;
(j) Damaging the other person's home, property, place of work
or school; { - or - }
(k) Delivering directly or through a third person any object to
the home, property, place of work or school of the other person
{ - . - } { + ; or
(L) Service of process or other legal documents unless the
other person is served as provided in ORCP 7 or 9. + }
(4) 'Household member' means any person residing in the same
residence as the victim.
(5) 'Immediate family' means father, mother, child, sibling,
spouse, grandparent, stepparent and stepchild.
(6) 'Law enforcement officer' means any person employed in this
state as a police officer by a county sheriff, constable, marshal
or municipal or state police agency.
(7) 'Repeated' means two or more times.
(8) 'School' means a public or private institution of learning
or a child care facility.
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Enrolled House Bill 2311 (HB 2311-INTRO) Page 4
Passed by House February 26, 2009
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 19, 2009
...........................................................
President of Senate
Enrolled House Bill 2311 (HB 2311-INTRO) Page 5
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled House Bill 2311 (HB 2311-INTRO) Page 6