Protective orders are also referred to as protection, harassment, or restraining orders. If a protective order is granted, the defendant (called the respondent) is prohibited from certain actions towards the applicant (called the petitioner). The protective order can limit contact with a person or place and also grant temporary custody for a short period of time if a child is also at risk of harm or harassment. Anyone can apply for a protection order and there are few costs involved.
There are three main types of protective orders in Nebraska:
- (1) A domestic abuse protection order
- (2) Harassment protection order
- (3) The sexual assault protection order
Protective Orders in Nebraska & How They Affect Your Child Custody Case?
Both applying for a protective order and defending against one in court might have a profound effect on a child custody case. Here’s how protective orders in Nebraska can affect your child custody case.
Protection Order Process
The applicant (called the Petition) completes the required forms to request a protection order. A parent can include their children as co-petitioners on the protection order. The forms include a petition with sworn statement (called an affidavit) as to why the party is seeking protection from abuse or harassment. A parent can ask for the Court to prohibit all contact by the other parent with not only the applying parent but also with any children included as a co-petitioner. The judge reviews the protection order requests and generally has three choices:
- The judge grants an emergency ex parte order. This means the judge grants the protection order based on the petition and affidavit alone and without a hearing. The protection order becomes effective on the defendant upon being served by the sheriff with it. If the defendant wants to dispute the protection order, then the defendant must file a request for hearing with the Court within 10 days. Filing the request for hearing within 10 days is a hard deadline. If the defendant fails to file the request for hearing on time, then the protection order remains in effect for one year.
- The judge finds that the petition and affidavit don’t meet the requirements to grant a protection order and deny the request without a hearing.
- The judge sets the protection order for hearing (called a show cause hearing) without granting an emergency order and without requiring the defendant to request the hearing. The Court then decides at the hearing whether a protection order should be granted or not.
Who Can Apply for a Protective Order?
Anyone who feels that it is necessary can petition the Court for a protection order. A parent can include their children. The forms are available on the Judicial Branch of Nebraska’s website and also in person at your local courthouse. The applicant will be asked to fill in the relevant forms with their statistical information (birth dates, addresses, etc) and information pertaining to why they are requesting the specific protective order. This often includes evidence of events, such as specific incident dates. It can include attachments such as copies of text messages or police reports to support the protection order request. The applicant must provide address information for the defendant. The sheriff won’t be able to try to serve the defendant without the applicant providing the defendant’s address to the sheriff.
Custody Order within a Protection Order
Although the Court can grant a temporary custody order within the protection order, these are generally only granted for a short period of time, such as 60 or 90 days. Since there may be a different judge assigned to the protection order case, even a temporary custody order in a protection order can tie the hands of the custody case judge at least until the temporary custody order expires.
Further, if a protection order is granted that prevents the non-custodial parent from having any contact with the child, this can tie the hands of the custody case judge for the full year from the time the protection order is granted. Thus, a parent can win or lose custody by whether the protection order includes the child. Again, it is very important for the non-custodial parent to request a hearing within 10 days if they want to contest an ex parte protection order.
Although a protection order can grant temporary custody for a short period of time, they are not a long term replacement for a child custody order. Further, sometimes an applicant claims they fear for the child’s safety with the other parent when they really fear that the other parent will have more parenting time than what they think is best for the child. Requesting a protection order when the real dispute is custody can backfire on the applicant parent.
If the protection order request is denied, the Court may find the request for a protection order as an example of parental alienation. The protection order request is effectively asking the Court to allow the other parent no contact with the child for a full year if the child is included as a petitioner. If there is not a true risk of harm to the child, then it is better to file a custody case than to include the child as a petitioner on a protection order.
When child custody is at issue, the Court can remove the child as a party to the protection order and grant an exception to no contact rule by allowing an exception for conversations between the parents regarding their child.
Can You Appeal?
If you are on the defending side of a protective order and you feel that your rights (or your children’s rights) have been violated, an appeal is possible. Unfortunately, the appeal process takes many months if not a full year before the appellate court decides the matter. The protection order could expire before the appellate court hears the appeal. To contest a protection order, it is of the utmost importance to request a hearing within 10 days and to make your best case at the protection order hearing. If the 10 days pass without a request for hearing or the judge grants the protection order after a hearing, you may be out of luck and without contact with your child until the protection order expires in a year.
Suggested reading includes official resources from the State of Nebraska Judicial Branch which applies to protective orders and the most common questions from applicants and defendants. [Nebraska Judicial Branch Protection Order Information]
Do I Need a Lawyer?
Because a protection order can last a full year, and by annually renewed, it is important to present your best case. Lawyers have experience and knowledge of how the court procedure works and what the judge most wants to hear. They have experience with the best methods of present the application and the best methods to prepare evidence and subpoena witnesses to defend against one. Whether defending or applying, seek the services of a legal professional for the best results.
Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha
Child Custody | Child Support | Divorce Lawyers Omaha
If you are looking for an attorney in a child support case in Omaha, Nebraska, or the surrounding areas (including Papillion, Bellevue, Gretna, Elkhorn, Lincoln, Nebraska City, Sarpy, Lancaster), contact our office to set up a consultation.