Domestic violence can profoundly impact divorce and custody decisions. Whether it’s securing immediate protection, addressing custody concerns, or finalizing a divorce, accessing appropriate legal resources can make all the difference. This blog explores how domestic violence can influence these legal matters.
How Domestic Violence Affects Divorce and Custody Decisions
Emergency Situations
If you are in an emergency, get yourself and your children somewhere safe while the perpetrator is away. While a protection order can help encourage a perpetrator to stay away, it doesn’t physically stop a physical assault in the moment. Even if you are of limited means, there are local shelters and domestic violence organizations that can help you in your immediate need. Call 911 or local law enforcement if your safety is in immediate risk or if you believe a crime is being committed.
However, it is better to remove yourself from the situation before the need for law enforcement (or before the need for law enforcement to come again) if possible.
Note that all City of Omaha fire stations are available as “safe houses” for immediate protection prior to police arrival. Get to somewhere safe.
For more information on options available in the Omaha, Nebraska-area, see the City of Omaha Website.
Planning Can Make All the Difference
However, if danger is not imminent, it may be time to plan. Leaving a domestic violence situation is rarely as easy as just walking out the door. Attorneys and organizations that work with domestic violence victims understand that. Having a plan can increase your odds of getting out quickly and permanently. It helps avoid the heartbreaking situation where the victim “goes back” to the abuser when they feel they have no choice or that it is the better option. What your plan entails depends on the specific situation.
Know that there is help. For example, if you are financially reliant on the abuser, rent and utility assistance is available for short-term help. You can receive assistance in applying for services such as Medicaid and SNAP (sometimes called food stamps) to provide you and your children a safety net of protection. If you had to leave with just the clothes on your back, there are services that help offer clothes and shoes to survivors and their children. Once your immediate short-term needs are met, free counseling and career services are available.
The Women’s Center for Advancement has more information for these types of services available in the Omaha, Nebraska-area. See their website for a list of victim services available.
Depending on your situation, you may be able to set up a job and housing as part of your plan for departure so that you are not dependent when you leave.
Consulting with an attorney is often part of the plan. Knowing your rights and the legal avenues available can help you make educated decisions about your future, even in a time of crisis.
Protection Orders
One common legal avenue to pursue is the protection order. There is no cost to file for a protection order and you do not need an attorney to do so. While the courthouse staff is not able to get legal advice, they can answer basic questions about completing the forms and filing the documents.
The Nebraska Supreme Court has a copy of the forms and an online guide available for free. See the Nebraska Supreme Court’s website for more information.
In Nebraska, you can include yourself, your children, and your pets on the protection order request.
If the Court grants the protection order and states that the other party cannot contact you, then any contact with you is a violation of the protection order and thus a crime. If the party violates the protection order, contact law enforcement and make a report.
Keep in mind that if you have children together, the Court may limit the protection order’s terms so that the parent’s relationship with the children will not be completely severed. Generally, you also will benefit by filing a custody and/or divorce case. This way, you can address the ongoing custody and parenting time issues even when a protection order is also necessary. This is especially needed if Court decides to exclude the children from the protection order or the protection order allows contact between the parents regarding the children.
For example, the protection order may include the children to grant you temporary custody but only for a relatively short period of time (usually for a month or a few months). The idea here is that the children are protected under the protection order for only a short period of time to give you time to file a custody case. The custody case will then address the custody and parenting time issues in a much more comprehensive and long-lasting manner than the protection order.
No Contact Orders
If criminal charges are pending for domestic violence, it is common for the criminal case to include a “no contact” provision prohibiting the defendant from having contact with the victims while the criminal case is pending. This can include the children if the children were also victims to or witnesses of the domestic violence. Keep in mind that the “no contact” order is generally dismissed once the criminal case goes to a plea and/or sentencing. It can also be dismissed prior to such time if the Judge in the criminal case orders it. Thus, if there is a “no contact” order in the criminal case, the best practice is generally to file a custody or divorce case as well. This way you will have a custody order in place that will remain effective after the “no contact” order expires.
Special Issues when Moving Out of State
If your support system is in another state, you may decide you want to move to get away from the abuse. If you do not have children together, this is often a good option and you do not generally need court permission for an adult to move.
However, if you have children together, you may need court permission to move the children out of state. If you already have a custody order in place, you generally are required to get a court order to give you permission to move the children out of state before you can move them out of state. If this applies to you, you generally do NOT want to move your children from their schools and move them out of state without a court order or you may likely face repercussions from the Court for moving without a court order.
If you and the other parent are not married and there is not already a custody order, then you generally do NOT first need a court order to move the children out of state. Even in this situation, there is a caveat. If you move the children out of state without a court order, the Court can order them back to Nebraska immediately if a custody action is filed in Nebraska within 6 months of the move. Especially if the action is filed soon after the move, the Court may order the children back to Nebraska and back to their prior schools while the custody case is pending.
If you are thinking of moving the children out of state, you will want to speak with an attorney before doing so. There are special rules for out of state moves and you will want to know your rights and the rules before making the move.
Temporary and Emergency Custody Orders
The most comprehensive order regarding the children is the custody order. If the parents are married, the custody order is generally a part of the divorce decree. The final custody order will generally include a parenting plan, which is a detailed document including set parenting time, holidays, communication methods, etc.
For more information regarding parenting plans, see the blog regarding parenting plans.
The Court can also issue emergency and temporary custody orders. If there is an immediate safety concern, you can file for an emergency order of temporary custody which can be granted the same day as filed, even without a hearing. The emergency custody order often grants one parent custody and denies the other parent all contact with the children immediately.
If the emergency custody order is granted, then the Court will set for a hearing within about 10 days from the order being entered. At this hearing, the Judge will then hear both sides and the emergency custody order is generally turned into a temporary custody order.
You can file for a temporary custody order without first requesting the emergency order. Although filing for a temporary custody order won’t result in an immediate order, the Court will generally hear your custody issues within about two weeks to a month (depending on the court’s hearing availability) from the filing the temporary custody order request. Thus, you can get a temporary order in place relatively quickly even if not immediately.
Unlike a protection order which generally grants or denies contact, the temporary custody order can be much more nuanced. For example, a temporary custody order may allow contact with the children so long as the parenting time is supervised. Alternatively, it could give the parent parenting time with specific start and stop times for the parenting time. This way the custodial parent has some confidence that the children will be returned after the visit. It can include things like Facetime contact or phone time with the children. The temporary custody order also can address things like parenting time for upcoming holidays or school breaks.
The temporary order also generally includes the financial provisions as well, such as for child care costs, child support, and health insurance expenses. The temporary custody order stays in place until the custody case or divorce action goes to the final Order. The final custody order or divorce decree will generally include a parenting plan, which is much more comprehensive than the temporary custody order and sets out the plan for parenting time until the children become adults.
Alimony and Temporary Attorney Fees in a Divorce
Whether or not you have children together, you can request alimony and temporary attorney fees as part of the divorce action if you are financially dependent on the other party.
There is no specific formula in Nebraska to determine alimony. Generally the Court looks at each party’s income and expenses and then calculates alimony if there is a financial need by one spouse and ability to pay by the other spouse. To first determine if alimony should be awarded, the Court looks at the overall situation of the parties. For example, if you have only been married a year, the Court may not decide to award alimony even if you are otherwise financially dependent on your spouse. If your marriage has been 20 plus years and you’ve been out of the workforce for many years, the Court may be much more likely to order some alimony while you brush up your work skills. Every case is different and the Court looks at the specific facts of the situation.
The Court can also award temporary attorney fees if the access to income and ability to pay for an attorney while the case is pending is otherwise unjust.
Both alimony and temporary attorney fees can be addressed at the temporary hearing. Especially in cases where the finances have been used to manipulate or control the other party, a temporary award of alimony or temporary attorney fees can provide some immediate relief.
Statutory Protections
Nebraska has a number of statutory protections for domestic violence victims. One that is commonly used to help protect victims when they have children together is Nebraska Revised Statute Section 43-2932. The full language can be found on the Nebraska Legislature’s website.
This statue moves the burden on the perpetrator to show that the provisions regarding custody and exchanges are going to protect the safety of the victims. The statute includes a list of potential safety strategies. Supervised parenting time as mentioned above is one option. Others include a neutral place to do exchanges or having communications limited to certain topics or a particular format, such as a parenting app. The restrictions can include denial of contact with specific third parties during the parenting time or restricting visits to day visits with no overnights. While it is possible for the Court to find that no contact between the parent and child is appropriate, it is much more common for the Court to allow some form of contact with safety restrictions in place.
Safety of the Parent Versus Safety of the Children
Keep in mind that you may effectively have two separate burdens in domestic violence cases. One is to prove that there needs to be safety restrictions in place to keep you safe and a second burden to prove that the children are also at risk. In some situations, it is clear that the person is a risk to both the other parent and the children. In other situations, the parent is appropriate around the children so long as the other parent and the conflict between the two of them is removed. It is possible for the Court to find that the parent can’t be trusted to have any direct contact with the other parent but that the children themselves are not otherwise at risk (or at least not at risk with the amount of parenting time that that parent is requesting).
Physical Abuse Versus Emotional Abuse
While both are clearly harmful, the evidence regarding physical abuse versus emotional abuse can look very different. The evidence of physical abuse may include things like police reports, photos of bruising, and medical reports. If there isn’t documentation or witnesses, sometimes it is just a matter of each person’s testimony. However, once the Court is convinced that the physical act occurred, you generally don’t have to further prove that it was harmful.
Emotional abuse can sometimes be harder to prove. The evidence of emotional abuse may include things like copies of e-mails or text messages showing poor communication and abusive language used by one party against the other. However, if most of the emotional abuse occurred in person, it can sometimes become he-said versus she-said as to what was said and in what context.
Further, there tends to be some negative language exchanged before it gets to the point of filing for a divorce or contested custody case. If it doesn’t rise to the level of severe or unusual compared to what the Court generally sees in these cases, the Court may not find that it rises to the level of emotional abuse necessary to trigger the additional statutory safeguards regarding abuse. Even if the Court believes the language or actions occurred, sometimes you need to provide further evidence that it rises to the level of harm to be emotional abuse and is beyond which has to some extent become “normal” compared to what a Judge sees in a divorce case. Unless your case is more on the extreme regarding emotional abuse, you may need to retain an expert to help explain that it rises to the level of emotional abuse in your specific situation.
Finding Professional Legal Advice
Navigating court procedures and understanding your legal rights can at first seem overwhelming, especially for victims of domestic violence. Don’t delay seeking help due to uncertainty about the process or fear of the unknown. Seeking professional advice can provide clarity, give you ways to protect yourself and your children, and develop a lasting plan to get safe and stay safe. Once you have a plan, navigating the paperwork and court processes often becomes far less intimidating. The first step is reaching out to the right resources—help is available, and you don’t have to face this alone.
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 custody, child support case, or divorce case in Omaha, Nebraska, or the surrounding areas (including Papillion, Bellevue, Gretna, Elkhorn, Douglas, and Sarpy), contact our office to set up a consultation.