At our law firm, we represent Nebraskans seeking to protect themselves from abusive spouses and partners through petitions for protection orders against domestic violence in state courts. We also oppose these petitions on behalf of wrongly accused people.
Nebraska law provides for protection orders to prevent contact between a victimized spouse or partner and his or her spouse or partner who presents a threat of domestic abuse. Someone in fear who seeks a protection order can ask a judge for that protection order by filing a form provided by the State.
The initial petition does not require notice to the other party (the “respondent” or the “subject” of the order) and a judge can issue a protection order on the basis of the written petition if the petitioner alleges that he or she is in “immediate danger of abuse” before notice is ever served on the subject and a hearing can be scheduled. This kind of protection order without notice or hearing is an “ex parte” protection order, which is temporary.
The respondent then gets notice of the ex parte order and has the option to request a “show-cause” hearing. The show-causehearing is for the purpose of the respondent to show why such an order should be dismissed and that the respondent has been wrongly accused. The court or the petitioner may also request a show-cause hearing. If the respondent cannot show at hearing that the judge should not have issued the protection order or if the respondent does not request a hearing or misses the hearing, the order becomes final.
What if the judge denies the ex parte request?
If a judge denies an ex parte protection-order request, the statute currently says that “the court shall immediately schedule an evidentiary hearing to be held within fourteen days …” In the current legislative session, Nebraska state Sen. Machaela Cavanaugh, D-Omaha, introduced a bill that would “clarify[y] that “an order not granted ex parte shall have a hearing within 14 days,” according to Sen Cavanaugh’s official Statement of Intent for the bill.
The Omaha World-Herald wrote that the senator believes current law does require judges to schedule hearings for ex parte petitions not initially granted, but that the legislation would “explicitly spell that out.”
The World-Herald article provides data about the resolution of ex parte protection-order petitions from Douglas County in 2018:
- Temporary protection order granted: 55.2 percent (1,856)
- Immediately denied with no hearing: 27.6 percent (929)
- Hearing scheduled to request additional evidence: 17.2 percent (577, of which about half are approved)
Under the process supported by Sen. Cavanaugh, judges would have been required to schedule hearings on all of those denied (929 less 577 equals 352 denied with no hearing scheduled). The World-Herald cites an attorney who believes that under current law judges are not scheduling hearings after denial if petitions do not meet statutory guidelines.
The article also notes that the Nebraska Bar Association has concerns about the strain on judicial dockets the law would create, especially in rural counties, but that the association hopes negotiated amendment can be reached.
As of this writing on April 8, the bill is before the Judiciary Committee, according to Westlaw. This legislative session will end on June 6.