Restraining orders are directives issued by a court of law that prohibit or restrain a named individual from taking action that hurts, abuses, harasses or frightens another person. By restraining an abuser, a restraining order protects the victim and their family. These court orders are sometimes called orders of protection.
All states offer restraining and/or protection orders to their residents, but the requirements and procedures to obtain one vary among states. In Nebraska, a victim of abuse or harassment can get a restraining order or a protection order to prevent domestic violence, sexual abuse or harassment.
Restraining Order vs. Protection Order
In some states, the terms restraining order and protection order (or order of protection) are used interchangeably. However, this is not the case in Nebraska, where there is a difference between the two terms.
In Nebraska, both a restraining order and an order of protection are intended to prevent one individual from injuring, threatening, harassing or abusing another person. However, restraining orders are only available if the two parties are already involved in a legal proceeding together. For example, if a couple is in the process of divorcing, and one wishes protection against the other, they would apply to the divorce court for a restraining order. A protection order may also be appropriate to prevent a divorcing spouse from incurring debt, selling real estate, disposing of assets or leaving the state.
On the other hand, orders of protection are stand-alone orders. In Nebraska, a victim of domestic abuse, sexual abuse, or harassment can seek an order from the court for protection. The three types of protective orders available in Nebraska are termed domestic violence protection orders, sexual assault protection orders and harassment protection orders.
What Are Orders of Protection?
A Nebraska protection order is a legal document issued by a state court that prohibits or restricts specified types of contacts by the individual named in the order. In order to get a protection order, the victim must advise the court that the person to be restrained has abused them or harassed, threatened or injured them in the past and may do so again. They file a petition for the appropriate type of protection order.
In most states, including Nebraska, the most common type of protection order is for domestic abuse. These orders are intended to protect an individual (and their children, family members and pets, if applicable) from abuse or harassment by a partner or family member. Because the matter is civil, not criminal, the person seeking the order is termed the petitioner, while the person to be restrained is called the respondent. By means of the protection order, the court directs the respondent to stop the behavior and, usually, to stay away from the petitioner.
Domestic Violence Protection Order
Although the term domestic abuse is most often used to describe abuse of one spouse by the other, Nebraska law uses a more expansive definition in the protection order statute. For protection order purposes, domestic violence can occur between family or household members, including not just current spouses, but also:
- Former spouses.
- Individuals who live together currently.
- Individuals who have lived together in the past.
- Couples who have a child in common whether or not they live together or are married.
- People who are related to each other by blood.
- People related to each other by marriage.
- Individuals who are dating or who have dated each other in the past.
Domestic abuse under Nebraska law includes acts that cause physical injury, but that's not all. It can also include attempting to cause bodily injury, threatening another person with physical injury, and engaging in sexual contact without consent. To rise to the level of domestic abuse for a protection order in Nebraska, threats can be either verbal, written or electronically communicated, or implied by a pattern of conduct. In order for the threat to be credible, the person making it must have the apparent ability to carry out the threat.
Sexual Assault Protection Order
When a person suffers a sexual assault by a partner or family member, they can obtain a domestic violence protection order under Nebraska law. However, if a victim of a sexual assault has no familial or personal connection to the offender, they are not eligible for a domestic violence order. That's why Nebraska law sets out a second type of protection order for sexual assault victims. To apply for this order, a petitioner need not have any prior relationship whatsoever with the respondent.
For purposes of the sexual assault protection order, the term sexual assault includes sexual assault or attempted sexual assault without the consent of the victim. Showing that the act was nonconsensual is not required if the perpetrator has reason to know that the victim was physically or mentally unable to resist, or if the perpetrator was at least 19 years old and the victim was not more than 16 years old.
Harassment Protection Order
An individual may also petition for a protection order in Nebraska to prevent continued harassment. This is termed a "course of conduct" crime action and requires repeated behavior that threatened or interfered with the victim.
Behaviors classified as harassment for the purposes of Nebraska's harassment protection order include making repeated telephone calls, repeatedly stalking or physically detaining the victim, or other actions that serve no legitimate purpose and seriously terrify, threaten or intimidate the other person.
Petitioning for a Protection Order
In order to obtain any of these three types of protection orders in Nebraska, the individual seeking the order must:
- Obtain and fill out the appropriate forms.
- File those protection order forms with the appropriate court.
- Wait while the forms are reviewed by a judge.
The requisite forms for any of these orders of protection include a petition and affidavit, in which the victim sets out the name of the respondent; their own contact information; and a statement of the events that led to the need for the protective order. The person must also complete a Praecipe form, providing information about where the respondent can be found. The forms must be taken to the district court in the area where either the petitioner or respondent lives or where the abuse took place. The petitioner can obtain these forms at the courthouse, and they are also available to download from the State of Nebraska Judicial Branch website.
Once the forms are filed, the clerk takes them to a judge to review. The judge may have the petitioner answer some questions. If the court believes the petitioner to be in immediate danger, it issues an ex parte order of protection. Ex parte means that only one party is present in court, and the other party has not been told about, or required to appear at, the hearing. If the court does not issue the ex parte order, it will schedule a noticed hearing within 14 days.
Obtaining a Final Order
If the court issued an ex parte order, it will be served on the person to be restrained by law enforcement, along with a form they can fill out requesting a show-cause hearing. That person has 10 business days from the date of service to request the hearing. If they do so, the court will schedule a hearing. If they do not do so, the court will make the ex parte order effective for one year.
Preparing for a Court Hearing
If the respondent asks for a hearing, both parties should appear and offer evidence about what happened. If the respondent fails to attend, the court grants the final protection order. If the petitioner misses this hearing, the court will dismiss the case. If both parties appear, the court hears evidence from both. They may be represented by attorneys, but this is not required.
The petitioner should prepare thoroughly for the hearing. They should produce any evidence of the abuse or harassment, such as text messages, writings, photos, medical records, police records and anything else that can help to establish the facts of the case. Witnesses with personal knowledge of the facts of the case should also be asked to appear and testify.
The judge may ask questions of the parties themselves and/or their witnesses. When the hearing is over, the court will make a ruling and either grant or deny the petitioner's request for a final order of protection.
Contents of Protection Order
The Nebraska court has broad authority to include any provisions in a protection order as it feels are necessary to keep the petitioner and their family members safe. For example, a judge might include language prohibiting the person from harassing, threatening, assaulting, molesting, or imposing any restraint upon the petitioner or on the petitioner’s freedom. It can also prohibit the respondent from having any contact with the petitioner.
As part of a domestic violence order, the court can tell the respondent to leave a shared home, even if the respondent owns or rents the property. It can also include provisions about temporary custody of minor children, ordering the respondent to stay away from the petitioner’s workplace or the children’s school, and prohibiting the respondent from possessing or buying a firearm.
Extending the Order of Protection
A final protection order in Nebraska is effective for one year. The petitioner can get the order extended, or renewed, for an additional year. To do so, they must file a petition and affidavit to renew the protection order. These forms must be filed within the 45 days before the order is set to expire. The renewed order is effective from the day after the current order expires, which is one year from the date it came into effect.
It is a common misconception that there must be additional incidents to get a protection order renewed. This is not the case. The petitioner can get the protection order renewed even if there has been no additional incident as long as they are not seeking any modifications to the order, and the respondent has been served with notice of the petition for renewal and notice of the hearing but doesn’t show up at the hearing.
Penalties for Violating Protective Order
Under Nebraska statutes, an offender who knowingly violates any term of an order of protection may be subject to criminal penalties. Violating an order of protection is a Class I misdemeanor in Nebraska if it is the abuser’s first offense. If the person has a prior conviction for violating a protection order, a subsequent violation is a Class IV felony.
What penalties apply if an individual is convicted of violation of an order of protection? For a first offense, an offender is fined by the court in an amount not to exceed $500. They may also be imprisoned in the county jail for a term not to exceed six months, or the court may order both a fine and jail time.
- Womens Law: Nebraska Restraining Orders
- State of Nebraska Judicial Branch: How to Prepare for a Protection Order Hearing
- State of Nebraska Judicial Branch: Protection Order Form Guide
- State of Nebraska Judicial Branch: Filing for a Protection Order Frequently Asked Questions
- Vacanto Shattuck Law: Protection Orders
- Nebraska Court: Protection Order Forms
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.