Nebraska Revised Statute 26-109

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Chapter 26

26-109.

Ex parte protection order; duration; notice requirements.

(1) A protection order may be issued or renewed ex parte to the respondent if it reasonably appears from the specific facts included in the affidavit that:

(a) For a domestic abuse protection order, the petitioner will be in immediate danger of abuse before the matter can be heard on notice; or

(b) For a harassment protection order or a sexual assault protection order, irreparable harm, loss, or damage will result before the matter can be heard on notice.

(2) For a harassment protection order, the court may decline to issue or renew a protection order ex parte to the respondent if the specific facts included in the affidavit (a) do not show that the petitioner will suffer irreparable harm, loss, or damage or (b) show that, for any compelling reason, an ex parte order should not be issued or renewed. If the court declines to issue or renew an ex parte harassment protection order, the court may dismiss the petition without prejudice or schedule an evidentiary hearing as provided in section 26-108.

(3) If a protection order is issued or renewed ex parte, such order is a temporary order and the court shall forthwith cause notice of the petition and order to be given to the respondent. The court shall also cause a form to request a show cause hearing to be served upon the respondent. If the respondent wishes to appear and show cause why the order should not remain in effect, he or she shall affix his or her current address, telephone number, and signature to the form and return it to the clerk of the district court within ten business days after service upon him or her.

(4) Upon receipt of a timely request for a show cause hearing or upon the request of the petitioner, the court shall immediately schedule a show cause hearing to be held within thirty days after receipt of such request and shall notify the petitioner and respondent of the hearing date. The court may also schedule such hearing on its own motion. If the respondent appears at the hearing and shows cause why such order should not remain in effect, the court shall rescind the temporary order.

(5) A temporary ex parte order shall be affirmed and deemed the final protection order and service of the temporary ex parte order shall be notice of the final protection order if the respondent has been properly served with the temporary ex parte order and:

(a) The respondent fails to request a show cause hearing within ten business days after service upon him or her and no hearing was requested by the petitioner or upon the court's own motion;

(b) The respondent has been properly served with notice of any show cause hearing and fails to appear at such hearing; or

(c) The respondent has been properly served with notice of any show cause hearing and the protection order was not dismissed at the hearing.

Annotations

  • In considering whether to continue an ex parte domestic abuse protection order following a finding that domestic abuse has occurred, a court is not limited to considering only whether the ex parte order was proper, but may also consider a number of factors pertinent to the likelihood of future harm. Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d 841 (2018).

  • Whether domestic abuse occurred is a threshold issue in determining whether an ex parte protection order should be affirmed; absent abuse as defined by the Protection from Domestic Abuse Act, a protection order may not remain in effect. Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d 841 (2018).

  • When a petition and affidavit for a domestic abuse protection order satisfy the requirements of section 42-924, the court is required to issue an ex parte domestic abuse protection order or schedule an evidentiary hearing. Jacobo v. Zoltenko, 30 Neb. App. 44, 965 N.W.2d 32 (2021).

  • The 5-day period to file a show cause hearing request as set forth in subsection (1) of this section is directory and not mandatory. Accordingly, failing to file a request for a show cause hearing within that 5-day period does not preclude the later filing of a motion to bring the matter back before the court, including the filing of a motion to vacate an ex parte order. Courtney v. Jimenez, 25 Neb. App. 75, 903 N.W.2d 41 (2017).

  • This section does not procedurally limit a litigant's right to call witnesses at a show cause hearing. Zuco v. Tucker, 9 Neb. App. 155, 609 N.W.2d 59 (2000).