Nebraska Revised Statute 26-103

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Chapter 26

26-103.

Domestic abuse protection order; petition, contents; relief granted.

(1) Any victim of domestic abuse may file a petition and affidavit for a domestic abuse protection order as provided in this section. The petition shall state the events and dates or approximate dates of acts constituting the alleged domestic abuse, including the most recent and most severe incident or incidents.

(2) Upon the filing of such a petition and affidavit in support thereof, the court may issue a domestic abuse protection order, without bond, granting the following relief:

(a) Enjoining the respondent from imposing any restraint upon the petitioner or upon the liberty of the petitioner;

(b) Enjoining the respondent from threatening, assaulting, molesting, attacking, or otherwise disturbing the peace of the petitioner;

(c) Enjoining the respondent from telephoning, contacting, or otherwise communicating with the petitioner;

(d) Removing and excluding the respondent from the residence of the petitioner, regardless of the ownership of the residence;

(e) Ordering the respondent to stay away from any place specified by the court;

(f) Awarding the petitioner temporary custody of any minor children for a period not to exceed ninety days. If the order grants such temporary custody, the order shall specify the number of days of custody granted unless otherwise modified by the court;

(g) Enjoining the respondent from possessing or purchasing a firearm as defined in section 28-1201;

(h) Directing that the petitioner have sole possession of any household pet owned, possessed, leased, kept, or held by the petitioner, the respondent, or any family or household member residing in the household of the petitioner or respondent;

(i) Enjoining the respondent from coming into contact with, harming, or killing any household pet owned, possessed, leased, kept, or held by the petitioner, the respondent, or any family or household member of the petitioner or respondent; or

(j) Ordering such other relief deemed necessary to provide for the safety and welfare of the petitioner and any designated family or household member.

(3) If sole possession of a household pet is ordered by a court pursuant to subdivision (2)(h) of this section, such possession shall be for the duration of the domestic abuse protection order or until further order of the court. The grant of sole possession of a household pet under such subdivision is not intended to permanently determine ownership of such household pet. The petitioner shall not permanently transfer, sell, or dispose of a household pet placed in the petitioner's possession without prior court approval, except that court approval shall not be required in cases where humane euthanasia of a seriously ill or injured household pet is recommended by a licensed veterinarian.

Annotations

  • A new act of abuse is not a prerequisite for renewal of a domestic abuse protection order; however, it may be considered in determining the continuing likelihood of future harm. Garrison v. Otto, 311 Neb. 94, 970 N.W.2d 495 (2022).

  • An evidentiary hearing on the petition for renewal should be held, unless the respondent fails to appear or indicates he or she does not contest the renewal. Garrison v. Otto, 311 Neb. 94, 970 N.W.2d 495 (2022).

  • Because the question of the likelihood of future harm and the relative equities of the case pertain to a different effective period of time, the court's prior determinations of these matters are not law of the case. Garrison v. Otto, 311 Neb. 94, 970 N.W.2d 495 (2022).

  • The purpose of a hearing on the petition for renewal is to receive evidence so that the court may reweigh the burdens the order will inflict against its benefits in light of all the relevant circumstances, including what has or has not changed since its issuance. Garrison v. Otto, 311 Neb. 94, 970 N.W.2d 495 (2022).

  • The requisite past act of domestic abuse is necessarily found in relation to the underlying protection order; it is law of the case and not to be relitigated simply because the petitioner seeks a renewal of the order. Garrison v. Otto, 311 Neb. 94, 970 N.W.2d 495 (2022).

  • Not only is the recipient or target of a credible threat a "victim" of abuse eligible for a domestic abuse protection order under this section, so too are those family members for whose safety the target reasonably fears because of the threat. Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019).

  • Appeals involving the granting of a protection order will almost always be moot before the case is heard because of the time-limited nature of a protection order. However, under certain circumstances, an appellate court may entertain the issues presented by a moot case. Hauser v. Hauser, 259 Neb. 653, 611 N.W.2d 840 (2000).

  • Effective July 15, 1998, this section no longer covers harassment protection orders, but applies to domestic abuse protection orders only. Hron v. Donlan, 259 Neb. 259, 609 N.W.2d 379 (2000).

  • A protection order pursuant to this section is analogous to an injunction. Elstun v. Elstun, 257 Neb. 820, 600 N.W.2d 835 (1999); Hronek v. Brosnan, 20 Neb. App. 200, 823 N.W.2d 204 (2012); Cloeter v. Cloeter, 17 Neb. App. 741, 770 N.W.2d 660 (2009); Devor v. Devor, 7 Neb. App. 549, 584 N.W.2d 670 (1998).

  • Speech that is not threatening, intimidating, or terrifying is protected by the First Amendment, and any application of a protection order under this section that would prohibit such speech is applied in an unconstitutional manner. State v. McKee, 253 Neb. 100, 568 N.W.2d 559 (1997).

  • Even though a court has subject matter jurisdiction to hear a request for a domestic abuse protection order, the defendant may file to transfer the action to a more appropriate venue pursuant to section 25-403.01. Jacobo v. Zoltenko, 30 Neb. App. 44, 965 N.W.2d 32 (2021).

  • A domestic abuse protection order did not violate the defendant's constitutional rights to free speech because the defendant's conduct in contacting the victim violated the protection order and the protection order itself did not burden more speech than necessary to serve a significant government interest. State v. Doyle, 18 Neb. App. 495, 787 N.W.2d 254 (2010).

  • The Protection from Domestic Abuse Act allows any victim of domestic abuse to file a petition and affidavit for a protection order. Cloeter v. Cloeter, 17 Neb. App. 741, 770 N.W.2d 660 (2009).

  • Subsection (3)(b) of this section sets forth an enhancement provision, not a separate criminal offense, which simply authorizes a court to increase the sentence for recidivists. State v. Rubek, 11 Neb. App. 489, 653 N.W.2d 861 (2002).

  • Allegations contained in application and attached affidavit requesting issuance of a protection order were too general to support such an order. Buda v. Humble, 2 Neb. App. 872, 517 N.W.2d 622 (1994).