Tracy Hightower-Henne: All right, so on today’s Podcast, we’re going to be talking about part two of our protection order series, and we have you get a threesome today. Ok, yeah, Erin. All right. But there’s three of us here. There’s three of us here, a triangle triple threat. So triple threat of Erin Wetzel, Susan Raff and me, Tracy Hightower. Honey, you guys did. You guys did part one of protection orders, scowls. We you? Yep. Not guys. You’re right. You, you all. The two of you.
Erin Wetzel: Guys can technically be plural for a cohesive group of men and women just like men is considered plural for women.
Tracy Hightower-Henne: Yeah, but we’re trying to stop that. We can use non gender specific friends, folks. You all. Hey, you! Hey, you! Yep. Hey, you guys. I did it again.
Susan Reff: See, it’s hard. It’s really hard. And the more you think about it, the more you hear other people doing it. And you’re usually in a situation where you can’t correct them because they’re speaking to a large group of people right
Erin Wetzel: Now, you should just stand up and shout at them.
Susan Reff: I write it on comic.
Erin Wetzel: You should see if you get kicked out of the event. Escort her out.
Tracy Hightower-Henne: So actually, I heard someone say once that was really fascinating, that when teachers use it to elementary age students in a classroom, actually little girls stop listening because when a teacher says, Hey, you guys? They take it literal in the sense of, well, they must not be talking to me. And then they stop listening. And so it can actually be really detrimental to young people.
Susan Reff: A lot of my teacher friends call everyone friends. They’re like, Hey, friends, hey, friends.
Erin Wetzel: True, that’s what daycare calls everybody to perfect. Great. They say friends today. Everybody and their friends today did this.
Susan Reff: Yeah. Instead of saying all the kids or
Erin Wetzel: I don’t even know who who knows.
Tracy Hightower-Henne: Great, so protection orders, part two segueway,
Susan Reff: You should have Segway music
Erin Wetzel: Faded out, Matt.
Tracy Hightower-Henne: Matt’s on it right now. You’re going to hear a Segway music did maybe or will this do it ourselves? Blah blah blah. The circus music
Erin Wetzel: Is appropriate, right? What about Britney Spears circus music?
Tracy Hightower-Henne: Yes. Oh yeah, that’s going to be coming up soon,
Erin Wetzel: Meaning her CD circus.
Tracy Hightower-Henne: Oh, we’ll have to do an update on Britney. We do need to do an update pretty soon on her. But not today.
Susan Reff: So this is a real awesome treat to have all three of us here because Erin and I do the majority of the protection orders in the office. And I think probably Erin and I have the most experience so we can give a lot of like real world tips and tricks about protection orders. And the first thing we’re going to talk about is what happens in a protection order hearing. And I think one thing to remember is a protection order hearing is no different than any other court hearing, right? I mean, there’s a judge, there’s a court reporter. The rules of evidence apply. The decorum required in a court hearing must happen, right? But because of the nature of the things people talk about, they take it less seriously. I think,
Tracy Hightower-Henne: Well, depends, right? It depends on the allegations in the petition. I was going to say the one thing that’s usually different actually physically in the courtroom is there’s usually a sheriff in the courtroom during protection order hearings, right?
Erin Wetzel: Kind of keep the peace. And especially if the protection order is already in effect, then technically those people aren’t supposed to be having contact with each other. Right. And it could get a little heated.
Susan Reff: So I actually had a client who I was representing when we were defending against a protection order, so the judge had already issued it. It was already in place and we were contesting it. And he was like, I don’t think I can go to the courthouse because she’ll be there. And I said, now, if you were there because you knew she was going to be there for something else and you were just there to see her, yes, you should not go. But I think there’s a small exception that you can be in the same room for your court case on the actual protection order. And he was really like, confused. He was like, You meet me at the front door because I don’t want to get arrested. And I was like, Yes, I will.
Tracy Hightower-Henne: No one else cares that much, except for that one guy.
Erin Wetzel: Yeah, yeah, I’ve never had somebody asked me that.
Tracy Hightower-Henne: Yeah, but technically it’s true.
Erin Wetzel: Well, not necessarily, because I think we talked about this in the last podcast. Maybe we touched on it, but none of our protection orders actually tell you that you can’t be within a certain number of feet. I think in terms of the media and TV shows and movies, when you see that there’s always kind of the you have to be a hundred feet away, and then they talk about the stories about this person goes one hundred and one feet away and stands there and stares creepily at the person. And none of our protection is actually say that that you can’t be within a certain area of the person.
Susan Reff: It just says you can’t have contact with them. And it does sometimes say you can’t go to their home or their place of work or, you know, other places they might frequent. It would school for their kids, right?
Tracy Hightower-Henne: So if we’re having a hearing in a protection order case, we’re either having a hearing where the judge is going to decide whether to grant the protection order after the petition is filed or whether to keep the protection order in place that’s already been granted after petition is filed. Right? Correct. What happens in the hearing? And maybe we assume that, you know, we’re representing our client, which ultimately the same or similar things can happen in a hearing. Even if you are pro, say, or without a lawyer. Right?
Erin Wetzel: Right. So there’s the correct procedure for the two different types of hearings. And then there’s what the judge actually
Susan Reff: Does, right?
Tracy Hightower-Henne: Wait, wait, wait.
Susan Reff: Things happen. Hold on.
Tracy Hightower-Henne: What did you just say?
Erin Wetzel: Breaking, breaking?
Tracy Hightower-Henne: Judges have their own rules.
Susan Reff: Yes, they
Tracy Hightower-Henne: Make it up and they’re unwritten. And you have no idea what they are right? Until you show up. Yes. And then sometimes they’re different than they were the day before. Exactly. Mm-hmm. So you have to that is a music piece that we should use in the future.
Erin Wetzel: You have to be on your toes, you told.
Susan Reff: Yes. For protection or I mean, I can say protection order cases, really. It’s like, what’s going to happen? Nobody knows.
Tracy Hightower-Henne: Yeah. And then sometimes when we have to actually advise our clients who are scared to death, to go into court and we can’t even tell them, are we going first? Are they going first? That depends on the judge and their mood.
Erin Wetzel: It’s why Tasha doesn’t do protection orders in our office. Yes, because she can’t plan ahead.
Tracy Hightower-Henne: Yes, you cannot plan ahead. You definitely are thinking on your toes.
Susan Reff: The correct way is that the person who the protection order is being taken out against is there. To show cause why it shouldn’t remain in effect, that’s what the law says
Erin Wetzel: When the protection order is already granted right, but when it’s not granted and there’s a show cause that it’s supposed to be the petitioner showing cause why they need it. So then in that case, the petitioner should be the first one going.
Tracy Hightower-Henne: Erin, what did you just say? So the petitioners, the person who files a request for a protection order, but what happens if we have two petitioners and they are each filing a competing protection order against each other? Who goes first, then
Erin Wetzel: Then you say, I don’t know. We’ll see how the judge wants to do it.
Tracy Hightower-Henne: If I were the judge, I would say, whose birthday is next? Oh, yours, OK? You go first.
Susan Reff: In my experience, because that happens a lot where people will file competing protection orders like white files against husband, husband files against wife. The judge usually says which one was filed first and then has that person go first? That’s been my experience.
Erin Wetzel: I mean, technically, you should probably do it separately, right? Have the first protection or go with the person requesting it, testifying about it and the other person responding and then doing a separate hearing for the second protection order. But obviously, that’s not necessarily the quickest way. So the judge is a lot of times they just say, let’s combine it all and you just talk about everything on both and then you just talk about everything on both. And then I’ll just decide and both at the same time.
Tracy Hightower-Henne: Are you saying that you think the judges want us to get out of their courtroom quickly?
Erin Wetzel: Yes. Oh.
Susan Reff: Judges are really prone to minimize time in the courtroom, says Susan.
Tracy Hightower-Henne: And like the nicest way possible. They want us to get the f out.
Susan Reff: Yeah. They’re like this thing that took an hour should have taken five minutes.
Tracy Hightower-Henne: And I agree with five seconds. Yeah.
Erin Wetzel: This meeting could have been an email that that
Tracy Hightower-Henne: Means this hearing could have been an email, a phone
Susan Reff: Call.
Erin Wetzel: Yeah, I mean, sometimes the best way to handle it as an attorney is to say, Judge, what would you like me to do? I’m happy to accommodate.
Susan Reff: Yes, at the hearing. Everyone’s going to testify, right? Just like a regular hearing, and they’re going to tell the judge either why they want the protection order or why they do not want the protection order, or they’re going to say why those things that the person said about them didn’t actually happen or happened
Erin Wetzel: A different way. Yes. Sometimes I tell my clients that if there’s an attorney there, sometimes the judge lets the attorney run the show, ask the questions, call the witnesses. I’ve had cases where an attorney has been there on both sides, and the judge doesn’t let either attorney basically speak and asks all the questions. Yes. And so I always advise my clients to like it could happen any one of these ways, and we really just have to wait and see what the judge wants to do.
Tracy Hightower-Henne: And sometimes the judges will start the hearing literally by saying, Does anyone have anything to add to me in court? Anything additional? You want to tell me in court that you didn’t put in your petition? And if the answer is no, then the judge says, OK, I’m ready to decide based on what you put in the paper. And so what we already talked about in the first part is that you better make sure you put everything in that petition that you want the judge to consider.
Susan Reff: So I’ve had a situation to piggyback off that where the allegations were very serious. It happened before Nebraska had the sexual assault protection orders, but the person alleged sexual assault, and it was one of those judges who basically runs all the questioning and the judge and I was representing the person who the protection was being taken out against.
Tracy Hightower-Henne: And the also known as the victim.
Susan Reff: No, no. The respondent, I’m wrong and they’re not victims, right? She was a petitioner.
Tracy Hightower-Henne: Yes, she the petitioner.
Susan Reff: Yeah, she petitioned for the protection order and she did not have an attorney. So the judge said, Do you have anything else that you want to add to this? And she said, no. And he then let me question my client, and he said, I only want you to respond to everything that she has said in the in there. And so I had my client testify. And then he let her, you know, he said, Do you want to question him? So that’s another thing too is in protection orders a lot of times. I mean, I would say many, many, many times the other side doesn’t have an attorney, right? But they get to act as an attorney, so they get to ask questions of our client just as if they were an attorney. So this gal got to question him. But she she was given the opportunity, but she ultimately didn’t ask him any questions. So then the judge ruled, Yeah, from there more.
Erin Wetzel: I mean, people who don’t have an attorney, they don’t really know what they’re doing. So I’ve seen it go one of two ways either one, they start asking all these crazy questions that really have nothing to do with the hearing or they just say, no, no questions and they don’t ask anything, right?
Tracy Hightower-Henne: So protection orders are pretty heavily filed. Old, we have some statistics from Douglas County in Nebraska that approximately two hundred are filed per month. So you think about the number of hearings that judges are having to determine whether the facts actually fall into the statutes of what’s required to be proven for a protection order? So what types of things in court are we looking to prove if we’re asking for a protection order to be granted?
Erin Wetzel: Well, depending on the type of protection order, there’s certain things that you have to prove to get that protection order. We are trying to find the evidence, the situations of the clients that we can bring out to prove to the judge that they’ve met the criteria to get that protection order. So for the domestic assault, you know, it’s it’s that physical mental emotional abuse that threatens you terrifies you. Bodily injury has occurred or there’s a reasonable likelihood that it will occur.
Tracy Hightower-Henne: And that’s based on a pattern of incidents, right? Right. So I think the thing that’s really stressful when we have potential clients call and say, I would like to get a protection order against so-and-so and they talk about one incident, we have oftentimes have to tell our client or potential client. You don’t yet meet the definition. You have to wait for another incident to happen.
Erin Wetzel: Right. And that’s the same in the harassment protection order. There has to be more than one incident in the sexual assault protection order, though one incident is enough. If they sexually assault you one time, that’s enough to get that specific type of protection order, but the other to make sense. Yes. But then the other two, you have to have that pattern of behavior more than one occasion where something has happened.
Tracy Hightower-Henne: So let’s talk about the pattern of behavior that is text messaging and that type of communication that’s over and over and over what happens in court. Then as far as the evidence goes, if we have a gazillion text messages?
Erin Wetzel: Well, sometimes, the judge says two separate text messages don’t necessarily mean more than one occasion, right? So if there’s one continuous conversation one day and there’s 30 messages that go back and forth, the judge might count that as one occasion. But then if you have a separate conversation on a separate date or even our separated from the first one, then that can be considered as more than one occasion. But if it’s just, you know, let’s say, three text messages all within a 20 minute time period, the judge might say, I’m not counting those as more than one occasion.
Susan Reff: Mm-hmm. The text messaging one thing I always tell people if the person is receiving the text message so they would be the person who would ask for the protection order. You can’t engage, right? You can’t be like, Oh, Tommy, you know, blah blah blah, blah blah. It has to be either no response or the response of stop contacting me, leave me alone, something along those lines. So a lot of times when we get a client in who has these harassment issues going on, especially with email, phone calls or text messages, I always tell them, let’s not file until you have sent something in writing email or text that says, Stop contacting me. And then if they continue, we’ve got really hard core, good evidence that says this person knew that our client did not want any more contact.
Tracy Hightower-Henne: Yeah, sometimes we’re going to have a conversation with the client or potential client about how to best set up a protection order hearing. And it’s just that type of example of let’s have the evidence that we go into court and you have said, stop contacting me and then you don’t ever respond after that. And now they’re really not going by your wishes of not contacting you.
Erin Wetzel: Actually had that case. There was a woman who was harassing a couple. The couple applied for and received a harassment protection order. I represented the couple and the person that they requested against. Asked for a hearing when we went to court and presented all the evidence, the judge said that she thought that the harassment order should stay in effect with regards to the wife, but not the husband, because she thought that the contact to the husband hadn’t been threatening and hadn’t been enough occasions. But then she lectured the woman who was there, and she said, You heard him say in court today that he doesn’t want contact from you. So if you contact him again, I know his attorney is going to request a transcript from this court of me telling you not to contact him, and he will then get a protection order against you.
Tracy Hightower-Henne: This was the voice mail case, right? I call it the voice mail case. So after this woman gets served with the protection order paperwork, she then calls the wife and the husband OK. She calls the it was granted against both of her.
Erin Wetzel: It was. It was printed against both.
Tracy Hightower-Henne: So she calls the husband starts leaving voicemails and saying, I know you really don’t want this protection order. And so then the voicemails get played in.
Erin Wetzel: Yes, she acknowledged in the email or in the voicemail and the first one, she was calling his work, so he had similar to what we have were the voicemails go to his email. So he was able to forward me the the emails with the voicemail. And in the first one, she says, the first thing she says is, she said, I just got served with this protection order.
Tracy Hightower-Henne: Oh my God.
Erin Wetzel: And then after she went and filed the request for a hearing, she then called him, it was three more times. One of them was like, Oh, I got cut off. But she calls, and she says, I just filed the request for hearing. It’d be really great if you could get this dismissed before it goes to a hearing. And she’s saying all this. And then when we went to the the hearing on it, she didn’t have an attorney. I explained to the judge that I had these voicemails that I would be playing. And the judge said that she wanted to give her the opportunity to review them. So the judge left the room so that I could play the voicemails for her. So I’m sitting there playing the voicemails on my on my laptop with my clients, the husband and wife sitting there and this woman sitting there. And then joy was actually there with me to listening. Joy said she was so uncomfortable. So we’re just listening to these voicemails just sitting there, and this woman is like laughing in response to her saying all this crazy stuff. And then when we actually have the hearing, I had to play them all again for the judge to listen.
Tracy Hightower-Henne: Did she laugh in front of the judge?
Erin Wetzel: She didn’t laugh as much, but she essentially when the judge asked her if she had anything to say, she
Tracy Hightower-Henne: Said, Yeah, I left those voicemails. Oh my.
Erin Wetzel: So she didn’t contest that it was her. And she was saying, just like, really awkward.
Tracy Hightower-Henne: Not the smartest cookie.
Susan Reff: No. So here’s another story that’s similar to that, where this was the last hearing I was at. We represented the person who the protection order was taken out against. So the respondent and the his girlfriend had ex-girlfriend had filed a protection order against him and it didn’t get granted. But the judge said it for hearing right away. And she just keeps these to their mode of communication with Facebook Messenger, so she keeps contacting him. Hey, can we go to lunch next week and like communicating about mutual friends and things like that? And he doesn’t respond, and she keeps putting like little heart emojis and there was like the teddy bear with the heart emoji. And this was after she had applied for the protection order, saying that she’s scared of him and wants no contact with him.
Tracy Hightower-Henne: There’s a teddy bear emoji.
Erin Wetzel: That’s what I was wondering.
Susan Reff: Well, maybe it’s like that.
Tracy Hightower-Henne: Go to my head the
Susan Reff: Maybe it’s the sticker or whatever with the bear holding a bear head. There’s like what?
Tracy Hightower-Henne: I’m looking bear
Susan Reff: Head. It’s not an emoji. It’s the little, you know, you can get apps to send little.
Tracy Hightower-Henne: Well, you said, Emoji, this bear. I come up with you.
Susan Reff: That’s not what it was. Ok, so it’s not an emoji isn’t emoji like many necks, like emojis. Any picture?
Tracy Hightower-Henne: No emojis are only what’s in the keyboard thing. Yeah, otherwise it’s a joke.
Erin Wetzel: Some people call it a GIF, and it’s
Tracy Hightower-Henne: Just it’s just like the peanut butter. Yes. Yeah. Now that we’ve cleared all that up, emojis are only what’s in it.
Erin Wetzel: Meme not. Me, me.
Susan Reff: Me, me, me. Me.
Tracy Hightower-Henne: So what happens in court when we have the text messages and I like to tell the story of the one hearing? I had one time where we were protecting against the protection order, so our client had a protection order filed against her and the other party comes in without an attorney, and he wants all these text messages for the judge to read the text messages. No one submitted text messages with the petition, so the judge hadn’t seen the text messages at all. And the judge ended up saying, Well, sir, I can’t put these text messages into evidence because they’re on your phone. Did you bring a copy of them? No. Well, the only way that I can take them into consideration is if you mark your phone as an exhibit, you have to give me the passcode so I can get in it so I can read the text messages and you’re going to have to leave your phone here as evidence forever, forever and the guy sat there like, I really want these text messages in. And he ultimately said, Yep. And so they put an exhibit sticker on his phone and the judge said, OK, we’ll come up here on the bench and show me how to unlock your phone and how to open these text messages, and I’m going to read them all. And he goes, OK,
Erin Wetzel: I’ve never seen that happen,
Tracy Hightower-Henne: And that protection order got denied. It was great.
Erin Wetzel: But did we ever find out if he got his phone back?
Tracy Hightower-Henne: I have no idea. I didn’t really care.
Susan Reff: Called a motion to return evidence
Tracy Hightower-Henne: Or a motion to depress. No, no, no. Another podcast. We’ll talk about all the funny things that people call their.
Erin Wetzel: Yeah, I had a case where it was this couple that had broken up and I represented the former boy. And he was the one that the protection order was requested against, and the the former partner who had requested it, she had made up some stuff and so she showed up without an attorney. We started the hearing and she tried to enter a text message that she said was exchanged between her sister and my client. Well, I objected as hearsay, and the judge explained to her that she couldn’t try to get this evidence in unless her sister was there to testify about it. Lay the foundation, you know, prove that the text message was exchanged with my client, so she wasn’t going to let the text message in. And after she said that this pro say person, she said, Well, I want to continuance. It’s not fair that he has an attorney. If I had known he was going to show up with an attorney, I would have gotten an attorney and there had been a previous case when they were together that we had been helping him on. So she knew that we were his attorney and he was likely going to show up with an attorney. And the judge looks at her and she goes, request denied.
Tracy Hightower-Henne: I think in all seriousness, though, you know, protection orders are important for victims of domestic violence. And I think that when we have clients who are facing that and we have to bring that action as a petitioner, we take it very seriously and we’re going to prepare for that hearing in the best way we can. And so I think, you know, talking about domestic violence in protection orders is really important. When the hearing gets granted, it’s because the judges want to hear the evidence in order to make a very important decision of whether a protection order should be in place.
Erin Wetzel: So I mean, we don’t want to make light of serious situations, but as attorneys, when we’re dealing with these very heavy emotional topics all day in order for us to survive and we just have to find the lighthearted parts of it and kind of make light of at least that. But we take it very, very seriously for people who are requesting the protection order or for those that are being requested against them, because those those situations can have a huge effect in those people’s lives, they can have other consequences.
Tracy Hightower-Henne: Yeah. So let’s talk about those things when a protection order is granted against someone. What types of effects can that protection order have on their life?
Erin Wetzel: Well, you know, if somebody is going to do like a background search that would show up, it’s not just criminal stuff that can show up in background searches, background checks, depending on the type that is done. If law enforcement looks it up, they see that a person is either protected by a protection order or that there’s one against them. So that can affect jobs, you know, school things like that. Obviously, for somebody who owns firearms in the domestic violence protection orders, the judge can specifically put in there that they’re not allowed to own firearms. So if that person has a job that requires firearms or they have a concealed carry, or even if they’re just a regular owner of firearms, that can affect that,
Tracy Hightower-Henne: There’s a whole host of effects to that it could have on a military person as well. Yes. So also, what happens when a protection order that’s in place for a year is set to expire and our potential client wants to have that remain in place for longer than a year?
Erin Wetzel: You can request a renewal of that protection order instead of waiting for that protection, order to expire and then having to request a new one like, you know, I think what people are afraid of is this protection or expires, this person is immediately going to start this behavior again, and then I have to go through this process all over again. But Susan, what does that process look like for requesting the renewal?
Susan Reff: So it is basically a request of a renewal of a protection order is filed and then the judge can either grant it or the judge can set it for hearing and say, I want you to come in and give me testimony about it. But in, in my experience, the request for renewal, they’ve always been granted without a hearing. So the judge’s just and I don’t think it’s very common. I mean, they don’t happen very often, but the ones that I’ve seen, the judges just grant them without a hearing. The person has to allege that they are still afraid of the other person, that they’re still concerned about whatever it was that brought the protection order in the first place, even if something new has not happened. But if there are new facts that have happened, I always say, let’s put those new things into the renewal request.
Tracy Hightower-Henne: And then on the flip side, too, if someone has requested a protection order that has been put in place, whether after a hearing or otherwise, they can ask for that protection order to get dismissed before the expiration of it right.
Erin Wetzel: The. Person who requested it can then file a request with the court to dismiss the protection order to vacate it so that from the date that the order is entered vacating it, it no longer, no longer exists. Now it still is considered to have existed and been in place until that point in time. So if there’s a violation that’s alleged during that point in time, that’s still something that you need to be aware of. But when somebody files that request, the judge doesn’t have to grant it. So the person who has the protection or can say, I’m no longer afraid this person, I don’t think I need this to protect myself anymore. But the judge can deny it. I have that happen in a case where the person who had the protection order didn’t think she needed it, she requested that it be dismissed. She told my client that she had requested that it be dismissed, but he didn’t verify that the judge had actually dismissed it. The judge denied that request. Some stuff blew up between these two that had been in relationship. They shared a kid together and she reports him to the police. Well, he then gets charged with violation of the protection order, even though he was under the impression that it had been dismissed because he never received the order from the court, saying that it was dismissed.
Susan Reff: I think in that situation that comes up a lot, and I think in that situation, the person who’s got the protection order that wants it dismissed thinks it’s just a request to the judge like that by them reaching out in whatever way they reached out to the judge and saying, I want it dismissed that poof, it’s done right instead of the judge having to maybe set it for a hearing, or the judge may be saying, I need more information. I would like to have the parties come in and I can hear from them about whether or not this should be dismissed because at one time, the judge said, there’s enough evidence here that I think you do need protection from this person. So what’s changed? You know, so. Right.
Tracy Hightower-Henne: So I think as we talk about this serious part of the protection order and that is the hearing and that is the part of going to court. I think some of the things that we can give advice on for people who are doing it alone without an attorney is the judge may not even know what process unofficial process they’re going to do that morning when they wake up. So be calm, be respectful in court and know that you’ll get your moment to speak. And if you do that in a way that the judge hears you, you’re likely to be heard. But then also, if you have an attorney who’s representing you, give them some grace because oftentimes we have to fly by the seat of our pants too and kind of wing it a little bit based on what the judge is requesting that day. Exactly. I like that phrase fly by the seat of your pants. Like, what do you picture when that happens? If you’re wearing a skirt, fly by the seat of your skirt,
Susan Reff: Your drawers
Tracy Hightower-Henne: Draw drawls bra. So I think we’ll get into the protection order part three and talk about how protection orders affect custody and divorce and all of that
Erin Wetzel: Until next time. See you later.
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