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Protection Orders (Part 1)
What happens when you’re asking for a protection order? What if you have a protection order against you? Susan Reff and Erin Wetzel talk about all the basics you need to know for protection orders in the first of a 3-part series on the topic.
Susan Reff: So on today’s podcast, we are going to start a three part series about protection orders. We will talk about part one, which is the basics of a protection order when when you ask for a protection order and when someone is asking for a protection order against you. And joining us today is Erin Wetzel, who has a lot of experience in this area on both sides of protection orders.
Erin Wetzel: Hello.
Susan Reff: Thanks, Erin, for being here.
Erin Wetzel: Happy to be here.
Susan Reff: So anything new with you lately? Anything fun happening in your life?
Erin Wetzel: Well, I’m going to Bozeman, Montana, this weekend for a wedding.
Susan Reff: Have you been to Bozeman, Montana, before?
Erin Wetzel: I have since I grew up in North Dakota. We would go there a lot for skiing. So my cousin lives there, is getting married there. So we’re making the long, long drive. We’re going to split it into two days because I don’t think my kids could handle 15 hours and one day
Susan Reff: It’s a 15 hour drive to Bozeman, Montana.
Erin Wetzel: Wow. So we’re going to drive to Rapid City, and that’s about a nine hour drive. Oh my gosh, you know what? Six seven after that.
Susan Reff: So, so I grew up in North Dakota also, and I have never been to Montana, really never.
Erin Wetzel: Well, you’re on the opposite side. You were in Fargo, so you probably went to Minnesota a lot. Yes, I was in central North Dakota, so probably a little bit closer with Drive Bozeman.
Susan Reff: So it’s not ski season, so you won’t be able to ski. Are you going to do anything else besides go to the wedding like any outdoor stuff?
Erin Wetzel: You know, maybe take the girls to a splash pad or a pool or something, but I don’t know if we can plan too much when you have two year olds, twin two year olds.
Susan Reff: Well, and then you also have that it’s family like a family wedding, too.
Erin Wetzel: So, yeah, so probably just a lot of hanging out with relatives. My relatives kind of live all over the country, don’t see them in person a whole lot. You know, the day after a wedding, there’s going to be a brunch that we’re all going to go to and then just kind of seeing what everybody wants to do.
Susan Reff: Well, I hope it’s a fun trip and not a trip. You need a break from when you get back
Erin Wetzel: Like I might. We’ll see. We’ll see how the sleep schedules adjust. Yeah, especially with the time change.
Susan Reff: Oh yeah. What is the time change?
Erin Wetzel: It’s just an hour back, but when you think of it, that’s a lot. My girls go to bed at seven 30, so that’s six 30 at that time. Everybody will want to be having dinner and they’ll be ready to go to bed. Yeah.
Susan Reff: So then what do you do? Do you adjust their schedule or do you just like, go, Oh, we’re going early?
Erin Wetzel: I I think we’re going to try to keep the schedule the same and then my husband might get put on toddler duty watching them, and then I’ll go back out and hang out with my family.
Susan Reff: Well, that sounds more fun for you than his,
Erin Wetzel: Less so for him.
Susan Reff: Yeah. You know, I haven’t been to any weddings lately. I mean, I feel like with COVID, we haven’t really had a lot of big celebrations yet. It’s just kind of just starting up.
Erin Wetzel: So. Right? I went to a wedding here in Omaha in April, but other than that, that’s it’s been over a year. Yeah, probably two years since the wedding last wedding I had been to before that.
Susan Reff: Yeah, my stepdaughter is getting married in the fall. And so that will be the first big wedding. I think I haven’t gotten invited to anything. I’m also getting older where I don’t get invited to as many weddings. And then I think in a few years I’ll start getting invited to all of my friend’s kids weddings, right? And then that’ll be a thing.
Erin Wetzel: Yeah, I was actually telling somebody that the other day that less weddings. And now for me, it’s more baby showers. Yes.
Susan Reff: Yeah. And then it’ll be graduation parties and then weddings, right? And that’s that’s kind of how that works. So today we’re going to talk about protection orders and we’re going to like I said, we’re going to break this up into three parts. So today is going to focus on like how to protection order cases get started.
Erin Wetzel: You first have to, well, the petitioner, the person who wants a protection order, has to request the protection order first, obviously. So there’s a specific process that you have to go through for that, that we’ll explain. There’s three different types of protection orders that are here in Nebraska, and then there’s some misconceptions that people have that we’ll talk about, too. You know, when you hear just on TV and TV or movies, you have an idea of what a protection order is, and it varies greatly state to state. And so I think sometimes people have misconceptions about them.
Susan Reff: Yeah. So if somebody wants a protection order in Nebraska, they have to go. They have to file a petition, which is a piece of paper that says, Here’s why I want a protection order. And in Nebraska, you have to allege that there’s been a recent act of either harassment, domestic violence or sexual assault, correct? And then the judge would review that. And this is interesting, right? The judge does this without there being anyone present right. The judges reviews the paperwork.
Erin Wetzel: Yeah, even the person who requests a protection order isn’t there. They don’t speak to the judge during that process. It’s kind of an administrative process at the start where a clerk gives the petition to the judge and the judge. Reeves reads the petition in the privacy of his or her office
Susan Reff: And something you know that we do here, that I don’t think a lot of other law firms do it, but we we will actually walk a client through the process, including meeting them at the courthouse, helping them fill out paperwork or having them review the paperwork. And then, or, excuse me, write the paperwork and then we review it and make sure we think it would meet what the judge would want it to say to issue a protection order.
Erin Wetzel: Right. Some people are comfortable going through that process by themselves. Other people want that support from the beginning, and we’re happy to offer that support and be that person. They’re with them through those different steps
Susan Reff: Sometimes, too, I think it’s helpful because. People often don’t give enough detail. You know, they say like there was a fight and we have to say, you have to describe the fight, you have to say every little detail of what happened, right?
Erin Wetzel: If somebody doesn’t give enough information, they might not get that protection from the protection order that they deserve, even though those facts existed in real life, just because of the fact that they did not put that information down on the petition. And people need to keep in mind that the judge can only make the decision based off of the information that they are given. They have no way to know what actually is going on because they’re only reading sentences on a piece of paper.
Susan Reff: Right. And. You know, I think it’s it’s pretty commonplace for someone who’s been a victim to potentially minimize it or they’ve maybe told the story so many times that they’ve they gloss over some of the more. Important details. So that’s where if we’re reviewing it and helping them fill out the paperwork, we can say, make sure you add detail here or this looks, you know, you have enough detail in this part include if you have photos, include photos, if you have text messages or emails or anything written down, you can include that in your petition as well.
Erin Wetzel: Right. I’ve seen people a lot reference the fact that they have the photos, they have the text messages, they have the video and they don’t include it. If you if you have it, you need to include it with the petition because if you don’t, you risk the judge not allowing you to enter that information at a later date if it’s not included with the petition.
Susan Reff: And after the petition is submitted to the judge and they review it, the judge can do a couple of different things. The judge can grant an ex parte, which is fancy for emergency. It’s like legal lingo or Latin for emergency order. That’s basically a temporary order that says there is a protection order in place between these two people until either there’s a hearing or the other person doesn’t request a hearing correct.
Erin Wetzel: It basically means that the judge is granting it without speaking to both parties and without having a formal hearing on it.
Susan Reff: And then that ex parte order goes to the sheriff, and the sheriff takes it out to the other person who’s called the respondent. Correct. They serve the respondent with this order, and this is sometimes the first time that person’s ever even heard that there’s this protection order out there. Right? And they get served with this order from the sheriff that says this person has a protection order against you and you have 10 days to request a hearing to determine whether it will stay in place or not.
Erin Wetzel: Right. And so that’s 10 days from the date that they’re served. Not necessarily that the date signs or the date that that the judge signs the protection order.
Susan Reff: You know, sometimes that’s a problem in a case, right? Like, we’ll have clients that say they want a protection order against someone, but they don’t know where they live. They don’t know where they work, they don’t know how to serve this person. So maybe they have a last known address if that if the respondent can’t get served, that protection order never becomes valid, right?
Erin Wetzel: Because a person can’t be faulted for violating a protection order that they don’t know exists.
Susan Reff: So sometimes, I mean, most of the time a protection order is between people who know each other really well, but sometimes it’s not. Sometimes it’s a former coworker or old neighbor or, you know, a distant family member that they don’t know how to find. Exactly. The other thing that sometimes comes up is the person isn’t in Nebraska, right?
Erin Wetzel: And that adds another level of complication because the sheriff here in Nebraska can’t serve somebody who’s out of state. They can only serve whoever is located physically in their county. Right. So then you have to loop in a sheriffs agency or sometimes a service agency in the other state to accomplish the service.
Susan Reff: So again, you know, if someone is applying for a protection order, these are things that we can walk, walk a client through and help them and say, you know, here’s some pitfalls to to think about and look out for. And if you really want the protection order, you know you’ve got to put everything in that petition up front. You’ve got to think through all of these different things, like where is the person located? I I’ve heard a million times of people who walk down to the courthouse to fill out the their paperwork for protection order, and they don’t have all the information with them. So then it’s either they turn in a petition that isn’t very complete or they have to stop and make another trip down to the courthouse.
Erin Wetzel: Right. And if you don’t have the complete information, you risk the judge not granting the protection order, which can lead to the other two outcomes. One of them is that the protection order is just dismissed and you’re out of luck. You don’t have any other chances. But the kind of middle of the road option is that the judge does not grant the protection order, but sets it for a hearing that gives you an opportunity to provide additional information to the judge about why you actually need that protection order.
Susan Reff: Yeah. So I mean, it’s possible the judge could review the petition and either determine there’s not enough information here to grant a protection order or all of the information that’s here doesn’t rise to the level of need of. Protection order, and then the judge would just dismiss it right in those situations to that other person never knows that there was an application for a protection order against them.
Erin Wetzel: Right. Unless you’re a person who knows how to go to the courthouse and look up that information and discover the fact that somebody requested a protection order against you and it was dismissed, you potentially could go your whole life not knowing that somebody had requested one against you.
Susan Reff: So I had a consultation. With a client, and he was calling for a divorce, and he said, you know, we’ve been separated for a while and things just aren’t working out very well. They didn’t have any kids or anything, and it wasn’t a very long term marriage. And I said, Have you discussed divorce with, you know, your your wife? And he said, Yes, we’ve talked about it a few times, and I think we’re both agreed. You know, in agreement that this is the next thing that should happen. And so I looked online while we were talking because I thought, Well, maybe she’s already filed. It’s possible she has the case on file, but I said, you know, his name popped up for a protection order and I opened the case and I realized it was one that had gotten dismissed before. You know, Judge didn’t issue an order granting it didn’t set it for a show cause hearing nothing. I said, Did you know that about a month ago, she applied for a protection order against you and he had no idea that she had done that and he hadn’t mentioned, you know, any of the facts that she had put down in the application for the protection order. And so he was really taken aback and he thought, you know, he was not in agreement with any of the things that she had said in the protection order. And he said, Well, I’m really glad that that didn’t get granted. I would have never known if it until I called you. You know that that
Erin Wetzel: Was out there. Yeah, I had that happen recently on a client who came in and hired me on a criminal case. It’s a case that’s has something to do with an incident that went down at work. My client no longer works at that place, but a former coworker requested a protection order against her. The judge granted the protection order, but then the sheriff’s office was not able to find my client. She didn’t. She wasn’t trying to avoid it. She didn’t even know it had been requested. And eventually it got dismissed because they weren’t able to locate her and serve her. So she lucked out in that regard that she didn’t have to spend the time and money to have me fight against the protection order. But it exists out there as far as people being able to see that somebody had requested the protection order
Susan Reff: Against her, right? I had a case once someone retained us and he it came in as a, you know, protection order client and he said, Well, there’s this person who’s trying to serve me with this protection order. And, you know, so I pull up the case. They don’t have the correct address. They don’t even have a lot of the correct identifying information. But it was him. I mean, the facts of how they knew each other and all of that worked out. And he said, I just want you to monitor the case. For service, and I’ll tell you if I ever get served, but if if the judge makes any moves on the case or anything happens court wise, I want you to tell me. So basically we were on retainer babysitting this, this protection order that was sitting out with the sheriff for service. And in that case, this was early on in my career. I learned that they can. This will sit active for six months and they will continue to try to serve him during that time. But after six months, the the the clerk’s office dismisses the case for lack of service. And so probably once every week or so, I would pull the case up and see the status of it. And I was wondering what’s going to happen after six months? Am I going to have to ask them to dismiss it or will? And nope. It just got dismissed on its own. So. Yeah, if somebody applies for a protection order and it they try to serve you, it can sit out there for six months. Right for service.
Erin Wetzel: Yeah. And I I think protection orders are a little different in the monitoring of them because when you file a protection order, you’re not paying anything to file that. So the clerk’s office is handling all that monitoring versus a family law case that we file. You know, it’s it’s on us to get the sheriff’s office to serve the other party, right to monitor that, to pay those fees and those fines for service and filing. Whereas in a protection order, they know that this person is likely in a bad situation and they don’t want that person to be burdened with the filing fees or monitoring the service attempts or anything like that. But that is one of the reasons why it’s helpful to have an attorney on your side when you’re going through this process so that you’re not having to consistently call the clerk’s office to find out if it’s been served to figure out what other attempts are going to be made to serve that person, an attorney can do that for you so that that’s something that’s taken off your plate, right? Because because it’s a we know it’s already a very stressful situation if you’re in a situation where you feel you need a protection order.
Susan Reff: And again, there are three different types of protection orders that you can file for. There’s a harassment protection order, which basically means someone’s continuing to contact you over and over and over again. There’s really no purpose for it, and it doesn’t even have to be threatening. Contact it just, I think, the law says, a continued course of conduct that has no purpose. So if they’re calling you all the time and like telling you jokes or saying stupid stuff and it’s over and over and over and over and over again,
Erin Wetzel: I think the language says that it has to be threatening, intimidating or terrifying and has no legitimate purpose. So kind of the two prong approach. But you don’t have to have any type of previous relationship with this person. Yeah, that’s it. Whereas there has to be some type of relationship with the other types of protection orders. Right? Also, the other thing is it has to be a contact that has happened on separate occasions more than once. Right. So if it’s a a series like a string of text messages, but all happens on the same day within a period of time, you can’t count the separate text messages as the two different occasions. It has to happen on two different occasions. Yeah.
Susan Reff: And then there’s the domestic violence protection order, which would be when persons with an intimate relationship they can be married, dating former boyfriend, girlfriend, you know, same sex couples. It doesn’t matter as long as there’s been some sort of allegation of an intimate relationship.
Erin Wetzel: I’ve even seen people get a domestic abuse protection order against a parent or a child, you know, a parent against an adult child when it’s an abuse situation, somebody that you share a child with. Even if there was no relationship that if the child resulted just out of a fling, but there was never actually a dating relationship right there, that’s enough for the domestic abuse protection order. Living together?
Susan Reff: Yep. And then the last one is the sexual assault protection law, which is pretty
Erin Wetzel: New, right? That’s only a few years old. You don’t have to have a relationship with the person in terms of a romantic relationship, but a relationship, obviously in terms of there was a sexual assault that took place. So you had some type of contact that meets the terms of how Nebraska. describes a sexual assault.
Susan Reff: So I had a sexual assault protection order case where we were defending against it, and the petitioner alleged that there was a sexual assault committed against her. There was never any criminal charges filed, despite law enforcement being contacted and the. The interesting thing, I think at the hearing. You know, if you’re trying to read the judge’s mind was that the judge actually found at the protection order hearing that no sexual assault occurred. What occurred between the people didn’t meet the definition of sexual assault, so the judge couldn’t issue the protection order. And I thought that was really helpful for our client because sometimes, you know, a police report is filed in a criminal case or for a criminal case, and charges aren’t brought. But then as more information comes out, a prosecutor then may decide to charge later down the road. Well, we’ve already got one judge saying, I don’t think sexual assault occurred. So because my client was concerned like he was, he knew that charges could come back later. You know, it was something that he was really concerned about. So I thought that was really interesting that the judge said I’m I’m making a finding a specific finding in this case that there was no sexual assault.
Erin Wetzel: I feel like that’s a case where I initially met with the client and then you handled the hearing
Susan Reff: Part of it. I do think that that I now that I think about it like you were out of town or you
Erin Wetzel: Were I had a scheduling conflict and they the client wanted to get the hearing over with and not continue it. So Susan took over the case. Yes, that’s the nice thing about having multiple attorneys in her office who practice in the same area so that you have coverage if there’s a scheduling conflict because with attorneys who are in trial or in hearings going to the courthouse a lot, it happens quite often where we have scheduling conflicts, where we have two hearings scheduled at the same time in two different counties. So I might have a hearing that scheduled and Derby County at the same time as one in Douglas County. And then it’s nice to have Susan in the office, who I know I can just hand the file off to, and she knows what’s going on and she can cover it for me.
Susan Reff: Well, and and interestingly, with protection orders, once the person who is filed against requests that hearing, the judge sets it pretty quick. Right. I mean, I feel like they’re usually within two or three weeks. I mean, is that usually your experience?
Erin Wetzel: Yes. I think the statute actually provides that with a protection order where it’s an ex parte protection order, meaning the judge issues it based on the reading of the petition, an affidavit that they have to set the hearing within a certain number of days after it’s requested by the respondent. And I think we mentioned this before, but the respondent has only 10 days to request that hearing. If you don’t request it within 10 days, the protection order stays in effect. I’ve also had cases where somebody has requested the hearing 30 days after they were served, and the judge has denied that and said You missed your time frame of 10 days. You don’t get a hearing now.
Susan Reff: You know, that’s really interesting, and that’s probably the biggest takeaway for people who have a protection order filed against them is request that hearing immediately. Don’t wait. Contact an attorney if you’re confused as to how to request the hearing. But one of the pieces of paper that you get served with is just a blank form that’s basically says, I’m requesting a hearing. You fill in your name and information and then you have to get that to the judge’s bailiff. And then they set the hearing.
Erin Wetzel: I think actually you mail it to the clerk, but when somebody is served with a protection order, they actually get a sheet of paper that very specifically tells them what their rights are and that they have to request that hearing within 10 days. So if you get served with a protection order and you want to contest it, that is the most important thing that you have to do. I would say do it that day that you get served
Susan Reff: And and like you said, if you do nothing and it’s an ex-parte meaning the judge has already temporarily granted it, it’s going to be in place for a year.
Erin Wetzel: Exactly.
Susan Reff: And in parts two and three, we will talk a little bit more about the details of what happens at a protection order hearing. What happens if a protection order is granted against you? What happens if you violate a protection order? How to, you know, continue a protection order after it’s been in place for a year? And then some of those misconceptions about what a protection order actually does or doesn’t do for people. This has been really interesting. I think protection orders. They’re like this weird area of the law, right? Like some people think it’s criminal. Some people think it’s family law because a lot of times it involves family members, but it’s really in between. It’s a civil proceeding. So that makes it lean more towards family law because family law is civil, but it has criminal implications, right?
Erin Wetzel: I think, like you said, it’s that in-between area where it’s interesting to talk to other attorneys that practice in those areas because there are some that you would think they that they would handle protection or cases and they don’t want to touch them. You have criminal attorneys who want nothing to do with them, you have family law attorneys who want nothing to do with them. So sometimes it’s hard to find an attorney that actually has the experience, and it’s important to have an attorney who has experience with them because of the specific statutory requirements that need to be met to either be granted the protection order or when you’re trying to fight against it. So that is one of the areas that I specialize in because it’s important that somebody has an attorney that understands the different types, the process of it, what needs to be proven or what you need to try to fight against to get it dismissed if you’re the respondent.
Susan Reff: And again, these can get pretty messy and there can be a lot of moving parts because a lot of times there’s other cases pending with a protection order. So I can’t stress enough how important it is to get an attorney involved at day one, whether you’re requesting a protection order or one has been filed against you. Right. So that’s our biggest takeaway, I think. Call an attorney.
Erin Wetzel: Don’t wait. Yes. And and we know that time is of the essence on both sides of a protection order. So when somebody calls our office and says that they either want to request one or they’ve been served with one, our staff know is our intake specialist knows that they need to schedule that consultation with one of us as soon as possible, and we really know that we need to give that client priority.
Susan Reff: Well, thanks, Erin, for jumping in on part one of our series about protection orders, and we’ll be back to talk about parts two and three later.
Erin Wetzel: Yes. See you soon. See you.
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