Maria A. on behalf of Leslie G. v. Oscar G.
919 N.W.2d 841
| Neb. | 2018Background
- On June 4, 2017, during parenting time, Oscar forcibly broke into 10‑year‑old Leslie’s bedroom and struck her several times on the leg; Emily filmed a 9‑second video and texted it to mother Maria.
- Maria (on behalf of Leslie) filed for an ex parte domestic abuse protection order under Neb. Rev. Stat. § 42‑924; the district court granted the ex parte order barring Oscar from contact with Leslie.
- Oscar requested and received a show‑cause hearing under § 42‑925(1); the hearing included Maria’s affidavit, the 9‑second video, CAC interview summaries, and testimony from Emily (Leslie did not testify; parties stipulated Leslie was afraid on the day of the incident but not afraid at the time of the hearing).
- The district court rescinded the ex parte protection order, citing (1) no evidence of bodily injury, (2) parental discipline statute § 28‑1413, and (3) lack of evidence of future risk or pattern of abuse. Maria appealed.
- The Nebraska Supreme Court reviewed de novo, framed the issue as whether the ex parte order should remain in effect (not solely whether it was initially proper), and affirmed the district court because the record did not compel a finding of future risk warranting continued injunctive relief.
Issues
| Issue | Plaintiff's Argument (Maria) | Defendant's Argument (Oscar) | Held |
|---|---|---|---|
| Whether abuse occurred under § 42‑903 | June 4 incident—threat and strikes—meets statutory abuse (placing child in fear/causing bodily injury) | Admitted hitting but minimized force/no lasting injury; argued conduct was isolated disciplinary act | Court treated occurrence of abuse as threshold but focused on whether the ex parte order should remain; assumed arguendo plaintiff met burden but examined future risk |
| Burden at show‑cause hearing | Petitioner must prove facts supporting order by preponderance | Once petitioner meets burden, respondent must show cause why order should not remain | Court held petitioner bears preponderance burden; once met, burden shifts; applied framework and concluded respondent showed cause in this record |
| Scope of inquiry at show‑cause hearing | Court should determine truth of allegations only | Court may consider likelihood of future harm and other factors beyond initial propriety | Held: court may consider forward‑looking factors (remoteness, severity, pattern, psychological impact, parent‑child relationship, household nuances) in deciding whether order should remain |
| Whether rescission was abuse of discretion/error on appeal | Rescission was erroneous because facts and video established credible threat and risk of future harm | Rescission proper because no pattern, no current fear, no injury, and continued injunction could cause greater harm to family bonds | Held: Affirmed rescission — on de novo review, considering credibility findings by trial judge, record supported conclusion that protection order need not remain in effect to prevent future harm |
Key Cases Cited
- Torres v. Morales, 287 Neb. 587 (discussing de novo review of protection orders and deference to trial court credibility determinations)
- Linda N. on behalf of Rebecca N. v. William N., 289 Neb. 607 (protection order cannot remain if conduct does not meet § 42‑903 definition of abuse)
- Mahmood v. Mahmud, 279 Neb. 390 (petitioner must prove by preponderance at show‑cause hearing following ex parte order)
- Abboud v. Lakeview, Inc., 237 Neb. 326 (preponderance standard for injunctions)
- Sarah K. v. Jonathan K., 23 Neb. App. 471 (remoteness of past abuse may be considered when deciding whether a protection order is warranted)
- City of Omaha v. Rubin, 177 Neb. 314 (equity discretion: withhold injunctive relief when it would inflict greater injury than grievance)
- Hulse v. Schelkopf, 220 Neb. 617 (appellate review confined to record)
- In re Interest of Lilly S. & Vincent S., 298 Neb. 306 (courts may take protective steps to prevent foreseeable harm to minors)