Maria A. on behalf of Leslie G. v. Oscar G.
301 Neb. 673
| Neb. | 2018Background
- Mother (Maria) filed an ex parte domestic abuse protection order on behalf of her 10‑year‑old daughter Leslie after a June 4, 2017 incident in which father (Oscar) kicked open a bedroom door and struck Leslie several times on the leg; a 9‑second video of the incident was admitted.
- The district court issued an ex parte protection order barring Oscar from contact with Leslie; Oscar requested a show‑cause hearing under Neb. Rev. Stat. § 42‑925.
- At the hearing, Maria and daughter Emily testified; Leslie did not testify but the parties stipulated what her testimony would have been. Emily testified she missed her father and felt safe with him at the time of the hearing.
- Documentary evidence included the video, a probable‑cause affidavit, and Child Advocacy Center interview summaries (which reflected statements that Oscar threatened to hit and that Leslie had a small mark on her leg).
- The district court rescinded the ex parte order, reasoning there was no bodily injury, parental discipline is sometimes legally permitted, no evidence of ongoing threat or pattern, and continuing the order could cause greater harm to parent–child relationship. Mother appealed.
Issues
| Issue | Plaintiff's Argument (Maria) | Defendant's Argument (Oscar) | Held |
|---|---|---|---|
| Whether the ex parte protection order should remain in effect after a show‑cause hearing | The June 4 incident met § 42‑903 abuse definitions (credible threat/causing bodily injury); once abuse is shown, the order should remain | Order need not remain if evidence shows no likelihood of future harm; district court may consider factors beyond the initial abuse finding | Court affirmed district court: rescission not erroneous because court reasonably considered future‑harm factors and found order unnecessary |
| Burden of proof at show‑cause hearing | Petitioner must prove facts by preponderance to support the order; if met, respondent must then show cause why it should not remain | Same framework but Oscar argued he met burden to show order unnecessary | Court: petitioner bears preponderance burden; once met, burden shifts to respondent; assuming petitioner met burden here, record supports that Oscar showed cause to rescind |
| Proper scope of inquiry at show‑cause hearing (limited to truth of petition vs. forward‑looking) | Focus on whether abuse, as pleaded, occurred; truth of application is threshold | Court may consider prospective factors (remoteness, severity, pattern, psychological impact, family dynamics) in deciding whether order should remain | Court holds § 42‑925 permits forward‑looking analysis; not limited to initial correctness of ex parte issuance |
| Use of criminal‑law parental discipline statute (§ 28‑1413) in civil protection context | Maria contended referencing § 28‑1413 was improper | District court referenced it to contextualize parental discipline; argued no extreme injury | Court did not decide whether district court erred in referencing § 28‑1413 because rescission upheld on other grounds |
Key Cases Cited
- Torres v. Morales, 287 Neb. 587 (discussing de novo review and deference when trial judge observed witnesses)
- Linda N. on behalf of Rebecca N. v. William N., 289 Neb. 607 (ex parte order must meet statutory definition of abuse)
- Mahmood v. Mahmud, 279 Neb. 390 (burden at show‑cause—preponderance for facts supporting order)
- ConAgra Foods v. Zimmerman, 288 Neb. 81 (injunctions are equitable, discretionary remedies considered based on all circumstances)
- Elstun v. Elstun, 257 Neb. 820 (analogizing protection orders to injunctions)