Monday, August 8, 2022

Author: Josiah J. Shanks

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Josiah J. Shanks

I.          Introduction

            A popular hashtag that trended on Twitter was #whyIstayed[1] which gave a voice to thousands of domestic abuse victims to explain, online, why they stayed in an abusive relationships. In many of these instances, the abuse was gradual and became normalized over time.[2]

            Abusers often inflict abuse on both human and animal victims. Some abuse victims stayed because they did not want to leave their pets with their abuser. As many as forty percent (40%) of domestic violence victims have reported being entirely unable to leave their abusers out of fear for what will happen to their pets after they leave.[3] Fortunately, domestic violence shelters have recently changed policies to allow pets to come with the victims to alleviate this concern.[4] In addition, animal abuse is consistent with, and often co-occurs with, the power and control mechanisms frequently present in intimate partner violence.[5] The reasons that an abuser may also inflict harm on animals include (1) a demonstration of power and control; (2) isolation of the victim; (3) elimination of competition for attention; (4) retaliation for any acts of independence, and; (5) prevention of the victim from leaving.[6] Researchers also suspect this violent link exists because a person who abuses animals may then become desensitized to the pain felt by another living creature, which in turn makes it easier to inflict harm on a human victim.[7] As a result, there has been a push in recent years for the protection of victims of both animal and domestic abuse by including pets within domestic abuse statutes.

            One way that domestic abuse victims may receive relief from abuse is to obtain protective, protection, or restraining orders. In these cases, the person requesting the protection order is known as the petitioner and the opposing party is known as the respondent.[8] At its most basic level, a protection order allows a victim of domestic violence to ask the court for an order that would prevent the abuser from contacting them, potentially removing the abuser from the home.[9] Although less than twenty percent (20%) of all women who have been physically assaulted seek a protection order, remarkably eighty-six percent (86%) of the women who received a protection order stated “the abuse either stopped or was greatly reduced.”[10] One study of 150 women who obtained a protection order found that the women who sought a protection order reported significantly lower levels of intimate partner violence, up to 18 months after applying for a protection order.[11]

While protection orders seem to offer protection for domestic abuse victims, not enough victims use them, often viewing them as the last resort. One study found that for seventy-five percent (75%) of the women surveyed, seeking an order for protection was the last resort after other requests for help had failed.[12] The women in this study wanted to successfully end the violence in their lives because the abuse was escalating and hurting their families.[13] The protection orders remain successful in both reducing violence and allowing victims to reclaim some control over their lives. Access to the court is a way to “reclaim what abuse has systematically stripped from them,” that is, any control they had.[14]

            Advocates, lawyers, and legislators have recognized the success of the protection order as a means to reduce violence and the link between animal abuse and other abuse. Including animals in domestic violence protection orders provide for the safety of both animal and human victims of domestic violence because the abusive partner may claim co-ownership of the animal or may further abuse the animal absent a protection order.[15] The abuser may also use the pet to force the victim to stay. In recognition of these problems, legislators have increasingly included pets within their protection order statutes. To date, thirty-five (35) states include pets within their protection order statutes.[16]

            Unfortunately, Nebraska’s laws on domestic abuse protection orders do not protect pets and their guardians. This Comment argues that Nebraska should join the 35 other states who expressly include pets within their protection order statutes. First, this Comment will discuss the unique role of pets within the law. Second, this Comment will discuss protection orders in Nebraska. Third, this Comment will discuss why other states have decided to include pets within their protection orders. Fourth, this Comment will discuss why half-steps, like catch-all provisions or updated forms, provide inadequate relief for domestic abuse victims. The state of Alaska recognized this inadequacy in their attempt to amend their own statute. Finally, this Comment argues Nebraska has not lived up to the purpose of the Protection from Domestic Abuse Act. As such, Nebraska should update its laws to specifically include pets within their protection orders. Nebraska should allow the petitioner to receive temporary possession of the pet as a result of a protection order. 

II.        Analysis

A.  Pets hold a unique place in the law and must be specifically accounted for within the law.

            Pets hold a unique place in the law, somewhere adjacent to property. Some courts have expressly defined pets as property, but they then stress that property is not a “pejorative but a legal descriptor.”[17] Other courts have recognized that a pet “is not just a thing but occupies a special place somewhere in between a person and a piece of personal property.”[18] Some courts have even finessed their way to create new categories of property to specifically describe pets.[19] Pets are a grey area – they do not “fit neatly within traditional property law principles.”[20] But generally, pets are considered a special type of personal property.[21]

            Because courts generally place pets adjacent to personal property, they often struggle to keep them confined to this category. Marital dissolution cases, for example, highlight this problem. Most courts will examine the best interests of all concerned parties when deciding which person should be the owner of the pet.[22] The factors to consider are: (1) why that person may benefit from having the pet in their life; (2) why the pet has a better chance of prospering and being loved in the care of one spouse rather than the other.[23] Nebraska, however, does not conduct this analysis.

            For example, in Brozek v. Brozek[24], the Nebraska Supreme Court upheld the division of the property, including horses, in the dissolution of marriage.[25] The court determined the value of the horses and awarded the horses to the spouse who owned the horse trailer.[26] The court did not apply the above factors – (1) why one person may benefit from the animal or (2) where the animal has a better chance of prospering. The Nebraska Supreme Court examined only the monetary impact of animal ownership.

Later, in a 2018 case, the Nebraska Supreme Court had to decide the true owner of a dog.[27] The court agreed that the dog was personal property.[28] The court further looked at whether the dog was given as a gift.[29] The relevant analysis by the court focused on the dominion and control over the dog, rather than any consideration for the best interest of all involved.[30] Again, Nebraska did not apply the two-factor test above looking at animal welfare. Despite other courts seemingly wanting to expand animals to a separate category, Nebraska has thus far declined to do so, even within the rather straightforward issue of marital dissolution. Most courts seem uncomfortable referring to pets as property. Nebraska should feel the same. 

            B.  Nebraska Protection Orders are in need of revisions

There are three types of protection orders in Nebraska: (1) the harassment protection order[31], (2) the sexual assault protection order[32], and (3) the domestic abuse protection order.[33] A domestic abuse protection order, as opposed to other protection orders, has the express purpose to protect victims of domestic abuse.  To this end, protection orders may be granted to a victim of domestic abuse as statutorily defined. These protection orders are designed to serve as an injunction to prevent future harm rather than punish past conduct. The protection order hearings provide notice to the respondent but are often informal, with the judge playing a key role in the proceedings.

1.     Statutory Definitions and Requirements for Protection Orders 

The Protection from Domestic Abuse Act houses Nebraska’s domestic abuse protection orders and their purpose.[34] The stated purpose of the Protection from Domestic Abuse Act is to “provide abused family and household members, necessary services including shelter, counseling, social services, and limited medical care and legal assistance” because there is a “present and growing need to develop services which will lessen and reduce the trauma of domestic abuse.”[35] The domestic abuse protection order is designed to protect victims of domestic abuse. A victim of domestic abuse is statutorily defined as one who fits in these categories: “spouses or former spouses, children, persons who are currently residing together or who have resided together in the past, persons who have a child in common whether or they have been married or living together at any point” other persons related by consanguinity, and those presently dating one another.[36] Any victim of domestic abuse may file a petition for a protection order.[37] Victim of domestic abuse is statutorily defined and limited to these categories.

Abuse is also statutorily defined and limited. The two definitions for abuse are for the actual bodily injury and the other is the credible threat. The actual bodily injury definition is straightforward and requires a showing that the abuser attempted to cause or intentionally and knowingly caused bodily injury.[38] The credible threat definition requires a showing that the abuser put the victim in fear of bodily injury.[39]

Nebraska law requires a showing that the petitioner was a victim of domestic abuse and that the protection order is necessary to prevent future harm. The threshold issue is whether the behavior that necessitated the protection order occurred and must withstand a preponderance of the evidence standard.[40] The court’s responsibility during a protection order hearing is twofold – first, the court must find that there was behavior that necessitated a protection order. Then, the court must determine that the protection order is necessary to prevent future harm. 

2.     Protection orders serve as an injunction to prevent future harm

Protection orders in Nebraska are analogous to an injunction and thus focused on preventing future harm.[41] To determine whether future harm is likely, the court looks at a number of factors, including but not limited to: (1) the remoteness, severity, nature, and frequency of past abuse; (2) past or pending credible threats of harm; (3) the psychological impact of domestic abuse; (4) the potential impact on the parent-child relationship, and; (5) the nuances of household relationships.[42] Only once the court decides that future harm is likely, then the court may enter the protection order.

Nebraska courts have not yet fully expounded upon these factors. In Maria A. v. Oscar G., for example, the court determined that one-time abuse, specifically hitting a child with an open hand on the leg, did not show that the respondent was likely to do so again.[43] The court determined the likelihood of future harm was low because both the petitioner and respondent stated that this was the first time abuse occurred.[44] In addition, there was no bodily injury as a result of the abuse.[45]

The purpose of the injunction is not to punish past behavior… the purpose is to prevent future harm. A court will issue an injunction to restrain actions that have not yet been taken.[46] Injunctive relief is “preventative, prohibitory, or protective.” And typically, the court will not issue an injunction when the act complained of has already been committed and the injury has already occurred.[47] A court has the discretion to withhold injunctive relief where the injury would likely inflict a greater injury than the grievance complained of.[48] The court must strike a balance intended to prevent future harm rather than focusing on punishing past behavior.

The Nebraska Supreme Court has long explained that the purpose of an injunction is to prevent a party from doing wrong. The court previously explained that the “purpose of an injunction is not to afford a remedy for what is past but to prevent future mischief.”[49] Thus, the injunction is used not to compel someone to do the right thing; rather it is being used to prevent someone from doing wrong.[50]

The protection order serves its purpose to prevent future mischief by protecting the petitioner. It restrains certain actions by the respondent that may cause harm to the petitioner, such as contacting the petitioner[51], entering the petitioner’s home[52], and more. The respondent is excluded from the petitioner’s home even if the respondent owns the property. The respondent is also enjoined from owning a firearm, in recognition of the violent link between firearms and domestic violence.[53]

The court can go further in an effort to protect the petitioner and prevent future mischief if it deems the relief necessary. As part of the order, the court can award the petitioner temporary custody of any children as long as it did not exceed ninety (90) days.[54] There is also a catch-all provision – this provision allows the court to order “such other relief deemed necessary to provide for the safety and welfare of the petitioner and any designated family or household member.”[55] However, in keeping with the purposes of an injunction, the relief would need to be fashioned in such a way to prevent future harm rather than to punish the respondent.

3.     How to get a protection order in Nebraska

            The protection order forms are easy to complete and include all the information needed to serve the respondent. The forms to fill out for a protection order are located on the Nebraska Supreme Court website.[56] The forms ask for all the information of the respondent, including identifying information.[57] It also asks for any other person that the petitioner is filing on behalf of and the most recent incidents of abuse.[58] These forms do not ask for any property that might need to be retrieved.[59]

The affidavit and petition provide information and notice to the respondent and the judge about why the protection order is sought and dictates how the hearing will proceed. To comply with procedural due process, the respondent must be notified of the grounds on which the protection order is sought.[60] The court looks at the affidavit and form and if the court determines that the petitioner is in imminent danger of abuse, then the protection order may be issued ex parte.[61] There will either be a show cause hearing or an evidentiary hearing to determine whether the protection order should be issued or stay in place.[62] A prima facie case may be established by the form petition and affidavit, but to be considered as evidence, the form petition and affidavit must be offered and accepted at the hearing.[63] Show cause hearings are limited to what are contained within the petition and affidavit,[64] therefore it is important for a petitioner to put as much information about the abuse allegations as possible in the form petition and affidavit. During the hearing, testimony must be under oath. Any documents must be put into evidence to be considered.[65] Because both parties often proceed unrepresented, the judges take an active role in controlling the procedure and in enforcing whether evidence is relevant before allowing it in.[66]

Even though the parties often times will proceed pro se and hearings are informal, the courts are supposed to treat the parties involved as if they are represented by counsel.[67]  In a previous case, the Nebraska Court of Appeals noted that even in protection order hearings “a pro se litigant will receive the same consideration as if he or she had been represented by an attorney, and, concurrently, that litigant is held to the same standards as one who is represented by counsel.”[68] And the court further observed that despite the relaxation of rules, the rules of evidence would still apply in a protection order hearing.[69]

C.  States have recognized the link between animal abuse and other forms of abuse.

Many states now recognize the link between animal abuse and other abuse. Legislatures across the nation have granted local courts the ability to issue protective orders that address the special circumstances of domestic violence victims with pets who are also at risk.[70] For example, when the California legislature amended its protection order statutes to allow for victim to receive custody of a pet, the California legislature found that abusers “often abuse animals in order to intimidate, harass, or silence their human victims.”[71] Further, California found that animals were abused in eighty-eight percent (88%) of homes where child physical abuse was present.[72] California cited to a study that a survey of fifty (50) of the largest women’s shelters found that eighty-five percent (85%) of women and sixty-three percent (63%) of children entering shelters discussed incidents of pet abuse in the family.[73] Finally, California cited to a study that seventy-one percent (71%) of those having pets affirmed that their partner had threatened, hurt, or killed their companion animals.[74]

It’s just not the raw statistics that get the attention of state legislatures; the testimony of victims and the work of attorneys and advocates often convinces legislatures to act. For example, after a presentation to the Maine State Bar Association on animal abuse and domestic violence, a judge asked the presenter about the possibility of expanding protection orders.[75] The presenter then worked with Maine legislators to expand their protection orders. During the public hearing on the law, Ms. Susan Walsh testified that she was unable to leave her husband out of fear of what he would do to all the animals.[76] She testified at length as to the abuse that the animals that they owned whenever she tried to leave him, including shooting two of the sheep they owned.[77] She also testified that her husband deliberately ran over their dog with a truck.[78] Maine legislators were moved by her testimony. That, combined with raw statistics (specifically citing one study that showed seventy-one percent (71%) of pet-owning women in a Utah shelter whose abusers either harmed, killed, or threatened their pets),[79] convinced Maine to amend their protection order laws.[80]

In state after state, victims and advocates worked together to protect people from domestic violence or retaliation from the abuser. In Vermont, a victim testified about her experience and animal abuse.[81] In Maryland, one advocate explained why it was the one of the most dangerous times for a victim. She testified:

“When a victim leaves an abusive relationship she takes … power and control away from the abuser, which enrages the batterer. This is why leaving is the most dangerous time for the victim and for those things she loves most, like her pets. This is also the time when she needs the most support in the form of shelter and Protective Orders. So the question should not be why does she stay, it should be what we have done to help her leave safely and without fear of retaliation to those pets she loves.”[82]

States all over the country have recognized the link between animal abuse and domestic violence and updated their laws. It’s time Nebraska does the same.

 D.  States that have not updated their laws to include pets inadequately protect domestic abuse victims.

The vast majority of states have enacted legislation that includes provisions for pets in domestic violence protection orders. According to the Animal Legal & Historical Center, the only states without laws in place specifically allowing pets in domestic violence protection orders are as follows: Alabama, Delaware, Georgia, Idaho, Kansas, Kentucky, Mississippi, Montana, Nebraska, New Mexico, North Dakota, Pennsylvania, South Dakota, and Utah.[83]

1.     The problem of a catch-all provision

            Some states have not updated their statutes and petitioners would be forced to rely on catch-all provisions within the current protection order statutes.[84] These catch-all provisions allow the judge to order any relief necessary for the welfare and safety of the petitioner.[85] These catch-all provisions require an additional ask by the petitioner to include the relief to protect the pet, if the petitioner is even aware enough to ask for this relief.[86] Commentators have noted the need for specific statutory language to include pets, stating the catch-all provision is helpful but not enough.[87]

Catch-all provisions are better than nothing. Trial courts can use these catch-all provisions to award possession or custody of the pet to a petitioner. For example, in Alabama, a mother filed a protection from abuse petition under Alabama’s Protection from Abuse Act against her daughter.[88] As part of the litigation over this protection order, the daughter requested that certain property, including a dog be returned to her.[89] The trial court denied the daughter’s request and entered a protection order in favor of the mother.[90] The mother extended the protective order and eventually filed suit alleging that her daughter violated the protective order by having her boyfriend steal the dog from her home.[91] The trial court then ordered the daughter to return the dog to the mother.[92] The daughter appealed arguing that the trial court exceeded the statute’s authority because it decided ownership of the dog and the protective order was never intended to be used that way.[93] But the appellate court rejected these arguments and determined that the court could use the catch-all provision to award possession of the pet because the relief was necessary for the safety and welfare of the petitioner. 

            Catch-all provisions provide inconsistent results because there is not clear statutory language. Judges without training in domestic violence may act on assumptions that are informed by the norms of the communities in which they live and work.[94] In addition, judges may “discount the real perils that these women face.”[95] There may be frustration expressed by the judge because a woman seeks a protection order, returns to an abuser, or abandons seeking a protection order.[96] Without the proper training, judges may not realize that pets can be included within this catch-all provision since the statutes do not specifically include pets.[97] And in many rural communities, judges may not have the legal background that includes the process of protection orders.[98]

Petitioners, likewise, will not have sufficient knowledge about whether a pet can be included within a catch-all provision.[99] Their hearings often go on without any lawyers present.[100] If the petitioners are unsure if a pet can be included within a catch-all provision, then the respondent will not have sufficient notice that possession of the pet can be a potential ramification of the protection order. Without clear language in the statutes for a victim or a judge to rely on, the lack of knowledge may prevent victims from obtaining relief designed to protect them and their pet. These issues are exacerbated in rural communities without enough resources for victims.[101]

2.     Updating the protection order Forms, absent any other change, is inadequate.

            Since most petitioners in a protection order case are unrepresented, courts have created forms for petitioners to fill out the relevant information to obtain a protection order.[102] This has been done in states prior to the protection order statutes being changed.[103]

            The Florida Supreme Court wrote about the need to update and simplify its forms for domestic abuse victims. The court wrote that “simplifying the process is especially important in the domestic violence context, wherein a great many of the litigants are unrepresented.”[104] Further, the court recognized the confusion that petitioners may face when attempting to obtain a protection order. The court explained that “understanding the relief granted in domestic violence injunction cases is absolutely essential, especially in cases involving pro se litigants.”[105]

            In other instances involving protection orders, commentators have called for the updating of forms. For instance, one commentator explained the need to update protection order form so that there would be an option for GPS tracking.[106] The reasoning behind this argument is sound for also updating protection order forms to include pets. First, it will put the petitioner in a position to include information about the pet and the relief requested.[107] But second and more importantly, having this information updated will make it easier for a judge who might be unwilling to impose the conditions.[108]

            However, updating the protection order form by itself is not enough to protect abuse victims. If the change in the forms do not have statutory backing, the judges may be unwilling to issue relief concerning the pets.[109] Instead, updating the forms should be done in conjunction with updating statutes, as Alaska learned.

3.     Alaska recognized a change in forms and a catch all provision are not enough to protect abuse victims. 

            Alaska updated its protection order statutes in 2016 to include the temporary possession of pets. Because of this change, a protection order “may grant the possession and use of essential personal items, including a pet, regardless of ownership of the personal items.”[110] Prior to this change, pets were not specifically included in their statute, but the protection order forms did include a check box to indicate pets.[111]

The 29th Legislature examined H.B. 129 after Alaskan citizens called for the protection order statutes to specifically include pets.[112] At the hearing, witnesses testified that the importance of expressly including the pets within the statute was first and foremost so judges know they can include pets.[113] One witness testified that in other jurisdictions, judges were hesitant and refused to include pets in orders because they felt they did not possess the authority.[114] Without the law specifically guiding judges, there was not consistency with how a protection order would be obtained and granted for the possession of the pet. Some judges might consider the pets for the purposes of custody, or they might consider them personal property.[115] Uniquely in Alaska, there are a number of rural areas with magistrates making these decisions as well who did not have experience with protection orders.[116] Clarity in the law would provide the much-needed guidance to these judges and magistrates. 

Another reason Alaska citizens believed the amendment was important was for victims before seeking a protection order. Including pets in the law reminds the petitioner to include pets or the form. This could spark the mind of the petitioner to remember to include information about the pet.[117]

Not everyone in Alaska found this change necessary. The executive director of the Alaska Network on Domestic Violence and Sexual Assault, for example, testified in opposition to the bill because the protection order forms currently include that checkbox for pets.[118] But another witness pointed out that without statutory support, even a judge initially willing to grant the order may balk if there is not statutory support for the order, even if it is on the form.[119] Codifying pets into the statutes would put all parties on notice – the judges, the petitioner, and the respondent.[120]

In the H.B. 147 hearing, senators discussed the inadequacy of their catch-all provision.[121] One witness said with just a catch-all provision, judges might not feel that they have the authority to include pets, or even that they cannot include them without more specific statutory authority.[122] Codifying pets into their protection order laws would tell the judge and the parties that this is an appropriate remedy to seek. It would remove the hesitancy and obscurity from the judge issuing the order. Alaska, like many other states, agreed that the best way forward to further protect victims and their companion animals was to codify the protections for pets within their statutes.

E.  Nebraska should update its laws to protect victims of domestic abuse and their pets.

Nebraska can use Alaska as an example as to how and why it should update protection order laws. Currently, pets do not fit in with the statutory framework for domestic abuse protection orders in Nebraska. Pets cannot be victims of domestic abuse under the current statutory definition of “victim” – the statute only allows for persons to be victims of domestic abuse.[123] Threats to pets would not be a victim for the credible threat prong of the domestic abuse statutory provision.[124] Despite some restraints on liberty to the respondent, the domestic abuse protection order does not explicitly prevent a respondent from having possession of the pet or custody of the pet.[125] If pets are to be specifically included within the statute, the statutes must be updated.

Nebraska case law applying the forward-looking approach to protection orders would likely not include pets. The court in Maria A. noted that the court, in issuing a protection order, should consider the “the remoteness, severity, nature, and frequency of past abuse.”[126] This analysis would likely ignore or minimize the abuse of a pet and its effect on an abuse victim. The abuse of a pet has a direct link to the cycle of abuse. The dissent expressly warns that the majority’s analysis would likely “minimize the risk of harm of escalating domestic violence and ignore the possibility that” the victim would be subject to future abuse or a cycle of abuse.[127] The abuse of a pet is exactly what the dissent warns will be minimized and ignored. 

While Nebraska has a catch-all provision that could arguably include pets within the protection order, the application of the catch-all provision inadequately protects both human victims and pets. The catch-all provision does not provide adequate notice to a respondent that a pet may be removed from their possession. Because the forms for the protection order do not include any language about pets on the form, the petitioner is unlikely to have their memory sparked to include language about the pets.[128] The forms do not include any request for property to be protected or returned to the petitioner.[129] Judges may be unfamiliar of the relationship between animal abuse and other forms of abuse.[130] And finally, there would not be any certainty in the law because decisions would be made on a judge-by-judge basis. 

Because (1) the current statutory framework does not include pets; (2) the forward-thinking analysis of protection will likely not include pets, and; (3) the catch-all provision will not provide adequate protection for domestic abuse victims and their pets, the Nebraska protection order statutes should be amended to specifically include pets.

1.     Nebraska should update its protection order forms, even if it is not enough to fully protect domestic abuse victims and their pets 

The protection order forms would not need to be updated by statute because these forms are promulgated by the clerk of the court.[131] With language on the forms to include pets, the petitioner would have their memory sparked to remember to put information about the pet on the form.[132] Because the petition is served to the respondent, the respondent would also know about the possibility of discussions about the pet. If the petitioner filled out the form to include information about the pet on the form, then the judge would also be on notice that the ownership of the pet is likely going to be an issue at the hearing. 

The update to the form would allow the petitioner to ask for relief in the catch-all provision more easily, but without a corresponding update in the statutes, the change would not be enough. Because all parties would be on notice of the pet being a part of the reason for the protection order, the petitioner could use the catch-all provision to ask for temporary possession of the pet. However, there is no statutory backing behind a change in the protection order form. Thus, a judge may not feel comfortable awarding a petitioner temporary possession or custody of the pet.

2.     Nebraska should update its laws to provide temporary custody or possession of the pet for the petitioner 

In addition to the changes to the protection order forms discussed above, Nebraska should also change its statutes to allow the petitioner to receive temporary possession or custody of the pet when the protection order is issued. First, Nebraska should update its protection order forms. Then, Nebraska should update its statutes as other states have to include temporary possession of the pet. This would work similarly to the temporary custody of minor children. Currently, with a domestic abuse protection order, the court may award “the petitioner temporary custody of any minor children not to exceed ninety days.”[133] The statute could be updated to provide temporary custody of any minor children and any pet within the household regardless of who owns the pet not to exceed ninety days.[134]

An amendment like this would fit within the injunctive nature of protection orders – removing a pet from the household would prevent future mischief that could occur to the pet.[135] The removal of the pet would not be an effort to compel the respondent to do right, but rather prevent the respondent from future wrongdoing.[136]

This would allow for there to be certainty within the law and put the petitioner, respondent, and judge on notice of the importance of the pet within the protection order hearing. 

3.     Absent these changes, lawyers representing clients seeking protection orders can still assist domestic abuse victims and their pets. 

            Even without these changes, lawyers, as advocates for their clients, can help protect victims of domestic abuse and their pets. It is not necessary for a petitioner to seek out a lawyer to assist them in obtaining a protection order. Although protection order hearings are generally informal, evidence must be offered and accepted at the hearing for the protection order to be granted.[137] As such, it may be helpful for a petitioner to seek out a lawyer to assist. First, the lawyer can advise the client to include information about the abuse of a pet on their form in filing for a protection order. And second, the lawyer may ask for relief that includes temporary custody of the pet. In Nebraska, the lawyer would have to do this under the catch-all provision. A lawyer should advise the client to include information about the abuse of a pet on the form they file to receive a protection order.  

A lawyer may also ask for additional relief including temporary custody of the pet. In Nebraska, this optional relief would only be included in the catch-all provisions of the statute. The lawyer would have to ask for this relief specifically, with evidence that the custody of the pet is necessary for the safety and welfare of the petitioner. This evidence may be included with the testimonial attached to Nebraska’s protection order form. It can also be from the petitioner’s testimony before the judge about why they believe the protection order is necessary. 

III.      Conclusion

            It is now well-understood that there is a link between violence toward animals and community-involved violence. And abusers typically escalate their abuse as it goes on. Unfortunately, abuse victims frequently stay within the confines of their relationship out of fear, especially when pets are involved. Protection orders are effective at protecting abuse victims, and their pets, from abusers. 

            Pets play a unique role in our lives and the law. Pets need to be expressly accounted for within protection order statutes. Half-measures, such as relying on a catch-all provision or updating protection order forms, are not enough. Currently, Nebraska’s protection order statutes do not include pets within their protection orders, we rely on these half-measures. This must change. Other states have been moved by the statistics and the moving testimony of witnesses and advocates. Nebraska must follow. 



[1]  See Audie Cornish, Hashtag Activism In 2014: Tweeting 'Why I Stayed', NPR (Dec. 23, 2014, 4:21 PM), (explaining the use of the hashtag in an astonishingly emotional segment with a transcript of the interview included).

[2]  See Franchesca Ramsey, 14 Tweets Answer 'Why I Stayed.' 11 Broke My Heart, But The Last 3 Gave Me Hope (Sep. 9, 2014) (using tweets from abuse victims to explain why abuse victims stayed, including one stating “[i]t’s not one day he hits you, it’s everyday he works hard to make you smaller”). 

[3]  Pets and Domestic Violence, Nat’l Coal. Against Domestic Violence, (last visited May 5, 2020).

[4]  See Animal Welfare Institute, Safe Havens, (last visited May 5, 2020) (showing an emotionally devastating little paragraph “Your computer use can be monitored by others. Consider using a public computer or a friend’s computer. Please view more computer safety tips, close the window, or . . .“ with a link to Google to exit the page discretely).

[5]  Phil Arkow & Tracy Coppola, Expanding Protective Orders to Include Companion Animals 3 (Am. Bar. Ass’n Comm’n on Domestic Violence 2008),

[6]  See Cynthia Hodges, The Link: Cruelty to Animals and Violence Towards People, Animal Legal & Histr. Ctr. (2008), (discussing the research showing the link between animal abuse and domestic abuse).

[7]  Id.

[8]  See e.g., Neb. Rev. Stat. § 42-924 (1)(a) (Reissue 2016) (referring to the person filing the petitioner as the petitioner and the one receiving the petition as the respondent). 

[9]  See Beverly Balos, 2006 Edward v. Sparer Symposium: Civil Gideon: Creating a Constitutional Right to Counsel in the Civil Context: Domestic Violence Matters: The Case for Appointed Counsel in Protective Order Proceedings, 15 Temp. Pol. & Civ. Rts. L. Rev. 557, 561-62 (2006) (explaining what a civil protection order would be used for in the context of a domestic abuse protection order.

[10]  Margreta Vellucci, Restraining the (Real) Beast: Protective Orders and Other Statutory Enactments to Protect the Animal Victims of Domestic Violence in Rhode Island, 16 Roger Williams U. L. Rev. 224, 228 (Spring 2011). 

[11]  Balos, supra note 9, at 566-67 citing Judith McFarland et al., Protection Orders and Intimate Partner Violence: An 18-Month Study of 150 Black, Hispanic, and White Women, 94 Am. J. Pub. Health 613, 616-17 (2004).

[12]  Balos, supra note 9, at 564 citing Karla Fischer & Mary Rose, When Enough is Enough: Battered Women’s Decision Making Around Court Orders of Protection, 41 Crime & Delinq. 414, 416 (1995) (noting that in addition, 92% of women seeking protection orders were tired of the abuse).

[13]  Fischer & Rose, supra note 13 at 420. 

[14]  Id. at 423.

[15]  Vellucci, supra note 11, at 242.

[16]  Rebecca F. Wisch, Domestic Violence and Pets: List of States that Include Pets in Protection Orders, Animal Legal & Histr. Ctr. (2022),

[17]  Strickland v. Medlen, 397 S.W.3d 184, 185-86 (Tex. 2013). See also Hament v. Baker, 196 Vt. 339, 342, 97 A.3d 461, 463  (2014) (explaining that although the Vermont Supreme Court has consistently ruled that pets are property, pets are alive and form emotional attachments with their owners). 

[18]  Corso v. Crawford Dog & Cat Hosp., Inc., 97 Misc.2d 530, 531, 415 N.Y.S.2d 182, 183 (Civ. Ct. 1979). See Hennet v. Allan, 43 Misc.3d 542, 547, 981 N.Y.S.2d 293, 297 (Sup. Ct. 2014) (holding that pets are more than just “personal property” when it comes to resolving a dispute between owners). 

[19]  See Feger v. Warwick Animal Shelter, 59 A.D.3d 68, 71, 870 N.Y.S.2d 124, 126 (App. Div. 2nd Dept. 2008) (explaining that companion animals are a special category of property and are afforded many protections under the law). 

[20]  Morgan v. Kroupa, 167 Vt. 99, 103, 702 A.2d 630, 633 (1997).

[21]  See Strickland at 192.

[22]  See Raymond v. Lachmann, 264 A.D.2d 340, 341, 695 N.Y.S.2d 308, 308-09 (App. Div. 1st Dept. 1999). But see Travis v. Murray, 42 Misc.3d 447, 460, 977 N.Y.S.2d 621, 631 (Sup. Ct. 2013) (stating the best interests of all not involved is not the same as the best interests of the pet.

[23]  Id. The parties would have to be able to answer these questions in order to show the custody of the pet was in the best interest of all involved.

[24]  292 Neb. 681, 874 N.W.2d 17 (2016)

[25]  Id. at 695-96, 874 N.W.2d at 29-30.

[26]  Id.

[27]  Zelenka v. Pratte, 300 Neb. 100, 912 N.W.2d 723 (2018).

[28]  Id. at 106, 912 N.W.2d at 728.

[29]  Id.

[30]  Id. at 108, 912 N.W.2d at 729.

[31]  Neb. Rev. Stat. § 28-311.09 (Reissue 2016). 

[32]  Neb. Rev. Stat. § 28-311.11 (Reissue 2016).

[33]  Neb. Rev. Stat. § 42-924 (Reissue 2016). This comment focuses on the domestic abuse protection order. 

[34]  Neb. Rev. Stat. § 42-901 et seq. (Reissue 2016).

[35]  Neb. Rev. Stat. § 42-902 (Reissue 2016).

[36]  Neb. Rev. Stat. § 42-903 (3) (Reissue 2016).

[37]  Neb. Rev. Stat. § 42-924 (1)(a) (Reissue 2016).

[38]  Neb. Rev. Stat. § 42-903 (1)(a) (Reissue 2016).

[39]  Neb. Rev. Stat. § 42-903 (1)(b) (Reissue 2016). The threat can be a written or verbal threat and there is no intent requirement for the abuser to actually carry out the threat. Id.

[40]  See S.B. v. Pfeifler, 26 Neb. App. 448, 455, 920 N.W.2d 851, 856 (Neb. Ct. App. 2018)

[41]  Maria A. v. Oscar G., 301 Neb. 673, 678, 919 N.W.2d 841, 846 (2018).

[42]  Id. at 681-82, 919 N.W.2d at 848. 

[43]  Id. at 686, 919 N.W.2d at 850.

[44]  Id.

[45]  Id. However, as the dissent points out, the larger family dynamics at play show that this abuse was an escalating form of domestic abuse because the petitioner reported being hit in the past and while the majority talks about the psychological impact, only the dissent analyzed the potential impact of escalating abuse. 693-95, 919 N.W.2d at 855 (Miller-Lerman, J., dissenting).

[46]  Nesbitt v. Frakes, 300 Neb. 1, 6, 911 N.W.2d 598, 604 (2018).

[47]  Id.

[48]  Omaha v. Rubin, 177 Neb. 314, 318, 128 N.W.2d 814, 816 (1964).

[49]  Conrad v. Kaup, 137 Neb. 900, 902, 291 N.W. 687, 688 (1940).

[50]  Id.

[51]  Neb. Rev. Stat. § 42-924 (1)(a) (Reissue 2016).

[52]  Id. at (a)(iv) .

[53]  Id. See also Nat’l Coalition Against Domestic Violence, Domestic Violence and Firearms (2016)  (showing a number of statistics about the impact of firearms in a relationship with domestic violence including that 1 out of 5 homicide victims with temporary protection orders were murdered within two days of obtaining the order and 1 out of 3 were murdered within the first month). 

[54]  Id.

[55]  Id. at (a)(viii).

[56]  Supreme Court of Nebraska, Information Worksheet for the Domestic Abuse Protection Order, (Dec. 2019) (the information worksheet also includes the form petition and affidavit); Neb. Rev. Stat. § 42-924.02 (Reissue 2016).(the forms are promulgated by the clerk of the district court)

[57]  Id. at 3.

[58]  Id, at 10-11.

[59]  Id.

[60]  D.W. v. A.G., 303 Neb. 42, 50, 926 N.W.2d 651, 657 (2019). Nebraska courts have rejected attempts to switch the theories for the protection order at too late of a date. Id.

[61]  Neb. Rev. Stat. § 42-925 (1) (Reissue 2016). If an ex parte order is entered it serves as a temporary protection order and a show cause hearing may be scheduled by the respondent to show cause why the protection order should not be entered; otherwise, an evidentiary hearing is scheduled about the protection order. Id.

[62]  The evidentiary hearings are also considered show cause hearings but their purpose is to show whether the facts in the sworn application are true. Mahmood v. Mahmud, 279 Neb. 390, 397, 778 N.W.2d 426, 432 (2010).

[63]  Id. at 398, 778 N.W.2d at 433. 

[64]  See Mahmud at 397, 778 N.W.2d at 432 (holding “the contested factual hearing in protection order proceedings is a show cause hearing, in which the fact issues before the court are whether the facts stated in the sworn application are true”).

[65]  Id.

[66] Zuco v. Tucker, 9 Neb. App. 155, 160, 609 N.W.2d 59, 64 (2000). The court is justified in excluding evidence if the probative value of the evidence “is substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Mahmud, 279 Neb. at 397, 778 N.W.2d at 432.

[67]  In a study outside of Nebraska, it was found that having counsel greatly increased the chances of obtaining a protection order. Russell Engler, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed, 37 Fordham Urb. L.J. 37, 53 (Feb. 2010). 

[68]  Sanwick v. Dean, No. A-17-790, Neb. App. LEXIS 65 at *9 (Ct. App. Apr. 3, 2018) (not designated for permanent publication).

[69]  Id.

[70]  Samantha Tucker, Note, No Way to Treat Man’s Best Friends: The Uncounted Injuries of Animal Cruelty Victims, 19 Animal L. 151, 157 (2012).

[71]  S. 353, 205th Leg., Reg. Sess. (Cal. 2007).

[72]  Id.

[73]  Id.

[74]  Id.

[75]  New Law Includes Pets in Spousal Protection, NBC News (May 19, 2006) 3:47 PM),

[76]  Id.

[77]  Id.

[78]  Id.

[79]  Id.

[80]  ME. Rev. Stat. Ann. tit. 19 § 4007 (2021).

[81]  Vellucci, supra note 11 at 243. The abuse victim, Amy Messina, stated that she hoped that the new law would provide protection to other victims in similar situations. Id.

[82]  Joshua L. Friedman and Garcy C. Noman, Protecting the Family Pet: The New Face of Maryland Domestic Violence Protective Orders, 40 U. Balt. L.F. 81, 105 (Fall 2009).

[83] Wisch, supra note 19

[84] See Animal Welfare Institute, Including Pets in Protection Orders: A State-by-State Guide, content/including-pets-protection-orders (last visited July 13, 2022) (explaining that “even if a state does not have a pet protection order statute, a petitioner should include incidents of pet abuse or threated abuse in the complaint or petition and request that the court include pets in the property or ‘other relief’ section of the protection order to cover the pets”). 

[85]  See e.g., Neb. Rev. Stat. § 42-924(1)(a)(viii) (Reissue 2016), Ala. Code § 30-5-7(b)(9) (LexisNexis 2020);  see also Animal Welfare Inst., Representing Domestic Violence Survivors with Pets in Colorado 8  (last visited May 5, 2020) (explaining that even if a state does not have specific statutory language for the protection of the pet that the petitioner should still request the court to include the companion animals in other relief portion of the request).

[86]  See id. (explaining that the petitioner would have to specifically request to include companion animals in the protection order in the other relief portion of the request).

[87]  Vellucci, supra note 11, at 242 (explaining that not having the specificity of including animals within the protection order can allow the abuser to retain ownership of the pet).

[88]  Placey v. Placey, 51 So.3d 374, 375 (Ala. Civ. App. 2010).

[89]  Id. at 375-76.

[90]  Id. at 376.

[91]  Id.

[92]  Id.

[93]  Id. at 377.

[94]  Lisa R. Pruitt, Place Matters: Domestic Violence & Rural Difference, 23 Wis. J.L. Gender & Soc’y 346, 383 (Fall 2008). 

[95]  Id. One commentator noted that 17% of rural offenders were ordered into marriage counseling, whereas no urban offenders were ordered into marriage counseling. Id. at 384. 

[96]  Id. at 383. 

[97]  See id. at 385 (stating that only in about a quarter of courts in rural areas that have dedicated staff to assist with protection orders and is almost 70% of courts in counties with over 800,000 people or more); see also Protecting Domestic Violence Victims by Protecting Their Pets Hearing on H.B. 147 Before the H. Jud. Committee, 29th Leg. (Ak. Apr. 1, 2015) (hereinafter H.B. 147 Hearing) (statement of Kathy Hessler, L. Prof. at Lewis & Clark L. Sch.) (noting that judges feel disinclined to issue relief for possession of pets or otherwise believe that they do not have the authority to give possession of a pet where there is a catch-all provision). 

[98]  See Pruitt, supra note 106, at 385 (explaining the lack of services in rural communities for domestic abuse victims including less advocates and shelters for abuse victims) and H.B. 147 Hearing (statement of Ronnie Rosenberg, President Animal Control Comm’r, Fairbanks Animal Shelter Fund) (noting that in some rural areas of Alaska, the magistrates are not attorneys who do not have the knowledge to make the determination about pets and their custody in a protection order).

[99]  Id. (explaining that nearly a third of rural applicants for protection orders complained about lack of judicial knowledge prior to seeking a protection order); see infra note 111 explaining that there is a majority of petitioners who do not have lawyers).

[100]  See Anne Dannerbeck Janku & Joseph A. Vradenburg, Self-Represented Litigants and Civil Case Dispositions in Missouri: An Impact Analysis, 51 Ct. Rev. 74, 76 (noting that nearly two-thirds of all pro se litigants comprise of family law cases including domestic abuse protection orders); see also D.C. Access to Justice Comm'n, Justice for All? An Examination of the Civil Legal Needs of the District of Columbia's Low-Income Community83 (2008), (stating that 98% of all petitioners and respondents in the Domestic Violence Unit in Washington, D.C. proceeded pro se); see also Jane K. Stoever, Access to Safety and Justice: Service of Process in Domestic Violence Cases, 94 Wash. L. Rev. 333, 388 (March 2019) (noting that 95% of litigants in domestic violence cases in the state of Washington are self-represented); see also Jessica Steinberg, Demand Side Reform in the Poor People's Court, 47 Conn. L. Rev. 741, 749 n. 23 (Feb. 2015). (explaining that 80% of all litigants pursuing or defending against a harassment order appeared pro se).

[101]  See Pruitt, supra note 106, at 385 (explaining the lack of services in rural communities for domestic abuse victims including less advocates and shelters for abuse victims).

[102]  See supra note 111 (explaining that most petitioners in domestic abuse protection order proceedings are unrepresented).

[103]  See H.B. 147 Hearing (statement of Peggy Brown, Executive Director, Alaska Network on Domestic Violence and Sexual Assault) (explaining that the protection order forms have already been updated to include pets on the forms).

[104]  Amendments to Fla. Supreme Court Approved Family Law Forms--Sexual Violence Forms, 871 So. 2d 113, 116 (Fla. 2004) (Pariente, J. concurring).

[105]  Id.

[106]  Jaime Kay Dahlstedt, Notification and Risk Management for Victims of Domestic Violence, 28 Wis. J.L. Gender & Soc’y 1, 36 (Spring 2013). 

[107]  See id.

[108]  Id.

[109]  H.B. 147 Hearing (statement of Rep. Matt Claman, Member, H. Comm. On Jud.) (explaining that the forms being updated without statutory support may undermine the forms and not give confidence to judges to issue the relief sought).

[110]  Ak. Stat. Ann. § 18.65.520 (West 2020).

[111]  H.B. 147 Hearing (statement of Rep. Max Gruenberg, Member, H. Comm. On Jud.) (explaining that there is currently a box to check on the protection order form).

[112]  H.B. 147 Hearing (statement of Sherry Ramsey, Att’y and Director, Animal Cruelty Prosecution of the Humane Soc’y of the United States). “These laws make procedures within states consistent and ensure that judges understand they can provide this relief, which some judges do not.” Id.

[113]  Id.

[114]  H.B. 147 Hearing (statement of Kathy Hessler, L. Prof. at Lewis & Clark L. Sch.) (explaining that judges are currently hesitant to issue relief without this statutory change.

[115]  Id. Prof. Hessler explained that when judges do not have guidance, some judges are adding custody and some are treating the animals as property.

[116]  H.B. 147 Hearing (statement of Ronnie Rosenberg, President Animal Control Comm’r, Fairbanks Animal Shelter Fund).

[117]  Id. (explaining the purpose of the change is to make sure that judges and parties remember to include the pet in the hearing instead of waiting until later).

[118]  H.B. 147 Hearing (statement of Peggy Brown, Executive Director, Alaska Network on Domestic Violence and Sexual Assault). 

[119]  H.B. 147 Hearing (statement of Rep. Matt Claman, Member, H. Comm. On Jud.).

[120]  H.B. 147 Hearing (statement of Peggy Brown, Executive Director, Alaska Network on Domestic Violence and Sexual Assault)

[121]  H.B. 147 Hearing (statement of Kathy Hessler, L. Prof. at Lewis & Clark L. Sch.).

[122]  Id. Other commentators have also noted the need for specific statutory authority rather than relying on the catch all provision. See, e.g., Vellucci, supra note 11, 242.

[123]  Neb. Rev. Stat. § 42-903 (3) (Reissue 2016).

[124]  Id. at (1)(b). 

[125]  Neb. Rev. Stat. § 42-924 (1)(a) (Reissue 2016). 

[126]  Maria A. v. Oscar G., 301 Neb. 673, 681-82, 919 N.W.2d 841, 848 (2018).

[127]  Id. at 694, 919 N.W.2d at 854 (Miller-Lerman, J. dissenting).

[128]  See also H.B. 147 Hearing (statement of Ronnie Rosenberg, President Animal Control Comm’r, Fairbanks Animal Shelter Fund) (explaining that the purpose of the change is to have the parties remember the pets should be included).

[129]  See Supreme Court of Nebraska, supra note 69.

[130]  See Pruitt, supra note 105 (explaining that judges may only be familiar with the abuse suffered within their own social norms and communities.

[131]  Neb. Rev. Stat. § 42-924.02 (Reissue 2016).

[132]  See H.B. 147 Hearing (statement of Ronnie Rosenberg, President Animal Control Comm’r, Fairbanks Animal Shelter Fund) (explaining that the purpose of the change is to have the parties remember the pets should be included).

[133]  Neb. Rev. Stat. § 42-924 (1)(a)(vi) (Reissue 2016).

[134]  Other states have included this language within their statutes. See e.g., Md. Code Ann. Fam. Law § 4-501 (West 2020). 

[135]  Cf. Neb. Rev. Stat. § 42-924 (1)(a)(vi) (Reissue 2016); Conrad v. Kaup, 137 Neb. 900, 902, 291 N.W. 687, 688 (1940).

[136]  Cf. id. (explaining that the purpose of the injunction is to prevent a future wrong).

[137] See Mahmood v. Mahmud, 279 Neb. at 398, 778 N.W.2d at 433 (holding that at protection order hearings, at a minimum, testimony must be under oath and documents must be admitted into evidence before being considered).