These instructions and forms are a product of the Nebraska Supreme Court Committee on Self-Represented Litigation and are provided as a public service to people who want to do their own cases.
NOTE: THE SUPREME COURT DOES NOT REPRESENT THAT THESE INSTRUCTIONS AND FORMS WILL BE APPROPRIATE IN YOUR CASE. ANY QUESTIONS YOU MAY HAVE REGARDING THE USE OF THE INSTRUCTIONS AND FORMS SHOULD BE DIRECTED TO A LAWYER.
Although these instructions and forms were developed to assist people who want to do their own cases, the Supreme Court's Committee onSelf-Represented Litigation urges everyone thinking of doing their own case to consider getting a lawyer to help them.
Each District Court has specific local rules that may apply in your case. Check with the Clerk of the District Court in your county. If you fail to follow the local rules, you may not be able to finish your case.
When this Pleading is Used
An action to enforce court orders is called a contempt action. You are asking the judge to hold in contempt the person who is not obeying the court order. If you are successful in showing that the person willfully disobeyed the court order, the judge can put the person in jail until that person has followed a plan to "purge" himself or herself from the contempt. For example, if a person has not followed an order for visitation, the judge can hold the person in contempt, sentence the person to jail, and then give the person a chance to stay out of jail and obey the order by following a visitation schedule set by the judge.
Enforcement proceedings can be complicated. It is up to you to decide whether and how you use a lawyer in enforcing orders already entered by the court. The law allows you to do enforcement actions by yourself, which is also known as proceeding pro se (pronounced "pro-say").
Because a contempt action could result in the other person being put in jail, the Court is required to appoint a lawyer to represent the person if the Court is convinced the person is poor and cannot afford to hire a lawyer. The Court cannot appoint a lawyer for you, however. If the Court appoints a lawyer for the other side, that will make it much harder for you to do the case by yourself, so it is important for you to think carefully about whether you should try to enforce the court order without using a lawyer.
This packet of forms and instructions is intended only for divorce, legal separation, paternity, or other child support cases where a person who has custody of the child(ren) refuses to allow visitation that was ordered by the court, and the person with the visitation rights is trying to enforce the order.
Forms and Filing
Complete list of forms and instructions.
Filing the Forms
You must take with you to the Clerk of the District Court where the visitation order was issued the following:
- Affidavit and Application for Order to Show Cause (DC 6:5(27)):
This is the first document you must give to the Clerk of the District Court. Please refer to the Instructions for Filling Out the Affidavit and Application for Order to Show Cause (DC 6:5(27a))for details on how to fill out the Affidavit and Application for Order to Show Cause.
- Proposed Order to Show Cause (DC 6:5(28)):
When you file your Affidavit and Application for Order to Show Cause, you should also take with you the proposed Order to Show Cause. You will have to file the Affidavit and Application with the Clerk of the District Court. The Order to Show Cause and the filed-stamped Affidavit and Application must then be given to the judge for signing and setting a date for the contempt hearing. The Clerk will tell you whether you will need to give the papers to the judge's staff directly or whether the Clerk will do it. The Clerk can also tell you how to get a hearing date and time for the contempt hearing, since different courts have different procedures. If either party needs an interpreter for the court hearing, please tell this to the court staff at the time you schedule any hearing so that arrangements for an interpreter can be made. If the judge signs the Order to Show Cause, you will receive it back from the judge. You must then have it served on the person you believe has failed to follow the court's order for visitation.
- Fees for serving other party or papers asking the Court to waive service fees:
There is no filing fee to file the Affidavit and Application for Order to Show Cause with the Clerk of the District Court, but there will be a cost to have the papers served on the other party by the sheriff. If you cannot afford to pay the sheriff's costs for serving the papers because you have a very low income, you can ask the judge to have the county pay those costs. See the packet entitled "Proceeding Without Payment of Fees in Contempt Actions," which has forms and instructions to help you ask the judge to waive the fees and have the county pay those costs.
Giving Notice of the Contempt Action to the Other Party (Praecipe, DC 6:5(29))
If the judge signs the Order to Show Cause, you must give formal notice to the other party – the party you believe has not followed the court order. This formal notice is called "service" or "service of process." The Order to Show Cause must be personally served on the person you are saying is not obeying a court order for visitation by having the sheriff hand it to the other party.
NOTE: YOU MUST SERVE THE PERSON WHO YOU BELIEVE IS NOT OBEYING THE COURT ORDER BY HAVING THE SHERIFF GIVE TO THAT PERSON A COPY OF THE ORDER TO SHOW CAUSE.
Praecipe for Service
You must have the other party served by the sheriff in the county where that person lives. Here is the procedure.
- Prepare a Praecipe (DC 6:5(29)) (pronounced "pres-si-pee"), using the Instructions for Filling Out the Praecipe (DC 6:5(29a)).
- File the Praecipe with the Clerk of the District Court where you filed your original action. The Praecipe is a request to have the Order to Show Cause served on the person you believe is disobeying the court order.
- If the judge waived the service fees for you, be sure to attach a copy of the Order to Proceed in Forma Pauperis (DC 6:5(36)) (without payment of fees) signed by the judge so the county will pay the sheriff’s bill for serving the Order to Show Cause.
- You should list all addresses in the Praecipe where the sheriff might be able to find the other party, including that person's home and/or work addresses. If that party is usually at a location during certain hours, you can list that in the Praecipe.
Service in the Same County
If the person you are trying to serve is living or working in the county where you filed your enforcement action, the sheriff of that county will pick up the Order to Show Cause and serve it on the person you list in the Praecipe at the address you list in the Praecipe. The sheriff will then file papers with the court indicating that the person was served.
Service in a Different County or State
- If the person you are trying to serve lives or works in a different county in Nebraska or in a state other than Nebraska, you must pick up the signed Order to Show Cause from the Clerk once it is ready. (You can ask the Clerk when you bring in the proposed Order to Show Cause about how long it will take to have the order signed and the hearing date set.)
- Once you pick up the Order to Show Cause, find out the address and phone number of the sheriff’s office where you must mail the Order to Show Cause. (If you do not know the address or phone number of the sheriff’s office, the Clerk may be able to provide that to you. If the Clerk cannot provide it to you, you will have to find it on your own.)
- Before you mail the Order to Show Cause, call the sheriff’s office and discuss how they expect to be paid for serving the Order to Show Cause. Some out-of-county sheriffs and most out-of-state sheriffs want payment in advance.
- Once you make arrangements with the sheriff, mail the Order to Show Cause to the sheriff. Include a letter explaining to the sheriff that the Order to Show Cause must be personally handed to the person you are alleging disobeyed the court order.
- When the sheriff serves the person or if the sheriff is unable to serve the person, the sheriff will return documents to you with a "return of service." The return of service will indicate whether or not the person was served. You must file all of this paperwork with the court, even if the person was not served.
- If the other party is not served by the time of the hearing, you should still show up for the hearing. However, the judge may have to dismiss the case or set the hearing for another time.
What Happens After You Give Notice to the Other Party
You must appear in court on the date and at the time indicated in the Order to Show Cause.
Preparing for the Hearing
Once you are given a hearing date and time, prepare what you are going to say in court. A sample of what you might say in court is included in this packet and entitled "Instructions for Your Enforcement Hearing" (DC 6:5(3)). It’s okay to write out what you want to say ahead of time and read it when you go to court. Practice what you want to say so that you won’t be too nervous when you go to court.
If you are trying to enforce an order for visitation, you must be prepared to present examples to the judge of why you believe you were wrongfully denied the visitation ordered by the court.
You must go to the hearing and testify (talk under oath) in open court about why you believe the person you are filing against has not followed the court order. Once you have testified, the judge will decide if the person is in contempt of court for failing to obey the court's order for visitation. If the judge finds that person is in contempt, the judge will sentence that person to a jail sentence and then give him or her a chance to avoid jail by following a purge plan. A purge plan allows the person to correct the behavior that caused the contempt. For example, if the person is held in contempt for failing to allow visitation, the judge could give the person a chance to comply with the order by following a visitation schedule set by the judge.
If the other side shows up at the hearing, the Court will ask him or her if he or she has a lawyer. If the other side does not have a lawyer, the Court will ask him or her if he or she would like the Court to appoint a lawyer to help. If the person says yes, and if the Court decides that the person is poor, the Court will appoint a lawyer to help the person and will put off the hearing for another day.
What Happens if a Party Fails to Follow the Purge Plan
If the person who is found in contempt of court fails to allow visitation as ordered in the purge plan, you may file papers requesting that he or she be sent to jail to serve the sentence ordered by the Court at the contempt hearing.
You must take with you to the Clerk of the District Court where the visitation order was issued the following:
- Affidavit and Motion for Bench Warrant and Commitment to Issue (DC 6:5(32))
- Bench Warrant (DC 6:5(33))
Affidavit and Motion for Bench Warrant and Commitment to Issue
You must complete this document. Please refer to the Instructions for Filling Out Affidavit and Motion for Bench Warrant and Commitment to Issue (DC 6:5(32a)) for details on how to fill out the Affidavit and Motion.
- You must complete a proposed Bench Warrant. Please refer to the Instructions for Filling Out Bench Warrant (DC 6:5(33a))
- When you file your Affidavit and Motion, you should also take with you the proposed Bench Warrant. It will be necessary for you to have the Affidavit and Motion filed with the Clerk of the District Court. The Affidavit and Motion and the proposed Bench Warrant must then be given to the judge for signing. The Clerk will tell you whether you will need to give the papers to the judge’s staff directly or whether the Clerk will do it. You should also ask the Clerk if the judge’s staff or the Clerk will give the Bench Warrant to the sheriff for service or if you have to do anything else. You can check with the Clerk’s office in a few days to see if the Bench Warrant was served.