Enforcement of Visitation Orders

Enforcement of Visitation Orders

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").  Another option is to hire a lawyer to do only part of your case.  This is called Limited Scope Representation.  To find out more about Limited Scope Representation click on this link, or here http://nefindalawyer.com/.

Because a contempt action could result in the other person being put in jail, the court may 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

Forms

Complete list of forms and instructions.

Filing the Forms

You must file the following with the clerk of the district court where the visitation order was issued:

Individuals that do not have an attorney may file documents with the court in person, by mail, or by fax transmission. (Neb. Ct. R. § 6-601(B), allows non-attorneys to file any pleading, motion or other document, except for briefs in the appellate courts, by fax transmission until May 1, 2025.)

If you want to fax a court document, you must include the uniform cover sheet as the first page.  The fax must be less than 10 pages not counting the cover sheet.  If you want to fax more than 10 pages, you must get approval from the clerk of the court before you send it. 

 

  • The Affidavit and Application for Order to Show Cause (DC 6:5.27) is the first document you must give to the clerk of the district court. Please refer to the Instructions for Completing 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 6:5.21).  When you file your Affidavit and Application for Order to Show Cause, you should also submit the proposed Order to Show Cause. Please refer to the Instructions for Completing the Order to Show Cause (DC 6:5.21a). 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

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 "official" notice is called "service of process." 

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:  The Praecipe is a request that the court have the Order to Show Cause served on the person you believe is disobeying the court order for visitation.
    • You must have the other party served by the sheriff in the county where that person lives.

When you live in the same county as the other party, here is how you do it:

  • Follow these Instructions for Completing the Praecipe (DC 6:5.22a) (pronounced "pres-si-pee"),
  • File the Praecipe with the clerk of the district court where you filed your original action.
  • Call the clerk or local sheriff to find out how much it costs to have the sheriff serve the other party. Take the payment (money order, check, cash) required, made out to the sheriff, with you when you file the Praecipe.
    • If the judge waived the service fees for you, be sure to attach a copy of the Order to Proceed in Forma Pauperis (DC 6:72) (without payment of fees) signed by the judge so the county will pay the sheriff’s bill for serving the Order to Show Cause.
  • The clerk will send the Order to Show Cause and money order to the sheriff. The sheriff will try to serve the other party with the Order to Show Cause.
    • This is an example where each district court may have specific local rules. Check with the clerk of the district court in your county to be sure this is the way the county that you filed in gives the Order to Show Cause to the sheriff.
  • The Order to Show Cause tells the other party when to appear in court to show why they should not be held in contempt for disobeying the court order previously entered for visitation. 
  • 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.
  • If the judge granted your Application to Proceed In Forma Pauperis, attach a copy of that Order to the Praecipe.

Does it make a difference if the other party and I live in different counties?

If you are asking the sheriff to serve the other party, the answer is “yes.”

If the other party lives or works in a different county in Nebraska or in a state other than Nebraska, here is what you do:

  • 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. 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.
  • 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 for county where the other party lives.
    • Find out how much it costs to serve the Order to Show Cause.
    • Find out how to pay the sheriff for serving the Order to Show Cause.  Some out-of-county sheriffs and most out-of-state sheriffs want payment in advance.
    • If the court approved the Application to Proceed in Forma Pauperis, ask the sheriff's office if they will serve the papers without payment in advance.
  • You will mail the Order to Show Cause to the sheriff for the county where the other party lives.
    • Include a letter explaining to the sheriff that the Order to Show Cause must be personally served on (handed to) the person you are alleging disobeyed the court order for visitation.
  • 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 6:5.30)". 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.

The Hearing

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 file the following with the clerk of the district court where the visitation order was issued:

Affidavit and Motion for Bench Warrant and Commitment to Issue

You must complete this document.  Please refer to the Instructions for Completing the 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.

Bench Warrant

  • You must complete a proposed Bench Warrant.  Please refer to the Instructions for Completing the Bench Warrant (DC 6:5.33a) 
  • When you file your Affidavit and Motion, you should also submit 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.