In Michigan, there are three types of personal protection orders (PPOs) that can be granted by the circuit court:
- Domestic PPO
- Non-Domestic Stalking PPO
- Non-Domestic Sexual Assault PPO
This article will explicitly discuss how to obtain a Domestic PPO, which is intend to prevent another person (the "respondent") from engaging in behavior that threatens to harm or restricts the personal liberty of the person applying for this PPO (the "petitioner") due to an existing domestic relationship. If the Domestic PPO is granted, the judge may enter a court order restraining or enjoining the respondent from engaging in any of the following activities listed in MCL 600.2950(1):
- (a) Entering onto premises, UNLESS ALL of the following conditions under MCL 600.2950(5) exist:
- The respondent is not the spouse of the moving party.
- The respondent or the parent, guardian, or custodian of the minor to be restrained or enjoined has a property interest in the premises.
- The petitioner or the parent, guardian, or custodian of a minor petitioner has no property interest in the premises.
- (b) Assaulting, attacking, beating, molesting, or wounding a named individual.
- (c) Threatening to kill or physically injure a named individual.
- (d) Removing minor children from the individual having legal custody of the children, except as otherwise authorized by a custody or parenting time order issued by a court of competent jurisdiction.
- (e) Purchasing or possessing a firearm.
- (f) Interfering with petitioner's efforts to remove petitioner's children or personal property from premises that are solely owned or leased by the individual to be restrained or enjoined.
- (g) Interfering with petitioner at petitioner's place of employment or education or engaging in conduct that impairs petitioner's employment or educational relationship or environment.
- (h) If the petitioner is a minor who has been the victim of sexual assault, as that term is defined in section 2950a, by the respondent and if the petitioner is enrolled in a public or nonpublic school that operates any of grades K to 12, attending school in the same building as the petitioner.
- (i) Having access to information in records concerning a minor child of both petitioner and respondent that will inform respondent about the address or telephone number of petitioner and petitioner's minor child or about petitioner's employment address.
- (j) Engaging in conduct that is prohibited under MCL 750.411h (stalking) or MCL.750.411i (aggravated stalking) of the Michigan Penal Code.
- (k) Any of the following with the intent to cause the petitioner mental distress or to exert control over the petitioner with respect to an animal in which the petitioner has an ownership interest:
- (i) Injuring, killing, torturing, neglecting, or threatening to injure, kill, torture, or neglect the animal.
- (ii) Removing the animal from the petitioner's possession.
- (iii) Retaining or obtaining possession of the animal.
- (l) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.
The circuit court shall issue a domestic PPO if it determines that there is reasonable cause to believe that the respondent may commit one or more of the acts listed under MCL 600.2950(1). MCL 600.2950(4). "Reasonable cause" is a very low burden of proof to satisfy. In determining reasonable cause, the court considers all of the following:
- Testimony, documents, or other evidence offered in support of the request for a personal protection order. MCL 600.2950(4)(a).
- Whether the individual to be restrained or enjoined has previously committed or threatened to commit 1 or more of the acts listed in MCL 600.2950(1). MCL 600.2950(4)(b).
A domestic PPO can ONLY be granted if the respondent is one or more of the following:
- A spouse or former spouse of the petitioner.
- An individual with whom the petitioner has a child in common.
- An individual with whom the petitioner had a dating relationship.
- An individual residing or having resided in the same household as the petitioner.
However, a domestic PPO can NOT be granted under any of the following circumstances:
- The respondent is the unemancipated minor child of the petitioner. MCL 600.2950(26)(a).
- The petitioner is the unemancipated minor child of the respondent. MCL 600.2950(26)(b).
- The respondent is a minor child less than 10 years of age. MCL 600.2950(26)(c).
If there is not an applicable domestic relationship with the respondent, then the petitioner may have to consider applying for a Non-Domestic Stalking PPO or a Non-Domestic Sexual Assault PPO. However, the burden of proof to obtain the other PPOs is much higher and does not necessarily enjoin and protect from all the same conduct as the domestic PPO does.
A PPO action is an independent court action initiated by filing a petition with the circuit court. There are no fees for filing a PPO action and no summons is issued. A PPO cannot be commenced by filing a motion in an existing case (e.g. divorce or child custody court file) or by joining a claim to an action. MCR 3.703(A).
A petitioner can, and often does, request that a PPO be issued ex parte without any oral or written notice to the respondent or his or her attorney. The court must rule on a request for an ex parte order within 24 hours of the filing of the petition. MCR 3.705(A)(1). The court shall grant the PPO ex parte if, in addition to reasonable cause, the petitioner shows "that immediate and irreparable injury, loss or damage will result from the delay required to effectuate notice or that the notice will itself precipitate adverse action before a [PPO] can be issued." MCL 600.2950(12). "In cases which an ex parte order is sought, the petitioner must show that the danger is imminent and that the delay to notify the respondent is tolerable or in itself dangerous." Kampf v Kampf, 237 Mich App 377; 603 NW2d 295 (1999). If the court refuses to enter the PPO ex parte, then it must advise the petitioner of the right to request a hearing. MCR 3.705(A)(5). If an ex parte PPO is granted, it is valid for not less than 182 days and must state an expiration date. MCL 600.2950(13); MCR 3.705(A)(3).
Upon an ex parte order being granted, the petitioner must serve the petition and order upon the respondent. The petitioner's failure to serve the order does not affect its validity or effectiveness. MCR 3.705(A)(4). "A personal protection order is effective and immediately enforceable anywhere in this state after being signed by a judge, [and], [u]pon service, a personal protection order may also be enforced by another state, an Indian tribe, or a territory of the United States." MCL 600.2950(9). However, the respondent cannot be penalized for PPO violations, and the order cannot be entered into the law enforcement information network (LEIN), until the PPO order is actually served. MCL 600.2950(22). Upon effective service, failure of the respondent to immediately comply with the order subjects him or her to immediate arrest.
The court is prohibited from issuing a mutual PPO for both parties. Either party has the burden of filing their own PPO and having the judge consider each one individually on its own merits. MCL 600.2950(8).
Whether contemplating an ex parte order or making a decision after a hearing, the judge cannot refuse to issue a personal protection order solely because of the absence of a police report, medical report, a report or finding of an administrative agency or physical signs of abuse or violence. MCL 600.2950(6). "If the court refuses to grant a personal protection order, it shall state immediately in writing the specific reasons it refused to issue a personal protection order. If a hearing is held, the court shall also immediately state on the record the specific reasons it refuses to issue a personal protection order." MCL 600.2950(7).
If the respondent violates any of the terms of the PPO, he or she is subject to immediate arrest and the full civil and criminal contempt powers of the court. If found guilty of criminal contempt, the respondent could be punished by up to 93 days in jail or a fine up to $500.00, or both. MCL 600.2950(23).
The respondent may file a motion to modify or terminate the PPO within 14 days of being served with the ex parte order or receiving actual notice of the order (if 14 days has lapsed, the respondent must also show good cause). MCL 600.2950(13); MCR 3.707(A)(1)(b). Upon the filing of a motion to modify or terminate, the court must schedule a hearing within 14 days. MCL 600.2950(14); MCR 3.707(A)(2). At a hearing on a motion to modify or terminate the PPO, the petitioner has the burden of justifying the continuation of a PPO that was granted ex parte. MCR 3.310(B)(5); Pickering v Pickering, 253 Mich App 694, 698-699; 659 NW2d 649 (2002).
It is not uncommon for PPOs to be filed during divorce or child custody actions, whether the motivation is to curtail actual inappropriate behavior or to try to gain an advantage in the companion case. Legal restrictions on contact between parents can create substantial complications for exercising parenting time and participating in legal custody decisions. A judge, prior to issuing the PPO, has a duty to communicate with the other judge presiding over the family court case to collaborate and consider a solution that does not adversely affect the children. Due to the potential for abuse, judges are reluctant to grant ex parte domestic PPOs during family court proceedings and will often delay making a decision until the trial in that matter.
Respondents feel that they have been deprived due process rights since a judge will often grant an ex parte order solely on the word of the petitioner. Despite the lack of initial notice, appellate courts have upheld the PPO statutes as constitutional. An active PPO restricts the ability of the respondent to own or possess a gun. Furthermore, if the respondent is already on probation or parole, a PPO violation can trigger violation proceedings in the criminal case. A record of the PPO will remain on LEIN, even after the original order has lapsed. Respondents often have nothing to lose by attempting to terminate the PPO, but they have a very short period of time to make the decision and file the appropriate pleadings.
If you are contemplating applying for a personal protection order, or you are a respondent looking to terminate an existing PPO, then you could benefit from the advice of an experienced PPO lawyer to guide the way. For the best legal assistance, do not hesitate to contact the skilled attorneys at Kershaw, Vititoe & Jedinak PLC today.