In many cases, a judge will grant a personal protection order (PPO) on an ex parte basis, meaning that the petitioner alleged enough exigent circumstances to have a court order granted without any oral or written notice to the respondent. Upon being served with court papers, the respondent learns that his or her ability to own or possess a firearm is curtailed and that his or her name is listed on the law enforcement information network (LEIN). Even worse, any violations of the order amount to criminal contempt of court punishable by up to 93 days in jail or a fine up to $500.00, or both. All of these restrictions come out of thin air without the respondent having the benefit of telling his or her side of the story to the judge. It comes as no surprise that the respondent's gut instinct would be to try and modify or terminate the PPO.
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. MCR 3.707(A)(1)(b). If the respondent let 14 days lapse before filing a motion, he or she must also show good cause why the court should hear the request after the delay. Upon the filing of a motion to modify or terminate, the court must schedule a hearing within 14 days. MCR 3.707(A)(2). However, the court must schedule the hearing within 5 days after the motion is filed if BOTH OF THE FOLLOWING ARE TRUE:
- The PPO prohibits the respondent from purchasing or possessing a firearm, and;
- The respondent is licensed to carry a concealed weapon as is required to carry a weapon as part of his or her employment as a police officer, sheriff, deputy sheriff, corrections officer, Michigan Department of Corrections employee or federal law enforcement officer.
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). Even though the petitioner already obtained the court order and did not file the objection, the law compels the petitioner to stand by his or her claims in the original PPO petition and produce legally admissible evidence in court. The standard of proof that the petitioner is held to depends on the type of PPO that was obtained ex parte.
If the petitioner acquired a domestic PPO under MCL 600.2950, he or she must prove BOTH of the following:
- The respondent is 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, or an individual residing or having resided in the same household as the petitioner, and;
- There was reasonable cause to believe the respondent engaged in ONE OR MORE of the following acts listed in MCL 600.2950(1):
- (a) Entering onto premises, UNLESS ALL of the following conditions under MCL 600.2950(5) exist:
- (i) The respondent is not the spouse of the moving party.
- (ii) The respondent or the parent, guardian, or custodian of the minor to be restrained or enjoined has a property interest in the premises.
- (iii) 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.
It should be noted that "reasonable cause" is a very low burden of proof. Additionally, inn 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).
II. Terminating A Non-Domestic Stalking Personal Protection Order
- MCL 750.411h(d) (Stalking) - "[a] willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested."
- (1) "Course of conduct" means a pattern of conduct composed of a series of 2 or more separate noncontinuous acts evidencing a continuity of purpose. MCL 750.411h(a).
- (2) "Emotional distress" means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling. MCL 750.411h(b).
- (3) "Harassment" means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose. MCL 750.411h(c).
- (4) "Unconsented contact" means any contact with another individual that is initiated or continued without that individual's consent or in disregard of that individual's expressed desire that the contact be avoided or discontinued. MCL 750.411h(e). Unconsented contact includes, but is not limited to, any of the following:
- (i) Following or appearing within the sight of that individual.
- (ii) Approaching or confronting that individual in a public place or on private property.
- (iii) Appearing at that individual's workplace or residence.
- (iv) Entering onto or remaining on property owned, leased, or occupied by that individual.
- (v) Contacting that individual by telephone.
- (vi) Sending mail or electronic communications to that individual.
- (vii) Placing an object on, or delivering an object to, property owned, leased, or occupied by that individual.
- (5) "Victim" means an individual who is the target of a willful course of conduct involving repeated or continuing harassment. MCL 750.411(f).
- MCL 750.411i(2) (Aggravated Stalking) - Engaging in stalking as defined in MCL 750.411h but the violation includes ANY of the following circumstances:
- (a) At least 1 of the actions constituting the offense is in violation of a restraining order and the individual has received actual notice of that restraining order or at least 1 of the actions is in violation of an injunction or preliminary injunction.
- (b) At least 1 of the actions constituting the offense is in violation of a condition of probation, a condition of parole, a condition of pretrial release, or a condition of release on bond pending appeal.
- (c) The course of conduct includes the making of 1 or more credible threats against the victim, a member of the victim's family, or another individual living in the same household as the victim.
- (d) The individual has been previously convicted of a violation of aggravated stalking or stalking. "Credible threat" means a threat to kill another individual or a threat to inflict physical injury upon another individual that is made in any manner or in any context that causes the individual hearing or receiving the threat to reasonably fear for his or her safety or the safety of another individual. MCL 750.411i(1)b).
- MCL 750.411s(1) (Cyberstalking) - A person shall not post a message through the use of any medium of communication, including the internet or a computer, computer program, computer system, or computer network, or other electronic medium of communication, without the victim's consent, if ALL of the following apply:
- (a) The person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact with the victim.
- (b) Posting the message is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested.
- (c) Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
- (d) Conduct arising from posting the message causes the victim to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
Any form of stalking under Michigan requires proof of AT LEAST TWO separate, noncontinuous acts where the respondent made the petitioner feel terrorized, frightened, intimidated, threatened, harassed, or molested. If the petitioner is only able to establish one incident with credible and admissible evidence, then the ex parte PPO should be terminated. Please note that an actual criminal conviction for stalking, aggravated stalking or cyberstalking is not required for the petitioner to prove his or her case.
III. Terminating a Non-Domestic Sexual Assault Personal Protection Oorder
If the petitioner acquired a non-domestic sexual assault PPO under MCL 600.2950a, he or she must prove that the respondent engaged in EITHER OF THE FOLLOWING:
- "[T]he respondent has been convicted of a sexual assault of the petitioner or that the respondent was convicted of furnishing obscene material to the petitioner under section 142 of the Michigan penal code, 1931 PA 328, MCL 750.142, or a substantially similar law of the United States, another state, or a foreign country or tribal or military law." MCL 600.2950a(2)(a).
- "The petitioner has been subjected to, threatened with, or placed in reasonable apprehension of sexual assault by the individual to be enjoined. A court shall not grant relief under this subdivision unless the petition alleges facts that demonstrate that the respondent has perpetrated or threatened sexual assault against the petitioner. Evidence that a respondent has furnished obscene material to a minor petitioner is evidence that the respondent has threatened sexual assault against the petitioner. Relief may be sought and granted under this subdivision regardless of whether the individual to be restrained or enjoined has been charged with or convicted of sexual assault or an offense under section 142 of the Michigan penal code, 1931 PA 328, MCL 750.142, or a substantially similar law of the United States, another state, or a foreign country or tribal or military law." MCL 600.2950a(2)(b).
Please remember that personal protection order hearings are civil matters, not criminal matters, so the burden of proof is different. If the prosecuting attorney was bringing charges of sexual assault or distributing obscene material against the respondent, then he or she would have to prove guilt beyond a reasonable doubt. However, the petitioner only needs to show that the respondent committed these acts by the much lower preponderance of the evidence standard, meaning that judge only has to believe that it was more than likely these acts were committed.
IV. Circumstances Where Any Personal Protection Order Must Be Terminated
There are specific circumstances that the respondent can show where the judge MUST terminate the PPO:
- The respondent is the unemancipated minor child of the petitioner.
- The petitioner is the unemancipated minor child of the respondent.
- The respondent is a minor child less than 10 years of age.
- The petitioner is a prisoner.
V. Petitioner's Right To Modify, Extend Or Terminate Personal Protection Order
Unlike the respondent, the petitioner has the right to file a motion to modify or terminate the PPO and request a hearing at any time after the PPO is issued. MCR 3.707(A)(1)(a). The judge will not automatically terminate the PPO just because the petitioner asks for it. Courts are well aware of the cycles of domestic violence and will not allow judicial resources to be wasted because the petitioner waffles between the desire to be protected and the desire to be with the respondent. Most judges will insist on an evidentiary showing that the respondent is truly not a danger.
Additionally, the petitioner has the right to file an ex parte motion to extend the effectiveness and duration of the PPO without a hearing by requesting a new expiration date. This motion must be filed no later than 3 days before the current PPO expires. MCR 3.707(B)(1). However, the petitioner's failure to timely file a motion to extend the PPO does not preclude the petitioner from commencing a new PPO action regarding the same respondent.
If you are a petitioner or respondent contemplating the extension, modification or termination of a personal protection order, then you could benefit from the advice of an experienced PPO lawyer. For the best resolution of your legal matter, do not hesitate to contact the skilled attorneys at Kershaw, Vititoe & Jedinak PLC today.