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PPO UNIVERSITY. Today’s Course PPO 201 : Petitioning for a PPO January 28, 2013 Future Courses PPO 301 : Managing a PPO After Issuance PPO 401 : PPO Violations PPO 1001 : Graduate Seminar - Advanced Problems. PPO UNIVERSITY. Today’s Course PPO 201 : Petitioning for a PPO

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PPO UNIVERSITY

Today’s Course

PPO 201: Petitioning for a PPO

January 28, 2013

Future Courses

PPO 301: Managing a PPO After Issuance

PPO 401: PPO Violations

PPO 1001: Graduate Seminar - Advanced Problems


PPO UNIVERSITY

Today’s Course

PPO 201: Petitioning for a PPO

January 28, 2013

Future Courses

PPO 301: Managing a PPO After Issuance

PPO 401: PPO Violations

PPO 1001: Graduate Seminar - Advanced Problems


Session Overview

  • Where to file a PPO

  • Understanding the PPO forms

  • Meeting the standards for issuance of each type

  • Getting ex parte relief

  • What if the PPO is denied?


Recap – PPO 101

3 Kinds of PPO - 2 Statutes

Domestic relationship (MCL 600.2950)

Restrains a person from threatening or violent acts (including sexual assault and stalking) against a domestic partner.

Non-domestic stalking(MCL 600.2950a(1)) - Restrains someone from:

  • stalking any other person, and/or

  • posting a message intended to cause others to contact any other person in a way that makes the other person feel terrorized, frightened, intimidated, threatened, harassed, or molested.

    Non-domestic sexual assault (MCL 600.2950a(2)-(4))

    Restrains someone who has committed or threatened sexual assault against any other person from threatening or violent acts against that person, including sexual assault and stalking.


Where are PPOs Filed?

  • In the family division of circuit court:

    • The court clerk’s office

    • A separate PPO office

    • Which county?

      • If the respondent is an adult, petitioner may file in any county, regardless of where she lives.

      • If the respondent is a minor, petitioner may file in either petitioner’s or respondent’s county of residence.

        MCR 3.703(E)


More on Filing:

  • A PPO proceeding is a new action.

  • It begins by filing a petition.

  • Do not file it in an existing case.

    • There are no filing fees or motion fees.

      MCR 3.703(A)


  • Understanding the Forms

    Use the correct petition and order:

    • Is respondent an adult or minor?

      • Minors are between 10 and 17 years old.

    • Do the parties have a domestic relationship?

    • What acts has respondent committed?

  • Use the domestic relationship forms if:

    • Domestic relationship between the parties

    • Threatening or violent acts have occurred


  • Understanding the Forms…

    • Use the non-domestic stalking forms if:

      • No domestic relationship

      • Stalking or electronic posting has occurred

    • Use the non-domestic sexual assault forms if:

      • No domestic relationship

      • Respondent convicted of sexually assaulting petitioner

      • Petitioner subjected to or threatened with sexual assault, or

      • Respondent convicted of furnishing, or has furnished, obscene materials to minor petitioner


    Completing the Petition

    • Petitioner’s and respondent’s name and address.

      • Petitioner may omit her residential address, but must provide a mailing address.

    • Whether respondent is required to carry a firearm for employment.

    • Pending or completed actions or orders involving the parties, in MI or another state:

      • Divorce, custody, support, paternity, criminal, other PPOs.

    • Why a PPO is needed.

    • The conduct to be prohibited.

    • Whether the request is ex parte and facts in support.

    • Signed by petitioner.

      • False statements subject petitioner to contempt.

        MCR 3.703; MCL 600.2950(3),(24), 2950a(6),(24)


    Completing the Petition: Minors

    In addition, a petition against a minor must include:

    • The minor's name, address, and age or date of birth.

    • If known or can be easily ascertained, the names and addresses of the minor's parent or parents, guardian, or custodian.

      A minor petitioner must include a “next friend” who must consent by signing the petition.

      MCR 3.703


    Completing the Order: Petitioner and the Court

    Petitioner should insert:

    • Name and address of petitioner and respondent.

    • Respondent’s race, sex and date of birth (for LEIN).

      The Court issuing the PPO will decide:

    • Whether the order is entered ex parte.

    • Whether respondent poses a credible threat to the physical safety of the petitioner and/or her child.

    • The conduct prohibited by the respondent.

    • The expiration date.

    • The law enforcement agency named to enter the PPO into LEIN.

      MCR 3.706


    Completing the Order: What is already included in the forms

    • The penalties for violation of the order.

    • That the order is effective and immediately enforceable anywhere in the state.

    • That upon service, the order may be enforced by another state, Indian tribe or U.S. territory.

    • For ex parte orders, that the respondent may file a motion to modify or rescind the order and request a hearing within 14 days after service or actual notice.

      MCR 3.706


    Standard for Issuance:Domestic Relationship PPO

    The court shall issue a PPO if it finds reasonable cause to believe that the respondent may commit one of the acts prohibited by the statute:

    • Entering onto premises.

    • Assaulting, attacking, beating, molesting, or wounding a named individual. (Includes sexual assault)

    • Threatening to kill or physically injure a named individual.

    • Removing minor children from the legal custodian.

    • Purchasing or possessing a firearm.

    • Interfering with efforts to remove children or property from respondent.

    • Interfering with petitioner’s employment or education.

    • Stalking.

      MCL 600.2950(4)


    Standard for Issuance:Domestic Relationship PPO

    What is “reasonable cause?”

    • The court must consider all of the following:

    • Testimony, documents, or other evidence offered in support of the PPO.

    • Whether the respondent has previously committed or threatened to commit one or more of the acts prohibited by the statute.

      MCL 600.2950(4)


    Standard for Issuance:Domestic Relationship PPO

    A court shall not refuse to issue a personal protection order solely because petitioner fails to produce:

    • Police report

    • Medical report

    • Report or finding of an administrative agency

    • Physical signs of abuse or violence.

      MCL 600.2950(6)


    Meeting the Standard for Issuance:Domestic Relationship PPO

    • Remember the standard:

      • Respondent has previously committed or threatened to commit one or more of the prohibited acts.

    • Show a pattern of past harm by including:

      • Specific dates and descriptions of incidents

      • Extent of injuries and whether medical treatment was needed

      • Extent of property damage

      • The explicit content of threats

      • Whether the children were present or in danger

      • Whether the police were involved


    Standard for Issuance:Non-Domestic Stalking PPO

    • The court shall not issue a PPO unless the petition alleges facts that show:

      • stalking, or

      • postingan electronic message without the petitioner’s consent

    • Stalking is:

      • A pattern of two or more unconsented acts

      • Showing a continuity of purpose

      • That makes a reasonable person afraid

      • That actually caused the petitioner to feel afraid

        MCL 600.2950a(1)


    Standard for Issuance:Non-Domestic Stalking PPO

    Compare to domestic relationship PPO:

    • The court shall issue a PPO if reasonable cause to believe the respondent might commit one of the acts prohibited by the statute.

      Non-domestic stalking PPO:

    • Does not include a “reasonable cause” standard.

    • Thus, a “preponderance of evidence” standard – it is more likely than not that respondent committed two or more acts of unconsented contact.

    • A higher standard of proof than reasonable cause.


    Meeting the Standard for Issuance:Non-Domestic Stalking PPO

    Remember the standard.

    • Allege facts that constitute stalking:

      • Describe at least 2 incidents of unconsented contacts.

      • Identify the dates of each and show how the contacts are related.

      • If the two incidents are far apart, describe how they similar or show a continuing purpose (similar threats).

      • Describe how the contacts made the petitioner feel frightened, intimidated, threatened or harassed.

    • Or that constitute posting an electronic message without petitioner’s consent.


    Meeting the Standard for Issuance:Non-Domestic Stalking PPO

    Unconsented contacts included, but are not limited to:

    • Following or appearing within petitioner’s sight

    • Approaching or confronting petitioner in public or on private property

    • Appearing at petitioner’s workplace or residence

    • Entering or remaining on property owned, leased, or occupied by petitioner

    • Contacting petitioner by telephone, mail or electronically

    • Placing or delivering an object to property owned, leased, or occupied by petitioner


    Standard for Issuance:Non-domestic Sexual Assault PPO

    Two circumstances for issuance:

    • The courtmustissue a PPO if respondent has been convicted of:

      • A sexual assault of petitioner, or

      • Furnishing obscene material to a minor petitioner

    • Absent a conviction, the court may issue only if petitioner shows that respondent has sexually assaulted or threatened to sexually assault petitioner.

    • “Preponderance of the evidence” standard.

    • Does not require two or more separate acts.

      MCL 600.2950a(2)


    Meeting the standard for Issuance:Non-domestic Sexual Assault PPO

    Where there is a conviction:

    • Provide the case number and court name for respondent’s conviction for:

      • Sexual assault, or

      • furnishing obscene to petitioner who is a minor

  • The conviction may be under Michigan law, or a similar law of the U.S., another state, a foreign country, or tribal or military law.


  • Meeting the standard for Issuance:Non-domestic Sexual Assault PPO

    Where there is no conviction, petitioner must state facts that show she has a reasonable apprehension of sexual assault by respondent:

    • Include specific dates and descriptions of incidents where respondent has sexually assaulted or threatened to sexually assault petitioner.

    • Describe any injuries and whether medical treatment was needed.

    • Describe the explicit content of threats.

    • Indicate whether the police were involved.


    Requesting an Ex Parte Order

    What is an “ex parte” order?

    • An order entered without advance notice to the other party and based only on court papers provided by the moving party.

      What is the standard?

    • The petition must include specific facts showing:

      • that immediate and irreparable injury, loss, or damage will result from the delay required to give notice; or

      • that the notice will precipitate adverse action before an order can be issued.

        MCR 3.703(G)


    Meeting the Standard for an Ex Parte Order

    • Most domestic violence, stalking and sexual assault survivors can meet this standard based on:

      • Recent, repeated acts of violence, assaults, stalking

      • Increase in frequency and severity of conduct

        Creates reasonable apprehension of violence so that

      • Immediate and irreparable injury will occur, or

      • notice will precipitate adverse action. If respondent learns of the PPO request in advance, he may retaliate with violence, threats or coercion to prevent petitioner from proceeding.


    Ex Parte Order: The Court’s Ruling

    • The court must rule on an ex parte request within 24 hours. But, there is no penalty for failure to do so.

    • The court must issue an ex parte PPO if the standard is met (immediate and irreparable injury or notice will precipitate adverse action).

    • If granted, the PPO must be valid for at least 182 days.

      MCR 3.705(A)


    What if the Court Denies the Request for an Ex Parte PPO?

    1. Petitioner may request a hearing.

    • When the court denies the ex parte order, it must:

      • state reasons in writing, and

      • advise the petitioner of the right to request a hearing.

    • Petitioner must request a hearing within 21 days of the date of the order denying the ex parte PPO.

    • If she fails to do so, the order denying the PPO is final.

      --OR--

      MCR 3.705(A)


    Ex Parte Order Denied…

    2. The case is dismissed.

    • The court does not have to give petitioner notice of the right to a hearing if:

      • The court interviews the petitioner, and

      • Determines that the claims have no merit and the case should be dismissed without a hearing.

        MCR 3.705(A)


    What if Petitioner Does Not Request Ex Parte Relief?

    Court must either:

    • Hold a hearing and decide whether to issue the PPO, or

    • Interview petitioner and decide that the claims have no merit and then deny the request.

      MCR 3.705(B); Lamkin v. Engram, 295 Mich App 701 (2012)


    If a Hearing is Held…

    • Petitioner must serve respondent with the petition and notice of hearing date (personally or certified mail to addressee).

    • If respondent is a minor, serve respondent’s parent/guardian if the address is known.

    • Service must occur at least one day before the hearing for a domestic relationship or stalking PPO; two days for a sexual assault PPO.

      MCR 3.705(B)


    What happens at a hearing?

    • If petitioner doesn’t appear, the court may:

      • Dismiss the petition, or

      • Reschedule the hearing

    • If respondent fails to appear, the court may grant the PPO anyway if it finds:

      • Petitioner made diligent efforts to serve respondent, and

      • Petitioner is entitled to the PPO.

    • At the end of the hearing, the court must:

      • Orally state reasons for granting/denying the PPO

      • State in writing the reasons for denying a PPO

      • State in writing the reasons for granting a stalking PPO

    • Friend of Court referees may hold hearings and issue recommended orders. Visser v Visser, __ Mich App __ (2012).


    Can the Court issue a PPO against both parties?

    NO!

    • A PPO may not be made mutual.

    • A PPO may only be issued to both parties if:

      • Each party files a separate petition

      • In separate cases

      • And states facts sufficient to support a PPO

        MCL 600.2950(8), 600.2950a(8); MCR 3.706(B).


    Can Petitioner Appeal a Denial?

    • The next highest court is the Court of Appeals.

    • Petitioner has the right to appeal when:

      • PPO is denied after a hearing requested by petitioner who’s ex parte request was denied.

      • PPO is denied after a hearing where petitioner did not request an ex parte order.

      • PPO is denied after hearing on respondent’s motion to modify or rescind an ex parte PPO.

    • In all other cases petitioner may ask the Court to accept the appeal.

      MCR 3.709


    Questions?

    Rebecca Shiemke

    Michigan Poverty Law Program

    [email protected]

    (734) 998-6100 ext. 127


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