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PPO UNIVERSITY

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

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  1. 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

  2. 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

  3. 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?

  4. 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.

  5. 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)

  6. 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)

  7. 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

  8. 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

  9. 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)

  10. 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

  11. 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

  12. 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

  13. 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)

  14. 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)

  15. 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)

  16. 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

  17. 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)

  18. 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.

  19. 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.

  20. 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

  21. 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)

  22. 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.

  23. 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.

  24. 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)

  25. 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.

  26. 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)

  27. 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)

  28. 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)

  29. 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)

  30. 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)

  31. 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).

  32. 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).

  33. 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

  34. Questions? Rebecca Shiemke Michigan Poverty Law Program rshiemke@lsscm.org (734) 998-6100 ext. 127

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