restraining orderEmotions and therefore tempers often boil-over in high-conflict divorce or custody proceedings. This is especially true when a spouse or partner is poorly equipped to control their behavior toward the other person in a relationship. Often, this can lead to violence and abuse.

Fortunately, the Michigan Legislature long ago passed personal protection legislation designed to get control of such situations. Any person can petition for injunctive relief from any other person in any county of the state, regardless of the location of the petitioner’s residence. Also, the PPO is the sole exception to the administrative principle that a court clerk cannot provide legal advice: all county family courts have staff trained to assist petitioners in the completion of the necessary paperwork.

The PPO statute sets forth the criteria under which a family court may exercise its discretion to issue a protective order, or injunction. Under that criteria, a court must issue a protective order if it determines there is reasonable cause to believe a person will commit one or more of a long list of acts, which include:

  • entering onto property where the petitioner resides;
  • assaulting, attacking, molesting, beating, or wounding an individual;
  • threatening to kill or injure an individual;
  • stalking, aggravated stalking, or cyber=stalking the petitioner;
  • committing any other act that imposes upon or interferes with the petitioner’s personal liberty;
  • interfering with the petitioner at the petitioner’s place of employment;
  • interfering with the petitioner’s effort to remove minor children over whom the petitioner has legal custody, among other conduct.

Our law firm assists persons that suffer from any of the above-referenced abusive conduct by drafting a petition for a personal protection order. Once filed with the court, the petition is immediately assigned to a judge who then makes an assessment of the allegations contained in the petition and decides whether to issue a protective order.

If the judge is persuaded to issue the order, then it must be served on the respondent and entered into LEIN [Law Enforcement Information Network]. When the order is served on the respondent, it is required to contain language advising the respondent of his or her right to contest the allegations within 14-days and to schedule a hearing on the allegations. The reason for the short timeline is that the protective order is issued on an ex parte basis, meaning that it is issued by the judge without notice or input from the respondent. The law allows this in the PPO context in order to neutralize a potentially dangerous situation. Then, once so neutralized by the issuance of a temporary injunction, the merits of the allegations can be tested in court.

Having a lawyer to assist with this process, whether as a petitioner or as a respondent, is quite useful and highly advisable. This is particularly true when a PPO is issued within the context of ongoing, or contemplated divorce or custody proceedings.

Generally, if a PPO will affect a respondent’s parenting or custody rights, the applicable court rule requires the issuing court to make a balancing determination between the rights of the parent-respondent and the safety of the minor children. If certain conditions are placed in the order that affect the respondent’s contact with his or her children, the PPO supersedes any prior family court order to the contrary.

It is important to remember that, like family court orders involving contact with minor children, a PPO is not permanent; it can be modified, extended or terminated based on subsequent circumstances. Sometimes, when a volatile situation is brought under control in a closely contested PPO proceeding, one frequent compromise is that the parties will agree on a mutual restraining order. This order applies to both parties to a dispute, is entered in a divorce or custody case, but is not entered into LEIN and does not compromise the parties’ freedoms as much as a PPO.

Domestic violence is common in the family law. Much has been written about the “cycle of violence” that unfortunately occurs in many households. Often, the victims do not stand up for their rights or their dignity but rather, simply endure and try to survive. Bringing the situation into open court, while having the immediate effect of modifying the abuser’s conduct, does not always work in the long term.

The pie chart below suggests how a perpetrator of domestic violence uses power and control to develop an abusive relationship which tends to escalate over time. The PPO is a method designed to break or arrest this escalation. Filing a PPO is a big step, not to be taken lightly. Although it is just a piece of paper, it is backed by the local circuit court that issues the injunction and is enforceable by local law enforcement.

Domestic Abuse Intervention Project's  Violence Wheel

Domestic Abuse Intervention Project’s
Violence Wheel

Domestic violence is defined in Michigan law as the occurrence of any of the following acts, provided the act is not taken in self defense:

  • Causing physical or mental harm to a family or household member;
  • Placing a family or household member in fear of physical or mental harm;
  • Causing a family or household member to engage in unwanted sexual activity through force, threats or duress; and
  • Engaging in an activity toward a family or household member that would cause a reasonable person to feel intimidated, terrorized, threatened, frightened, harassed or molested.

Further, the law defines a family or household member to include any of the following individuals: a spouse, former spouse, a person with whom the person has a dating or sexual relationship, and an individual with whom the person has a child in common, and an individual to whom the person is or was related by marriage.

If you are a victim of domestic violence, we strongly encourage to seek professional help on a variety of fronts: assaults should be reported to local law enforcement; once the situation is brought under control, contact with a therapist to work through tough issues is advisable. Finally, if you are in an abusive marriage, or have minor children with an abusive person, consider contacting a family law professional to discuss your options.