Restraining Order Defenses in Michigan
Personal protection orders (PPOs) or restraining orders are available in Michigan for those who fear harm from another individual. There are specific circumstances that dictate when a PPO can be issued as well as a process that is gone through before the PPO becomes valid. Those who have been served with a PPO will want to speak with a lawyer about the situation to learn more about what they can do to prevent the PPO from being in place or how to have the PPO modified or terminated, as needed.
The Basics of a PPO
A PPO can be obtained when someone is in fear of being harmed by the person the order is against. It is typically easy to obtain a PPO, though the person named in the PPO can defend against the charges within 14 days after it is issued. Often, protection orders arise when someone is fearful that they will be harmed by someone they have a relationship with, even though there is no current legal proceeding against either party. Restraining orders can also occur during a divorce case to protect a spouse or child or in the event that the defendant is accused of a crime and the person obtaining the PPO is the victim of the crime.
A PPO in Michigan typically lasts for six months after it is originally issued. It is possible within the month before the expiration for the person who obtained it to request that it be extended. They will need to do this after each extension if there is still a fear of harm. If the extension is not requested or not granted, the restraining order will lapse and no longer be valid.
The Process for Obtaining a PPO
To obtain a protection order, the person must file a petition in the county where they live. Once filed and stamped, the person can bring it to the court, where it will be reviewed by a judge. If there is a reasonable cause for the PPO to be necessary, the judge will sign the order. This can be done the same day, but it may take a few days, depending on the caseload in the courts at the time. The PPO is not valid without the judge’s signature. Once it has been picked up from the judge, the person the PPO is directed at will need to be served so they know there is a protection order against them.
The Burden of Proof for a PPO
The burden of proof for obtaining a PPO is low. There is no requirement for beyond a reasonable doubt or for there to be police records or criminal charges to obtain a PPO, just that there is reasonable cause to believe the person obtaining it is at risk of being hurt by the person the restraining order is against. Reasonable cause can be shown without police reports, medical reports, or other evidence of violence. However, the person obtaining it does need to provide some evidence that they are afraid the other person will be violent or harass them in the future and that protection is needed from that person.
What this means for those who are served an order is that the bar for proof is low, so the judge will likely approve the initial PPO. However, it is possible to have it dismissed at a hearing within 14 days of being served. The person obtaining the restraining order will need to show that they are fearful of violence or harassment, and if they cannot show this or the defendant successfully defends against the PPO, it can be dismissed.
Being Served and Requesting a Motion to Dismiss
Once a PPO is granted, it must be served to the defendant. The PPO is not valid until it has been served, that the police have received the order, and that it has been added to the Law Enforcement Information Network. Until all of this occurs, the person cannot be arrested for violating the protection order. The PPO can be served through the local law enforcement agency or by a process server, though there may be a fee for these services.
Once the defendant has been served, they have the opportunity to file a motion to modify or rescind. In doing this, they’ll request a hearing within 14 days from when the order is served. The motion to modify is a request to modify the terms of the personal protection order. It will be issued, but it might not have the same terms it had when it was initially requested. The motion to rescind is a request to the courts to dismiss the restraining order completely and, if granted, it will no longer be valid. If a hearing is requested, the person obtaining the restraining order must appear, otherwise, it will likely be dismissed.
Potential Impact of a PPO
It may not seem like a huge issue to be issued a restraining order by someone else, but it can have far-reaching impacts. If there is ever a violation, even if it’s inadvertent, the person the restraining order is against can be arrested and face jail time for the violation. Depending on the situation, the PPO may place restrictions on contacting not only the person who obtained it but children in common, as well. This could mean a reduction of visitation or loss of visitation. The restraining order can also prevent the ownership of firearms, be a factor in divorce or custody cases, or impact the defendant’s job, especially if they carry a gun due to their field. Even if the person has no intention of contacting the one who obtained the PPO, it is still in their interest to hire a lawyer and defend against the protection order.
What a PPO Typically Includes
The restraining order will include common restrictions. If the defendant violates these restrictions, they can be arrested. Some of the common conditions include being in the same location, contacting the person obtaining the order by phone, email, or other methods, showing up to the person’s work or home, interfering with the person’s ability to obtain a job or remain employed, and more. Restrictions can vary in cases where custody is a concern or have other conditions included if there are concerns that are not typical for restraining orders. These will all be valid from the time the paperwork is served to the time the order is modified to exclude the conditions or be dismissed completely.
Violations of the PPO
Just walking into an area where the other person is can be considered a violation of the order. The violation is not considered a criminal charge, as the PPO is a court order from a civil case. It is, instead, considered contempt of court. Even though it is not considered a criminal charge and is considered contempt of court, the defendant could face jail time as well as fines for the violation. Subsequent violations can result in more serious penalties and criminal charges can be brought alongside the PPO violation.
The Next Steps After Being Served
After being served, it’s imperative the defendant seek legal representation immediately and respond to the order within 14 days, requesting a hearing. If they agree to the PPO but want terms modified, this can be done at the hearing. If they do not agree to the PPO, this is the time to defend against it. A lawyer can help prove there is no basis for the order, that the order is not necessary, and that their client shouldn’t have an order of protection against them. It is up to the person requesting the protection order to prove that there is a valid reason for it to exist. If it is granted, it will be valid for up to six months from the initial date it was issued, though it can be extended further.
If you’ve been served with a protection order, now’s the time to take steps to fight the order in court. If this isn’t done, you may end up violating the order at some point, even if it isn’t intentional. Instead, speak with a lawyer today about the situation and learn more about what can be done to help protect you from the issues a PPO can cause if it is in place.
FAQs About Restraining Orders
Restraining orders or personal protection orders are generally obtained by someone who fears they will be injured or killed by another person. When someone is served with a restraining order, they will need to be careful about what they do next to avoid a violation. Before speaking with a lawyer, someone who has been served a protection order may have many questions, including the following.
What are the Types of Personal Protection Orders?
Personal protection orders are orders that can prevent threats, harassment, stalking, and other behaviors. The three main types are domestic relationship PPOs, non-domestic stalking PPOs, and non-domestic sexual assault PPOs. Different PPOs may be applicable depending on the accusations against the defendant and their relationship with the person obtaining the protection order.
Who Can Obtain a Protection Order?
Anyone can obtain a protection order if they are in fear of violence, threats of violence, harassment, stalking, and other dangerous behaviors. There is a burden of proof required for a restraining order to be initially issued, but the burden of proof is generally low, so it can be easy to obtain a protection order. It is up to the defendant to request a dismissal if there is not a valid reason for the order to exist.
Are Protection Orders Obtainable Outside of Domestic Relationships?
Yes. Domestic relationship PPOs are just one type of PPO available in Michigan. If someone is being stalked, they can request a non-domestic stalking PPO against the person they believe is following and stalking them. If someone is a victim of sexual assault, they can request a non-domestic sexual assault PPO. For the non-domestic stalking or sexual assault PPOs, it is not necessary to have a previous or existing relationship with the defendant.
Are All Protection Orders Approved Initially?
The majority of protection orders are initially approved by judges. The burden of proof is low for obtaining a protection order to ensure victims can obtain one when needed. However, a judge can refuse to issue the restraining order if they do not feel there is enough evidence that one is warranted. Just because it’s initially approved, however, does not mean a dismissal is impossible. If there is not enough evidence showing the order is warranted, the defendant can have it dismissed.
Can a Protection Order be Dismissed After 14 Days?
Defendants have to request a hearing with a motion to dismiss within 14 days of being served with the PPO. However, it is possible to request a dismissal after this period, as well. A lawyer can advise whether certain situations may allow for a motion to be heard by the courts after the 14-day limit and whether it’s likely the changes can mean the PPO will be dismissed.
Can I Lose Custody Due to a Restraining Order?
Depending on the reason for the restraining order, it is possible to lose custody. This coincides with other evidence that will be brought during custody hearings. A restraining order can temporarily end custody and visitation, and the defendant and the other parent will need to go to court to determine how custody and visitation will work with the restraining order in place.
Can I Still Have Visitation With a Restraining Order in Place?
Yes, it is possible to still have visitation with minor children when there is a restraining order in place. The visitation order and the restraining order may need to be modified to enable visitation. It may be that a third party is required to do the exchange for visitation or that the visitation is supervised while the protection order is in place. A lawyer can help defendants work to keep visitation with minor children if there is a restraining order.
Can Modifications be Allowed to Enable Communication About Children?
When there is a child in common, the person obtaining the order and the defendant may need a way to communicate about the child. In these cases, modifications can be made to facilitate the communication between the parents. It is imperative to follow the order carefully when communication is allowed and to keep everything in writing to avoid violating the order unintentionally. The judge overseeing the motion to modify or the child custody case can determine what communication is allowed by the parents to facilitate decision-making regarding the child or children.
How Long With the Order be In Place?
If the order is not dismissed due to a motion to dismiss from the defendant, it will be in place for six months. The person who obtains the restraining order may request an extension every six months. They will need to do this during the last month before it expires. If the extension is granted, the order will be in place for another six months. There can be exceptions to this, depending on the specific terms of the order.
What Should I Do If I’m Served?
If you’re served with an order of protection, the first step to take is to speak with a lawyer. It is crucial to read through the order and make sure you understand what you can and cannot do. A lawyer can answer any specific questions you might have about the restraining order as well as help you file a motion to modify or dismiss. They will also be able to help if you are accused of violating the restraining order at any time after it becomes valid.
Do I Need a Lawyer to Handle The Protection Order Motion to Modify or Dismiss?
A lawyer is not required to file a motion to modify or dismiss, but it is a good idea to seek legal representation. Along with defending against the validity of the order, they can help with making sure motions are filed on time, understanding the terms of the order, modifying the order to account for minor children in common, and defending against violations of the order. Those who served should speak with a lawyer as soon as possible about their situation to get personalized advice for moving forward.
If you’ve been served with a protection order, now’s the time to seek legal help. This is not something you should wait on, as time is limited. If this order is in place, it could have a much bigger impact on your life now and in the future than you may realize. After reading through the order, contact Weise Law for help and to get specific answers to any questions you might have about your own situation. Since every case is different, having an experienced attorney review it with you and discuss the next steps can help you avoid any possible violations and minimize the interruption this can have on your life now and in the future. Contact us today. (616) 931-7030