By: Dennis M. Germain, Attorney & Counselor at Law
A personal protection order (PPO) is a court order designed to protect one person by restraining another from certain specified behavior, e.g., violence, harassment, or stalking. This article is the first of a three part series regarding PPO defense. It focuses on defending against allegations of abuse in a domestic relationship.*
Michigan has taken strong action in the war on domestic abuse and circuit courts are facilitative in offering prompt relief to victims. While this state of affairs sounds righteous, it sometimes comes at a cost. False accusers are arguably just as easily able to obtain and uphold PPOs for wrongful purposes such as revenge, jealousy, and/or to secure an advantage in a custody or divorce case with no more than accusations and self-testimony.
Respondents (the accused) do not seem to enjoy the same public backing as petitioners (the accusers). A petitioner may go straight to the court, get help from the staff, and possibly obtain a PPO that same day.** On the other hand, the respondent often faces disapproval and scoffs before even filing a response. Moreover, a quick Web browse reveals most free materials regarding PPOs only tell how to get a PPO, not how to defend against one. Finally, the PPO statute is lined with assistive language for obtaining a PPO and minimal safeguards against wrongful issuance.
As a family lawyer, I have served in PPO cases on the side of the accused and accuser. I worked for and was mentored by one of Michigan’s most active legal authorities on PPOs and domestic abuse, Judge Richard Halloran. I learned that when dealing with PPO cases, it is important to understand the dynamics of domestic abuse from all sides. That includes the side of the respondent as well as the petitioner. Not much literature is dedicated to the perspective of the respondent; more specifically, the respondent who has been falsely accused. That is why I felt the need to write this article.
POSSIBLE EFFECTS OF HAVING A DOMESTIC PPO ENTERED AGAINST YOU
If you are the respondent, issuance of a domestic PPO can have serious ramifications. The PPO appears in the police LEIN system and the public record. It can restrain you from appearing in certain locations, possessing/purchasing a firearm, or even entering your own home.*** The PPO can also negatively affect your current or prospective employment.
Most alarming, a PPO can prevent immediate access to your own child(ren).**** It can lay the foundation to a lifelong, uphill struggle to enjoy meaningful parenting time and avoid massive child support obligations.
WHAT YOU MIGHT BE FACING IN DEFENDING AGAINST A DOMESTIC PPO
In an initial encounter between man and woman, where you are the man, it is possible that you were already arrested (even if there was no abuse at all). Police reports are typically not admissible into evidence, yet you might still find one attached to the PPO petition, thereby predisposing the judge to bias from the very beginning of your case.
You will confront the low burden of proof required to obtain/maintain the PPO, “reasonable cause to believe” that you might engage in so-called prohibited conduct.***** There is no direct legal interpretation of this standard and it seems a judge has vast discretion in deciding your fate. With minimal safeguards against false accusations, a “play it safe” methodology, pressure from victims’ rights groups, a public crackdown on batterers, an aggressive opposing lawyer, and the weeping of your feeble accuser, it might seem there is no chance for a fair ruling.
DEFENDING AGAINST THE ALLEGATIONS OF DOMESTIC ABUSE
Work Harder: Given the obstacles described, a PPO respondent and his attorney must work twice as hard to obtain a fair ruling. This can require securing witnesses, documentary evidence, and every available resource tending to discredit the petitioner’s false accusations. If you have been falsely accused of a PPO, you have a tall task ahead of you. You must work very hard to conquer the bitterness and resentment of being treated unfairly. I cannot overemphasize the value of having a positive outlook in a PPO proceeding.
Utilize the Few Available Legal Requisites: A good starting point for a defending attorney is to emphasize to the court that the burden of proof in obtaining/continuing a PPO is on the petitioner.****** To attempt to avoid issuance of PPO for non-violent conduct (as a plain reading of the statute would ostensibly allow), it is important for the attorney to also remind the judge that case law clarifies that issuance of a PPO at least requires a showing of concern for “violent or harassing acts.”******* [Thank you, Lee Ann Sterling, for the citation].
Utilize the Rules of Evidence: A respondent’s attorney should also have a working understanding of the Rules of Evidence to ensure the court excludes unduly prejudicial information and damaging hearsay. Furthermore, the attorney should have the ability to admit important vindicating evidence, e.g., text messages, audio, email correspondence, etc.
Demand a Causal Link: Perhaps the most frustrating aspect of defending against a PPO is trying to hold a false accuser accountable. As seen in the highly publicized Jodi Arias trial, a false accuser may exploit the “battered woman” concept to justify or distract from inconsistent statements. As an attorney and observer of the PPO docket, I hear petitioners’ attorneys repeatedly speak in general terms of the nature of “abuse victims” and “abusive personalities.” When this happens, as the defending attorney, I find it helps to repeatedly remind the court to focus on the facts of the instant case, and steer away from generalized, non-articulable propaganda. When a false accuser shelters inconsistent statements with false martyr tactics, a defending attorney must be assertive in highlighting the absence of a factual connection between the inconsistent statements and abuse.
Be Assertive, NOT Aggressive: It is important for the defending attorney to be assertive when holding a petitioner accountable, but not aggressive. Judges usually do not like seeing an alleged domestic abuse victim getting bullied on the stand.
Humanize the Respondent: The presentation of a respondent is important to defending against a PPO. The respondent should be dressed nice and neatly groomed. The defending attorney should familiarize the court with the respondent so that the judge can ultimately learn he is a nice person just like him/her. The respondent must always be candid with the court and even opposing counsel. To maintain credibility, the respondent must always tell the truth even when asked damaging questions. It typically does not help to fight back against the questioner because it allows an observer to reinforce any predisposed biased he/she had against you from Petitioner’s original pleadings.
Finally, in most cases, I strongly believe a respondent should fight the urge to be overzealous in convincing the court he is innocent. I think it is best to present the basic facts, answer the questions plainly, and let the judge feel like he/she is figuring it out without any help.
DEFENDING THE ACTUAL ABUSER
One thing that makes defending against allegations of abuse difficult is that abusers do not usually admit to engaging in domestic abuse. I believe it is an attorney’s responsibility to examine the respondent’s story carefully to avoid unknowingly participating in misleading the court.
If the attorney is aware of actual abuse, I believe that the best course of action is usually to encourage the abuser to voluntarily enroll in anger management, batterer intervention counseling, or other remedial programs (while keeping thorough attendance logs and progress journals). Many judges have informed me that taking these remedial steps can help mitigate the harshness of the judge’s ultimate decision in granting a PPO, as well as reduce the PPO’s duration. Most importantly, these programs, particularly BISC, have had some success in aiding abusers in permanently ceasing abusive behavior. END
*Under MCL 600.2950(1), “domestic” PPOs apply when the respondent is a spouse, former spouse, a co-parent of the same child, one whom the accuser had a dating relationship, or one residing with the accuser.
**** MCL 600.2950(1)(d); Brandt v Brandt, 250 Mich App 68; 645 NW2d 327 (2002).
****** MCR 3.310(B)(5); Kampf v Kampf, 237 Mich App 377, 385-386, 603 NW2d 295 (1999).
Please note that this article is intended to be academic in nature. Its purpose is to serve as a memorialization of research as well as invoke community discussion. This article shall not constitute legal advice. It does not create an attorney-client relationship. Legal advice should be given on a case-by-case basis, as its accuracy is relative to the timing and particular facts of the given matter. It is important to always consult an attorney regarding legal matters.
I am Dennis M. Germain, a family law attorney who promotes amicable resolution to domestic relations matters. I primarily practice in Wayne County, Macomb County, and Oakland County. My office and contact information is listed as follows:
Best Interest Law
48639 Hayes Road, Suite A
Shelby Township, MI 48315
Ph: (586) 219-6454
Fax: (586) 439-0404