By: Dennis M. Germain, Attorney & Counselor at Law
This article is Part 3 of a 3 part series on personal protection order (PPO) defense. In Part 1, I discussed defending against a domestic PPO. In Part 2, I discussed defendant against a non-domestic (“stalking”) PPO. In this article, I focus on the accused’s use of a civil “mutual restraining order” to avoid having a PPO entered against him/her.
A brief Internet search reveals the web is full of articles to help people obtain a PPO in Michigan. However, there is minimal academic material that discusses defending against PPO-related allegations. Thus, I offer the instant article to serve as a balance on the matter, particularly as to defending against false PPO allegations.
A “personal protection order” (PPO) is a court order designed to protect a person by restraining another from certain specified behavior; e.g., violence, harassment, domestic abuse, or stalking. There are two common types of PPOs; (1) a domestic PPO (a.k.a. family or dating relationship PPO), and (2) a non-domestic PPO (a.k.a. stalking PP). It should be noted that there is also a third type of PPO; a sexual assault PPO. This article only focuses on the first two types.
The ability to utilize a civil mutual restraining order is an important more tool in a PPO defense attorney’s repertoire. When a petitioner (the accuser) pursues a PPO against a respondent (the accused), the respondent’s attorney may suggest entry of a “civil mutual restraining order” (CMRO) as an agreed upon alternative to the risk of battling the petitioner at a PPO mini trial. This article discusses the benefits of entry of a CMRO (versus a PPO), the general requirements of obtaining a CMRO, and the legal and practical obstacles a PPO defense attorney might encounter in seeking entry of a CMRO.
POSSIBLE EFFECTS OF HAVING A PPO ENTERED AGAINST YOU
If you are the respondent, entry of a PPO can have serious consequences. A PPO appears in the public record and the Michigan police LEIN system.* A PPO can enjoin you from appearing in certain locations, and, in some circumstances, even your own home.** It can negatively affect your current or prospective employment. A PPO can enjoin you from purchasing or possessing a firearm.*** Lastly, in some cases, a PPO can block your immediate access to your child(ren), and lay the foundation to a lifelong, uphill struggle to enjoy meaningful parenting time and elude massive child support obligations.****
BENEFITS OF A CIVIL MUTUAL RESTRAINING ORDER
A key difference between a PPO and a civil mutual restraining order is that a CMRO restricts both parties from the specified behavior, where a PPO only restricts one party. However, the essential commands of a CMRO can be made similar to those of a PPO. Just like a PPO, a CMRO can be used to restrain a party from engaging in specified behavior such as violence, harassment, domestic abuse, or stalking, thereby offering some appeal to the petitioner of a PPO. Moreover, because the parties draft the language of the CMRO, a CMRO can offer more specific, customized relief. Because a CMRO is “mutual” and based on the agreement of the parties’, it benefits the respondent in that it does not appear to carry the same negative stigma as a PPO.
A CMRO is also a beneficial alternative to a PPO for a respondent because, unlike a PPO, a CMRO does not place the respondent in the Police LEIN system or subject the respondent to immediate arrest upon alleged violation. Instead, the court’s ability to find a Respondent in contempt (and/or even award a PPO on top of the CMRO) serves as the deterrent factor against violation of the CMRO. This should be especially desirable for a respondent who has no intention to violate the CMRO.
Perhaps the greatest benefit of a CMRO in a PPO case is that it offers the opportunity for settlement in an area of law that is typically “win or lose.” I.e., without the option for settlement that a CMRO offers, a traditional PPO case always has a clear winner and loser. However, if a respondent and petitioner can agree on terms of a CMRO, both parties can walk away relatively satisfied. Moreover, entry of a CMRO can relieve the parties and attorneys from the uncertainty, drama, and stress involved in a public PPO hearing, as well as save the parties time and money (especially in cases of hourly billing).
REQUIREMENTS & LEGAL OBSTACLES TO ENTRY OF A CMRO
When seeking entry of a civil mutual restraining order, a respondent’s attorney must be prepared to address the legal and practical matters that may arise. First and foremost, the respondent’s attorney should be able to educate the court about its authority to even enter the CMRO in the first place. A court’s legal basis to enter a civil mutual restraining order appears to lie in its injunctive power.*****
Also, as a matter of common sense, a petitioner’s stipulation to terms of a CMRO is a prerequisite to entry of a CMRO. To get the petitioner to stipulate to entry of a CMRO (and convince a judge that entry of that particular CMRO is appropriate), the respondent’s attorney should be able to effectively convey the practical advantages of entry of the CMRO.
Furthermore, a respondent’s attorney should be ready to clear potential statutory obstacles. For example, Michigan’s domestic and non-domestic PPO statutes’ prohibitions against mutual PPOs states that:
A personal protection order shall not be made mutual. Correlative separate personal protection orders are prohibited unless both parties have properly petitioned the court pursuant to subsection (1). ******
Thus, even if parties stipulate to entry of a CMRO, the possibility exists that a judge might construe a CMRO as nothing more than a mutual PPO and be reluctant to enter it. To combat this possibility, when appearing in front of the court, a respondent’s attorney should have handy a written list of the patent differences between a CMRO and a PPO. Readily being able to recite this list can help make a judge feel comfortable he/she is acting within the confines of the law when entering a CMRO.
Another concern is that some judges in non-domestic cases might be reluctant to enter a CMRO considering the case might otherwise be closed or the county’s structure for handling PPO cases is not practical for handling continuing authority over a CMRO. Recognizing this concern, a PPO defense attorney should continuously be taking a tally on the judges’ preferences and the arrangement of the counties he/she is practicing in.
This author communicates with a network of attorneys about judge’s preferences in PPO cases in Wayne County, Oakland County, and Macomb County Michigan. I encourage all attorneys who might read this to contact me about their experiences to that end. I will be happy to share mine.
* MCL 600.2950(16).
** MCL 600.2950(1).
**** See MCL 600.2950(1)(d); Also see Brandt v Brandt, 250 Mich App 68; 645 NW2d 327 (2002).
***** See MCR 3.310 for general civil injunctive procedure; Also see MCR 3.207 for injunctive procedure in the family court.
****** MCL 600.2950(8); MCL 600.2950a(8).
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, Michigan. 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