A personal protection order or PPO in Michigan is nothing to dismiss as minimal. There are ways to beat a PPO filed against you. In this article, I will discuss three ways to defeat a PPO in court.
Ex Parte PPO in Michigan
The Petitioner will use a form. This form is called a Petition for Personal Protection Order (Domestic Relationship), CC375, or a Petitioner for Personal Protection Order (Nondomestic-stalking). In Michigan, we call a Personal Protection Order a PPO for short. There is a third form for sexual assault which is not discussed in this article. The petitioner will attach a letter explaining why they believe they need protection from the respondent. Once this petition is filed, the Court is obligated to review it quickly. The court may grant the petition and sign the Ex Parte PPO or deny the petition. Either party may ask for a hearing. There are time limits for asking for a hearing, all the time limit periods are written on the order. It is best to ask for a hearing to Terminate a PPO within the time period, if a Respondent misses the time period in which to contest the PPO and ask for a hearing, it becomes much harder to terminate the PPO.
How to Defeat a PPO-The Basics
Every case is different. There is no one strategy to defeat a PPO. There some basic things that any respondent can do to focus on the issues of the case. First, read the letter or pleadings that the petitioner filed. These alleged facts are the starting point. One by one, the respondent must think about each fact or allegation.
PPO petitioners a prone to exaggeration and see evil where there is none. For example, in one of my PPO hearings, a petitioner claimed the respondent was stalking her by appearing at a soccer game for their child. Never mind that the respondent has been attending his child’s games for years. A respondent needs to be ready to explain or tell their side of each fact or allegation made by the petitioner.
Second, it is not acceptable for a respondent to just lift up their arms and claim, “I am not a lawyer.” There are plenty of lawyer websites and free legal resources on the world wide web that explains the law behind a PPO. How to beat a PPO includes learning how the law works for a PPO.
For example, when a hearing is scheduled for a PPO, the petitioner has the burden of proof. When the Petitioner doesn’t have an attorney, the Judge sometimes asks one simple question, “Petitioner you have the burden of proof, I want you to tell me why you think you need protection.” The Judge isn’t there to help the petitioner. It’s up to the petitioner to present their case through testimony and documentary evidence.
If a petitioner freezes in the hearing this will help the respondent. For example, both a domestic PPO and a nondomestic PPO incorporate Michigan’s criminal harassment statutes. A respondent can learn a lot about how the criminal harassment law works on the web. It’s worth a respondent’s time to spend fifteen minutes in front of a computer searching the web.
Using a PPO to Change Child Custody
People don’t want to hire lawyers for child custody. Why? They don’t want to part with the money for professional help. The result is there are many people out there with a child in common and no formal child custody order. In family law, there is a concept called initial custody. Initial custody is established by a statute, MCL 722.1006.
After the unwed couple signs an “affidavit of parentage” the initial custody is granted to the mother. In short, without a formal custody order, the statute states that the mother has custody of the child, not the father; however, the statute states the father’s custody isn’t prejudiced in any way. In other words, without a court-approved custody order, the mother is in charge.
Initially, the couple remains together and raises the child together. But after a couple of years, the couple splits up. Now what? Some couples immediately file for a custody order through the family law court. However, a sizeable group of couples does not seek a proper child custody order, rather they agree to an informal custody order.
So years pass under the informal custody order, the father receives parenting time with the child until the mother decides it time to stop the father’s parenting time. Misinformed, the father believes he has some parental rights and becomes angry with the child’s mother. “I want to see our kid?” “What are you doing?” “This is B.S..” “This is wrong, let me see my kid, you’re evil.” The father becomes increasingly desperate to visit with the child, causing more and more belligerent behavior with nasty name-calling.
At this point, the mother loses her patients and forcefully tells the father to stop communicating with her, thereby triggering the criminal harassment statutes in Michigan. Nothing infuriates a parent more than being told they can’t have a relationship with their child. The father continues to communicate with the mother and the mother files for an Ex Parte PPO.
In this situation, the strategy is to demonstrate to the Court that these parties have fought in the past and resolved their differences by communicating. So long as the father isn’t making obvious threats of violence toward the mother, unwanted communications to the mother after she has put her foot down, in a way, stray away from the true intent of the personal protection statute, that is the need to protect someone that indeed is intimidated and threatened by the respondent’s words and conduct.
Another way to view this is in the past when these parties become upset, they would talk things out and the mother would resume visitation with the father. In the past, his behavior was similar yet the mother didn’t file for a PPO, why? The key to this defense is the father not overstepping a line, that line being his desire to see and have visitation with the child. The father’s communications have to be related to his desire to see the child.
Once the father makes threats and begins to verbally abuse the mother without a request to see the child, the fact pattern turns from a loving, yet frustrated, father into a bitter angry man capable of perpetrating harassing acts under the statute. A reviewing court may look at this fact pattern and choose not to impose a PPO citing that these parties are having a custody dispute more than the respondent seeking to harm or harass the petitioner. Rather than either party filing for a proper custody order, the petitioner seeks to remove the respondent from the child’s life through the use of a PPO. A viable way to defeat a PPO is to demonstrate that Petitioner’s motives are rooted in an improper attempt to change child custody.
The Unsympathetic Petitioner
The family law court is very cognizant of the ease and frequency in which a PPO is abused. The police often suggest to people to try to obtain a PPO rather than request a criminal warrant for the respondent. Yes, this is true. This common practice among local police further fuels the PPO machine in family court. The unsympathetic petitioner occurs a number of ways.
One fact pattern is the battling neighbors. Each neighbor is equally giving the other party grief. Finally one of them seeks a PPO based on a harassment theory. When this happens, it is important to demonstrate how the petitioner provoked the respondent. If possible, introduce the petitioner’s own harassing/or threatening comments at the hearing. When this happens, the petition loses the presumption of a victim. When a petitioner seeks a PPO, they have to genuinely feel threatened, unsafe, or harassed. A reviewing Court will feel little sympathy for the person who acts like a victim in court but at home is an active combatant.
Another example of an unsympathetic Petitioner is the female that obtains a PPO then turns the protection on and off like a light switch. This behavior is more common during a violation of a PPO.
In short, the petitioner baits the respondent into breaking the PPO. For example, the petitioner extends the respondent an invitation for dinner. At the dinner, the parties begin to argue and the next day the petitioner seeks enforcement of the PPO. Before the dinner, the petitioner turned off the PPO, then after the argument, the petitioner turns the PPO back on. Once again, if you come to court seeking a PPO you have to act like a victim all the time. Demonstrating how the petitioner is an unsympathetic party is a good strategy to defeat a PPO.
The Rules of Evidence Apply at The Hearing
The rules of evidence apply at a PPO hearing. If the petitioner doesn’t know the rules of evidence, then there is a good chance that he/she will break them. In particular, the hearsay rules can stop a petitioner’s case. Clearly, appearing in court with a lawyer that knows the rules of evidence will make a difference in a PPO hearing. Hiring a lawyer and using the rules of evidence to limit the petitioner’s evidence at the hearing is a good way to defeat a PPO.
If you need to appeal a Personal Protection Order, a criminal conviction or file a 6500 Motion to overturn a criminal conviction, call Mark Linton - Michigan Criminal Appellate Attorney today at (517) 993-9555.