5.10Modification or Termination of PPO
A.Time Requirements for Filing Motion
1.Petitioner’s Motion to Modify or Terminate
“The petitioner may file a motion to modify or terminate the [PPO] and request a hearing at any time after the [PPO] is issued.” MCR 3.707(A)(1)(a).
2.Respondent’s Motion to Modify or Terminate
“The respondent may file a motion to modify or terminate an ex parte [PPO] or an ex parte order extending a [PPO] and request a hearing within 14 days after being served with, or receiving actual notice of, the order. Any motion otherwise to modify or terminate a [PPO] by the respondent requires a showing of good cause.” MCR 3.707(A)(1)(b). See also MCL 600.2950(13) and MCL 600.2950a(13), which contain substantially similar language.
“The moving party shall serve the motion to modify or terminate the order and the notice of hearing at least 7 days before the hearing date as provided in MCR 2.105(A)(2) [(service via certified or registered mail, return receipt requested, and delivery restricted to addressee)] at the mailing address or addresses provided to the court.”1 MCR 3.707(A)(1)(c). However, “one day before the hearing is deemed sufficient notice to the petitioner” where “the moving party is a respondent who is issued a license to carry a concealed weapon and is required to carry a weapon as a condition of employment, a police officer certified by the [Michigan commission on law enforcement standards act2] MCL 28.601 to [MCL 28.615], a sheriff, a deputy sheriff or a member of the Michigan department of state police, a local corrections officer, department of corrections employee, or a federal law enforcement officer who carries a firearm during the normal course of employment[.]” MCR 3.707(A)(1)(c).
Although MCR 3.707 does not address procedural requirements regarding service of a motion to modify or terminate a PPO in cases involving a respondent under the age of 18, it does require “[p]etitioners or respondents who are minors . . . [to] proceed through a next friend, as provided in MCR 3.703(F).” MCR 3.707(C).
MCR 3.707 does not address service of a motion to modify or terminate a PPO in cases involving a respondent under the age of 18. However, the Advisory Committee suggests making service on both the minor respondent and the minor respondent’s parent or parents, guardian, or custodian, if practicable. See MCR 3.705(B)(2) (service of notice of hearing on issuance of PPO on the minor respondent’s parent, guardian, or custodian, if whereabouts is known); MCR 3.706(D) (service of PPO on the minor respondent’s parent or parents, guardian, or custodian, if whereabouts is known).
Generally, within 14 days after a motion to modify or terminate a PPO is filed, the court must schedule a hearing. MCL 600.2950(14); MCL 600.2950a(14); MCR 3.707(A)(2).
“The trial court was required to hold the hearing on a motion to terminate a PPO and to allow respondent a meaningful opportunity to challenge the merits of the Ex Parte PPO.” JLS v HRS, ___ Mich App ___, ___ (2024) (cleaned up). “Such a meaningful opportunity requires not only the invitation to argue against the validity of the PPO, but also the willingness to receive evidence from the respondent.” Id. at ___. “Under due process principles, ‘[t]he opportunity to be heard does not mean a full trial-like proceeding, but it does require a hearing to allow a party the chance to know and respond to the evidence.’” Id. at ___ (citation omitted; alteration in original). “Therefore, due process necessarily mandates an opportunity for the respondent to present evidence at a hearing to terminate a PPO.” Id. at ___ (reversed and remanded “for a prompt hearing on the motion that comports with due process”).
“The circuit court denied respondent the opportunity to know and respond to the evidence when, even after petitioner’s testimony was brief and vague, the court did not allow respondent to cross-examine her about her allegations.” HMM v JS, ___ Mich App ___, ___ (2024). At the hearing on his motion to terminate the ex parte PPO, when respondent’s counsel attempted to cross-examine the 17-year-old petitioner about her allegations that respondent sexually assaulted her “a few times” several years earlier, “the circuit court interjected and told counsel ‘that’s going to be all the questions we’re going to ask with regard to that’ . . . .” Id. at ___. “By depriving respondent of the opportunity to cross-examine petitioner about the alleged sexual assault, the circuit court increased the risk of erroneously depriving respondent of significant liberty interests.” Id. at ___ (vacating on due process grounds the order denying respondent’s motion to terminate the PPO).
In addition, an accelerated timeframe exists for cases involving certain respondents. The court must schedule the hearing within five days after the motion to modify or terminate a PPO is filed if:
•the PPO prohibits a respondent from purchasing or possessing a firearm, and
•the respondent is licensed to carry a concealed weapon and is required to carry a weapon as part of his or her employment as:
•a police officer licensed or certified under MCL 28.601 to MCL 28.615;
•a sheriff;
•a deputy sheriff or a member of the Michigan Department of State Police;
•a local corrections officer;
•a Department of Corrections employee; or
•a federal law enforcement officer who carries a firearm during the normal course of his or her employment. MCL 600.2950(2); MCL 600.2950(14); MCL 600.2950a(5); MCL 600.2950a(14); MCR 3.707(A)(2).
MCR 3.912(A)(4) requires a judge to preside at a proceeding on the modification or termination of a minor PPO.3
“‘[A] petitioner bears the burden of proof when seeking to obtain an ex parte PPO.’” HMM v JS, ___ Mich App ___, ___ (2024), quoting Pickering v Pickering, 253 Mich App 694, 698-699 (2002) (alteration in original). “Similarly, on a motion to terminate or modify the ex parte PPO, ‘the burden of proof remains with a petitioner who seeks to establish a justification for the continuance of a PPO.’” HMM, ___ Mich App at ___ (cleaned up). In HMM, the circuit court erroneously shifted “not just the burden of going forward with evidence, but also the burden of persuasion, from petitioner to respondent,” when it “restricted its own access to petitioner’s testimony to audio only and cut short respondent’s attempts at cross examination.” Id. at ___. See also MCR 3.310(B)(5)4and JLS v HRS, ___ Mich App ___, ___ (2024) (“[Respondent’s motion to terminate the ex parte PPO] triggered an obligation on the part of petitioner to establish ‘a justification for the continuance of [the] PPO at a hearing on the respondent’s motion . . . .’”) (citation omitted; second alteration in original). “In Michigan, there are two aspects of the ‘burden of proof’—the burden of persuasion and the burden of going forward with the evidence.” HMM, ___ Mich App at ___ (quotation marks and citation omitted). “Although the latter burden might shift throughout a proceeding as evidentiary presumptions rise and fall, the former burden always remains with the petitioner.” Id. at ___ (citations omitted).
E.Notice of Modification or Termination
“If a [PPO] is modified or terminated, the clerk must immediately notify the law enforcement agency specified in the [PPO] of the change.” MCR 3.707(A)(3). See also MCL 600.2950(19)(b) and MCL 600.2950a(19)(b), which contain substantially similar language.
“A modified or terminated order must be served as provided in MCR 2.107 [(governing service and filing of pleadings and other documents)].” MCR 3.707(A)(3).
F.Minors or Legally Incapacitated Individuals
“Petitioners or respondents who are minors or legally incapacitated individuals must proceed through a next friend, as provided in MCR 3.703(F).” MCR 3.707(C). For additional information on minors and legally incapacitated individuals as parties to a personal protection proceeding, see Section 5.4.
There are no motion fees for filing a motion to modify or terminate a PPO. MCL 600.2529(1)(e); MCR 3.707(D).