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.

B.Service Requirements

“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).


Committee Tip:

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).

 

C.Hearing Procedures

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).

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 

D.Burden of Proof

“[T]he petitioner [has] the burden of persuasion in a hearing held on a motion to terminate or modify an ex parte PPO.” Pickering v Pickering, 253 Mich App 694, 698-699 (2002) (“[b]ecause the PPO statute and court rules are silent on the issue of the burden of proof in a hearing on a motion to rescind or terminate [an ex parte PPO], the procedures in MCR 3.310(B)(5)[4] do not conflict with the PPO statute or court rules, and therefore are controlling in this case[;]” “[a]ccordingly, we hold that under MCR 3.310(B)(5) the burden of justifying continuation of a PPO granted ex parte is on the applicant for the restraining order”).

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.

G.Motion Fees

There are no motion fees for filing a motion to modify or terminate a PPO. MCL 600.2529(1)(e); MCR 3.707(D).

1    “On an appropriate showing, the court may allow service in another manner as provided in MCR 2.105(J).” MCR 3.707(A)(1)(c).

2    Formerly the Michigan law enforcement officers training council act.

3   For additional information on minors as parties to a personal protection proceeding, see Section 5.4.

4    MCR 3.310(B)(5) provides, in part, “[a]t a hearing on a motion to dissolve a restraining order granted without notice, the burden of justifying continuation of the order is on the applicant for the restraining order whether or not the hearing has been consolidated with a hearing on a motion for a preliminary injunction or an order to show cause.”