Bill Text: MI HB4096 | 2017-2018 | 99th Legislature | Introduced

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Bill Title: Civil procedure; personal protection orders; child custody and child and spousal support; allow to be included. Amends sec. 2950 of 1961 PA 236 (MCL 600.2950).

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2017-01-31 - Bill Electronically Reproduced 01/26/2017 [HB4096 Detail]

Download: Michigan-2017-HB4096-Introduced.html

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HOUSE BILL No. 4096

 

 

January 26, 2017, Introduced by Rep. Kosowski and referred to the Committee on Law and Justice.

 

     A bill to amend 1961 PA 236, entitled

 

"Revised judicature act of 1961,"

 

by amending section 2950 (MCL 600.2950), as amended by 2016 PA 296.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 2950. (1) Except as provided in subsections (26) and

 

(27), and (28), by commencing an independent action to obtain

 

relief under this section, by joining a claim to an action, or by

 

filing a motion in an action in which the petitioner and the

 

individual to be restrained or enjoined are parties, an individual

 

may petition the family division of circuit court to enter a

 

personal protection order to restrain or enjoin a spouse, a former

 

spouse, an individual with whom he or she has had a child in

 

common, an individual with whom he or she has or has had a dating

 

relationship, or an individual residing or having resided in the

 

same household as the petitioner from doing 1 or more of the

following:

 

     (a) Entering onto premises.

 

     (b) Assaulting, attacking, beating, molesting, or wounding a

 

named individual.

 

     (c) Threatening to kill or physically injure a named

 

individual.

 

     (d) Removing minor children from the individual having legal

 

custody of the children, except as otherwise authorized by a

 

custody or parenting time order issued by a court of competent

 

jurisdiction.

 

     (e) Purchasing or possessing a firearm.

 

     (f) Interfering with petitioner's efforts to remove

 

petitioner's children or personal property from premises that are

 

solely owned or leased by the individual to be restrained or

 

enjoined.

 

     (g) Interfering with petitioner at petitioner's place of

 

employment or education or engaging in conduct that impairs

 

petitioner's employment or educational relationship or environment.

 

     (h) Having access to information in records concerning a minor

 

child of both petitioner and respondent that will inform respondent

 

about the address or telephone number of petitioner and

 

petitioner's minor child or about petitioner's employment address.

 

     (i) Engaging in conduct that is prohibited under section 411h

 

or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and

 

750.411i.

 

     (j) Any of the following with the intent to cause the

 

petitioner mental distress or to exert control over the petitioner

with respect to an animal in which the petitioner has an ownership

 

interest:

 

     (i) Injuring, killing, torturing, neglecting, or threatening

 

to injure, kill, torture, or neglect the animal. A restraining

 

order that enjoins conduct under this subparagraph does not

 

prohibit the lawful killing or other use of the animal as described

 

in section 50(11) of the Michigan penal code, 1931 PA 328, MCL

 

750.50.

 

     (ii) Removing the animal from the petitioner's possession.

 

     (iii) Retaining or obtaining possession of the animal.

 

     (k) Any other specific act or conduct that imposes upon or

 

interferes with personal liberty or that causes a reasonable

 

apprehension of violence.

 

     (2) If the respondent is a person who is issued a license to

 

carry a concealed weapon and is required to carry a weapon as a

 

condition of his or her employment, a police officer licensed or

 

certified by the Michigan commission on law enforcement standards

 

act, 1965 PA 203, MCL 28.601 to 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 his or her employment, the petitioner shall notify

 

the court of the respondent's occupation prior to before the

 

issuance of the personal protection order. This subsection does not

 

apply to a petitioner who does not know the respondent's

 

occupation.

 

     (3) A petitioner may omit his or her address of residence from

documents filed with the court under this section. If a petitioner

 

omits his or her address of residence, the petitioner shall provide

 

the court with a mailing address.

 

     (4) The court shall issue a personal protection order under

 

this section if the court determines that there is reasonable cause

 

to believe that the individual to be restrained or enjoined may

 

commit 1 or more of the acts listed in subsection (1). In

 

determining whether reasonable cause exists, the court shall

 

consider all of the following:

 

     (a) Testimony, documents, or other evidence offered in support

 

of the request for a personal protection order.

 

     (b) Whether the individual to be restrained or enjoined has

 

previously committed or threatened to commit 1 or more of the acts

 

listed in subsection (1).

 

     (5) A court shall not issue a personal protection order that

 

restrains or enjoins conduct described in subsection (1)(a) if all

 

of the following apply:

 

     (a) The individual to be restrained or enjoined is not the

 

spouse of the moving party.

 

     (b) The individual to be restrained or enjoined or the parent,

 

guardian, or custodian of the minor to be restrained or enjoined

 

has a property interest in the premises.

 

     (c) The moving party or the parent, guardian, or custodian of

 

a minor petitioner has no property interest in the premises.

 

     (6) A court shall not refuse to issue a personal protection

 

order solely due to because of the absence of any of the following:

 

     (a) A police report.

     (b) A medical report.

 

     (c) A report or finding of an administrative agency.

 

     (d) Physical signs of abuse or violence.

 

     (7) If the court refuses to grant a personal protection order,

 

it shall state immediately in writing the specific reasons it

 

refused to issue a personal protection order. If a hearing is held,

 

the court shall also immediately state on the record the specific

 

reasons it refuses to issue a personal protection order.

 

     (8) A court shall not issue a mutual personal protection

 

order. may not be made mutual. Correlative separate personal

 

protection orders are prohibited unless both parties have properly

 

petitioned the court under subsection (1).

 

     (9) A personal protection order is effective and immediately

 

enforceable anywhere in this state when after being signed by a

 

judge. Upon service, a personal protection order may also be

 

enforced by another state, an Indian tribe, or a territory of the

 

United States.

 

     (10) The issuing court shall designate the a law enforcement

 

agency that is responsible for entering the a personal protection

 

order into the law enforcement information network. as provided by

 

the C.J.I.S. policy council act, 1974 PA 163, MCL 28.211 to 28.215.

 

     (11) A personal protection order must include all of the

 

following, and to the extent practicable the following shall be

 

contained in a single form:

 

     (a) A statement that the personal protection order has been

 

entered to restrain or enjoin conduct listed in the order and that

 

violation of the personal protection order will subject the

individual restrained or enjoined to 1 or more of the following:

 

     (i) If the respondent is 17 years of age or more, older,

 

immediate arrest and the civil and criminal contempt powers of the

 

court , and, that if he or she is found guilty of criminal

 

contempt, he or she shall be imprisoned imprisonment for not more

 

than 93 days and may be fined a fine of not more than $500.00.

 

     (ii) If the respondent is less than 17 years of age, immediate

 

apprehension or being taken into custody , and subject to the

 

dispositional alternatives listed in section 18 of chapter XIIA of

 

the probate code of 1939, 1939 PA 288, MCL 712A.18.

 

     (iii) If the respondent violates the personal protection order

 

in a jurisdiction other than this state, the respondent is subject

 

to the enforcement procedures and penalties of the state, Indian

 

tribe, or United States territory under whose jurisdiction the

 

violation occurred.

 

     (b) A statement that the personal protection order is

 

effective and immediately enforceable anywhere in this state when

 

after being signed by a judge, and that, upon service, a personal

 

protection order also may be enforced by another state, an Indian

 

tribe, or a territory of the United States.

 

     (c) A statement listing the type or types of conduct enjoined.

 

     (d) An expiration date stated clearly on the face of the

 

order.

 

     (e) A statement that the personal protection order is

 

enforceable anywhere in Michigan this state by any law enforcement

 

agency.

 

     (f) The name of the law enforcement agency designated by the

court to enter the personal protection order into the law

 

enforcement information network.

 

     (g) For ex parte orders, a statement that the individual

 

restrained or enjoined may file a motion to modify or rescind the

 

personal protection order and request a hearing within 14 days

 

after the individual restrained or enjoined has been served or has

 

received actual notice of the order and that motion forms and

 

filing instructions are available from the clerk of the court.

 

     (12) A court shall issue an ex parte personal protection order

 

without written or oral notice to the individual restrained or

 

enjoined or his or her attorney if it clearly appears from specific

 

facts shown by a verified complaint, written motion, or affidavit

 

that immediate and irreparable injury, loss, or damage will result

 

from the delay required to effectuate notice or that the notice

 

will itself precipitate adverse action before a personal protection

 

order can be issued.

 

     (13) A personal protection order issued under subsection (12)

 

is valid for not less than 182 days. The individual restrained or

 

enjoined may file a motion to modify or rescind the personal

 

protection order and request a hearing under the Michigan court

 

rules. The A motion to modify or rescind the personal protection

 

order must be filed within 14 days after the order is served or

 

after the individual restrained or enjoined has received actual

 

notice of the personal protection order unless good cause is shown

 

for filing the motion after the 14 days have elapsed.

 

     (14) Except as otherwise provided in this subsection, the

 

court shall schedule a hearing on the a motion to modify or rescind

the an ex parte personal protection order within 14 days after the

 

filing of the motion to modify or rescind. is filed. If the

 

respondent is a person described in subsection (2) and the personal

 

protection order prohibits him or her from purchasing or possessing

 

a firearm, the court shall schedule a hearing on the motion to

 

modify or rescind the ex parte personal protection order within 5

 

days after the filing of the motion to modify or rescind.is filed.

 

     (15) The clerk of the court that issues a personal protection

 

order shall do all of the following immediately upon issuance and

 

without requiring a proof of service on the individual restrained

 

or enjoined:

 

     (a) File a true copy of the personal protection order with the

 

law enforcement agency designated by the court in the personal

 

protection order.

 

     (b) Provide the petitioner with 2 or more true copies of the

 

personal protection order.

 

     (c) If the respondent is identified in the pleadings as a law

 

enforcement officer, notify the officer's employing law enforcement

 

agency, if known, about the existence of the personal protection

 

order.

 

     (d) If the personal protection order prohibits the respondent

 

from purchasing or possessing a firearm, notify the concealed

 

weapon licensing board in the respondent's county of residence

 

about the existence and contents of the personal protection order.

 

     (e) If the respondent is identified in the pleadings as a

 

department of corrections employee, notify the state department of

 

corrections about the existence of the personal protection order.

     (f) If the respondent is identified in the pleadings as being

 

a person who may have access to information concerning the

 

petitioner or a child of the petitioner or respondent and that

 

information is contained in friend of the court records, notify the

 

friend of the court for the county in which the information is

 

located about the existence of the personal protection order.

 

     (16) The clerk of the court shall inform the petitioner that

 

he or she may take a true copy of the personal protection order to

 

the law enforcement agency designated by the court under subsection

 

(10) to be immediately entered into the law enforcement information

 

network.

 

     (17) The law enforcement agency that receives a true copy of

 

the a personal protection order under subsection (15) or (16) shall

 

immediately and without requiring proof of service enter the

 

personal protection order into the law enforcement information

 

network. as provided by the C.J.I.S. policy council act, 1974 PA

 

163, MCL 28.211 to 28.215.

 

     (18) A personal protection order issued under this section

 

must be served personally or by registered or certified mail,

 

return receipt requested, delivery restricted to the addressee at

 

the last known address or addresses of the individual restrained or

 

enjoined or by any other manner provided in allowed by the Michigan

 

court rules. If the individual restrained or enjoined has not been

 

served, a law enforcement officer or clerk of the court who knows

 

that a personal protection order exists may, at any time, serve the

 

individual restrained or enjoined with a true copy of the order or

 

advise the individual restrained or enjoined about of the existence

of the personal protection order, the specific conduct enjoined,

 

the penalties for violating the order, and where the individual

 

restrained or enjoined may obtain a copy of the order. If the

 

respondent is less than 18 years of age, the parent, guardian, or

 

custodian of that the individual must also be served personally or

 

by registered or certified mail, return receipt requested, delivery

 

restricted to the addressee at the last known address or addresses

 

of the parent, guardian, or custodian. of the individual restrained

 

or enjoined. A proof of service or proof of oral notice must be

 

filed with the clerk of the court issuing the personal protection

 

order. This subsection does not prohibit the immediate

 

effectiveness of a personal protection order or its immediate

 

enforcement under subsections (21) and (22).

 

     (19) The clerk of the court that issued the personal

 

protection order shall immediately notify the law enforcement

 

agency that received the personal protection order under subsection

 

(15) or (16) if either of the following occurs:

 

     (a) The clerk of the court has received receives proof that

 

the individual restrained or enjoined has been served.

 

     (b) The personal protection order is rescinded, modified, or

 

extended by court order.

 

     (20) The law enforcement agency that receives information

 

under subsection (19) shall enter the information or cause the

 

information to be entered into the law enforcement information

 

network. as provided by the C.J.I.S. policy council act, 1974 PA

 

163, MCL 28.211 to 28.215.

 

     (21) Subject to subsection (22), a personal protection order

is immediately enforceable anywhere in this state by any law

 

enforcement agency that has received a true copy of the order, is

 

shown a copy of it, or has verified its existence on the law

 

enforcement information network. as provided by the C.J.I.S. policy

 

council act, 1974 PA 163, MCL 28.211 to 28.215.

 

     (22) If the individual restrained or enjoined has not been

 

served, the a law enforcement agency or officer responding to a

 

call alleging a violation of a personal protection order shall

 

serve the individual restrained or enjoined with a true copy of the

 

order or advise the individual restrained or enjoined about of the

 

existence of the personal protection order, the specific conduct

 

enjoined, the penalties for violating the order, and where the

 

individual restrained or enjoined may obtain a copy of the order.

 

The law enforcement officer shall enforce the personal protection

 

order and immediately enter or cause to be entered into the law

 

enforcement information network that the individual restrained or

 

enjoined has actual notice of the personal protection order. The

 

law enforcement officer also shall file a proof of service or proof

 

of oral notice with the clerk of the court issuing the personal

 

protection order. If the individual restrained or enjoined has not

 

received notice of the personal protection order, the individual

 

restrained or enjoined shall must be given an opportunity to comply

 

with the personal protection order before the law enforcement

 

officer makes a custodial arrest for violation of the personal

 

protection order. The failure to immediately comply with the

 

personal protection order is grounds for an immediate custodial

 

arrest. This subsection does not preclude an arrest under section

15 or 15a of chapter IV of the code of criminal procedure, 1927 PA

 

175, MCL 764.15 and 764.15a, or a proceeding under section 14 of

 

chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.14.

 

     (23) An individual who is 17 years of age or more older and

 

who refuses or fails to comply with a personal protection order

 

under this section is subject to the criminal contempt powers of

 

the court and, if found guilty, shall must be imprisoned for not

 

more than 93 days and may be fined not more than $500.00. An

 

individual who is less than 17 years of age and who refuses or

 

fails to comply with a personal protection order issued under this

 

section is subject to the dispositional alternatives listed in

 

section 18 of chapter XIIA of the probate code of 1939, 1939 PA

 

288, MCL 712A.18. The criminal penalty provided for under this

 

section may be imposed in addition to a penalty that may be imposed

 

for another criminal offense arising from the same conduct.

 

     (24) An individual who knowingly and intentionally makes a

 

false statement to the court in support of his or her petition for

 

a personal protection order is subject to the contempt powers of

 

the court.

 

     (25) A personal protection order issued under this section is

 

also enforceable under chapter XIIA of the probate code of 1939,

 

1939 PA 288, MCL 712A.1 to 712A.32, and section 15b of chapter IV

 

of the code of criminal procedure, 1927 PA 175, MCL 764.15b, and

 

under chapter 17.

 

     (26) A personal protection order issued under this section is

 

also enforceable under chapter 17.

 

     (26) (27) A court shall not issue a personal protection order

that restrains or enjoins conduct described in subsection (1) if

 

any of the following apply:

 

     (a) The respondent is the unemancipated minor child of the

 

petitioner.

 

     (b) The petitioner is the unemancipated minor child of the

 

respondent.

 

     (c) The respondent is a minor child less than 10 years of age.

 

     (27) (28) If the respondent is less than 18 years of age,

 

issuance of a personal protection order under this section is

 

subject to chapter XIIA of the probate code of 1939, 1939 PA 288,

 

MCL 712A.1 to 712A.32.

 

     (28) (29) A personal protection order that is issued before

 

March 1, 1999 is not invalid on the ground that it does not comply

 

with 1 or more of the requirements added by 1998 PA 477.

 

     (29) (30) For purposes of subsection (1)(j), a petitioner has

 

an ownership interest in an animal if 1 or more of the following

 

are applicable:

 

     (a) The petitioner has a right of property in the animal.

 

     (b) The petitioner keeps or harbors the animal.

 

     (c) The animal is in the petitioner's care.

 

     (d) The petitioner permits the animal to remain on or about

 

premises occupied by the petitioner.

 

     (30) In a personal protection order entered under this

 

section, the court may include any of the following:

 

     (a) Provisions regarding custody of a child of either party

 

under the child custody act of 1970, 1970 PA 91, MCL 722.21 to

 

722.31.

     (b) Provisions regarding spousal support for the petitioner or

 

child support for a child of whom the petitioner has custody.

 

     (31) As used in this section:

 

     (a) "Dating relationship" means frequent, intimate

 

associations primarily characterized by the expectation of

 

affectional involvement. Dating relationship does not include a

 

casual relationship or an ordinary fraternization between 2

 

individuals in a business or social context.

 

     (b) "Federal law enforcement officer" means an officer or

 

agent employed by a law enforcement agency of the United States

 

government whose primary responsibility is the enforcement of laws

 

of the United States.

 

     (c) "Neglect" means that term as defined in section 50 of the

 

Michigan penal code, 1931 PA 328, MCL 750.50.

 

     (d) "Personal protection order" means an injunctive order

 

issued by the circuit court or the family division of circuit court

 

restraining or enjoining activity and individuals listed in

 

subsection (1).