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