CHANGING CHILD CUSTODY. Attorney Terry Bankert (810) 235-1970

#FLINT, #GENESEE, #Michigan ISSUE- CHANGING CUSTODY

"Where a current order governs the custody of a minor child, the party moving to modify that order must prove “either proper cause or a change of circumstances sufficient to warrant
reconsideration of the custody decision.” Gerstenschalger v Gerstenschalger, 292 Mich App.654, 657; 808 NW2d 811 (2011)."

Presented here by Terry Bankert Flint Family Law Lawyer, (810 235-1970 www.attorneybankert.com

"[T]o establish “proper cause” necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. The appropriate ground(s) should be
relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child’s well-being. . . . "

" * * *[T]o establish a “change of circumstances,” a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child,
which have or could have a significant effect on the child’s well-being, have materially changed. . . ."

" [T]he evidence must demonstrate something more than
the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. This too will be a determination
made on the basis of the facts of each case, with the relevance of the facts presented being gauged by the statutory best interest factors. [Vodvarka v
Grasmeyer, 259 Mich App 499, 512-514; 675 NW2d 847 (2003)."

"If the movant establishes proper cause or a change in circumstances, the court may modify an established custody order if the court determines that the modification is in the child’s
best interests. MCL 722.27(c); Dailey v Kloenhamer, 291 Mich App 660, 665; 811 NW2d 501
(2011)."

“When a modification would change the established custodial environment of a child, the moving party must show by clear and convincing evidence that it is in the child’s best
interest.” Shade v Wright, 291 Mich App 17, 23; 805 NW2d 1 (2010)."

“If the proposed change does not change the established custodial environment, however, the burden is on the parent
proposing the change to establish, by a preponderance of the evidence, that the change is in the child’s best interests.” Id."

" If the movant does not establish proper cause or a change in
circumstances, the trial court may not revisit the current custody order. Dailey, 291 Mich App at
666-667."

(Source; Unpublished Michigan Court Of Appeals 6/11/19, No 346335)

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CHANGING CUSTODIAL ENVIRONMENT.

MAY A COURT AMEND A CUSTODY OR PARENTING TIME ORDER?

A trial court may modify or amend its previous judgments or orders, including those addressing custody or parenting-time issues, “for proper cause shown or because of a change of circumstances.” MCL 722.27(1)(c). Before doing so, a trial court “must first consider whether the proposed change would modify the established custodial environment.” Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). “

WHAT IS THE ESTABLISHED CUSTODIAL ENVIRONMENT.

“The established custodial environment is the environment in which over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” Id. (quotation marks omitted), citing MCL 722.27(1)(c). “
EXAMPLE OF WHEN THIS ENVIRONMENT NOT CHANGED.

“Whereas minor modifications that leave a party’s parenting time essentially intact do not change a child’s established custodial environment, significant changes do.” Lieberman, 319 Mich App at 89-90 (cleaned up). If parenting-time adjustments “will not change whom the child naturally looks to for guidance, discipline, the necessities of life, and parental comfort, then the established custodial environment will not have changed.” Pierron, 486 Mich at 86. “
EVIDENCE NEED TO CHANGE CUSTODIAL ENVIRONMENT

“The trial court “shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.” MCL 722.27(1)(c). “

“It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents.” MCL 722.27a(1).”

“Whereas the primary concern in child custody determinations is the stability of the child’s environment and avoidance of unwarranted and disruptive custody changes, the focus of parenting time is to foster a strong relationship between the child and the child’s parents.” Shade v Wright, 291 Mich App 17, 28-29; 805 NW2d 1 (2010).” (Source, e-journal #70586, Michigan Court of Appeals unpublished 5/21/19, no.346025.)
Presented here by Flint Divorce Lawyer Terry Bankert Attorney practicing Family Law, Divorce, Child Custody, Parenting time, Support and other Family issues. 1-(810- 235-1970, www.attorneybankert.com No charge for initial appointment.

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UNFOUNDED CPS COMPLAINTS TO STOP VISITATION . (810) 235-1970

WILL UNFOUNDED CPS CALLS CHANGE CHILD CUSTODY?

In a recent Unpublished Michigan Court of Appeals direction , not controlling, was given on this question. On Appeal “ ... defendant suggests that plaintiff’s alleged use of innocent agents to file multiple CPS reports against him was not given sufficient weight and should have warranted a change in custody, we disagree.”

( source:  Unpublished M.A. Case 5/2/19 No. 345501, Alger County Family Division LC 14-007383-DC)

AN ALLEGATION DOES NOT MEAN THEY ARE TRUE.

The Court stated  “[a] court need not give equal weight to all the factors, but may consider the relative weight of the factors as appropriate to the circumstances.” Sinicropi, 273 Mich App at 184. The trial court did so here. “

FOUR CPS COMPLAINTS INCLUDING SEXUAL ABUSE BEFORE COURT DATES.

“At the hearing, defendant testified that at least four CPS complaints were filed against him, and that three of those complaints involved sexual abuse allegations related to the child.

WAS PLAINTIFF JUST TRYING TO BLOCK DEFENDANTS PARENTING TIME?

Defendant’s counsel argued that CPS investigations were being filed before court hearings and being filed through agencies as part of plaintiff’s effort to keep the child from visitation. “

CLAIMS THAT NEW SPOUSE ABUSING TO CHILD.

“Additionally, one of the CPS investigators charged with investigating an April 2018 complaint, which alleged that defendant’s wife struck the child 14 times, testified that she felt that there might have been some coaching occurring with the child because his answers were inconsistent.”

“ A copy of that CPS investigation report was presented to the trial court. Plaintiff testified at the hearing that she had not made any of the claims to CPS. She indicated that the reports were made by the child’s primary care physician, an emergency room doctor, a police officer, the child’s psychologist, and an unknown person “downstate.” “

“
“Plaintiff acknowledged that she took the child to the medical appointments and spoke with the police officer. Plaintiff indicated that she was unaware of the psychologist’s report to CPS until the investigation was opened and CPS arrived at her home.”

“ Plaintiff denied that she ever told the child what to say to CPS. In fact, plaintiff opined that the child was making allegations to avoid going to parenting time, and that “he was making some of the stuff up.” “

“Plaintiff also testified that she did not believe the child’s report that defendant’s wife struck him. The trial court informed the parties that it had read and considered the CPS report prior to rendering its decision.”

NONE OF THE COMPLAINTS WERE FOUND TO BE TRUE

“ In its analysis of best-interest factor (l), the trial court noted that repeated CPS allegations “certainly” favored defendant because none were substantiated. The trial court showed concern for the minor’s dishonesty during his interview, and assigned “more responsibility” to plaintiff for triggering the investigations, but could not place responsibility on her for fabricating the information going into the investigations.”

BEST INTEREST FACTOR L

“ Ultimately, the trial court concluded that for factor (l), “more things lean towards [defendant],” but there were also aspects that supported the child’s current home environment. Ultimately, the trial court concluded that the parties were equal “on almost all factors.” Plaintiff was favored in factor (d) and some aspects of factor (l), and defendant was slightly favored on factor (e) and some aspects of factor (l).”

“ The trial court indicated that after consideration of the factors, defendant ultimately failed to convince the court by clear and convincing evidence that a change in custody was in the child’s best interests. It is clear from the record that the trial court adequately considered and addressed the CPS allegations and investigations in reaching its conclusions.”

Presently here as an example of how  CPS complaints are handled. By Terry Bankert Flint Divorce Attorney (810) 235-1970 www.attorneybankert.com

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SO YOU WANT CHANGE CHILD CUSTODY! WHAT DIO YOU DO?

THE CHILD CUSTODY ORDER MUST BE CHANGED ! What do I do?

A common theme clients come to me with after a divorce judgement is in place involves dissatisfaction with the  award of physical and legal custody in their divorce. Usually I was not involved in the original action.

#Flint #Divorce

I am a Family Law Flint Divorce child custody attorney. Call 235-1970 for Terry Bankert if you have additional questions.

WHAT IS THE UNDERLYING ORDER CONCERNING CHILD CUSTODY.

Some judgements done with the best of intentions just will not work. The cause varies. Court want child custody decisions to be hard to change. My analysis usually begins by asking what is the current order of custody and what is different since that order was entered?

ISSUES YOU NEED TO KNOW IN YOUR ATTEMPT TO CHANGE CUSTODY

Under MCL 722.27(1)(c), before modifying a custody order, the court must consider three issues:

1. YOU the moving party has met the initial burden of establishing either “proper cause” or a “change of circumstances;”
2. Whether there is an established custodial environment; which will establish the burden of proof or how hard your task will be and
3. Whether the modification is in the best interests of the child. [1]

WHAT HAVE YOU SAID IS THE REASON TO CHANGE CUSTODY. WHAT IS YOUR  PROPER CAUSE OR CHANGE IN CIRCUMSTANCES.

THE FIRST QUESTION THE JUDGE MUST ANSWER.

The threshold question in any change of custody is whether the moving party has established proper cause or change of circumstances. MCL 722.27(1)(c); Vodvarka v. Grasmeyer, 259 Mich App. 499, 675 NW2d 847 (2003).[1]

YOU WILL HAVE THE BURDEN OF PROOF IS YOU WANT TO CHANGE  CHILD CUSTODY.

The moving party has the burden of proof by a preponderance of the evidence to establish that either proper cause or a change of circumstances exists. Vodvarka, supra. at 509. [1]

WHAT REASONS FOR THE CHANGE IN CUSTODY WILL THE JUDGE THINK ARE PROPER CAUSE.

Proper cause means one or more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.Vodvarka, supra. at 511. [1]

THE ATTORNEY OPPOSING YOUR CHANGE WILL ASK FOR A VODVARKA HEARING .

1. In Vodvarka, the Court of Appeals held that grounds for proper cause should be relative to the twelve best interest factors contained in MCL 722.23(a)–(l). The grounds presented should be “legally sufficient,” i.e., they must be of a magnitude to have a significant effect on the child’s well-being to the extent that revisiting the custody order would be proper. Vodvarka, supra. at 512. [1]

EXAMPLES OF CHANGE IN CIRCUMSTANCES

1. In order for there to be a change of circumstances, the moving party must show that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed. Again, not just any change will suffice, for over time there will always be changes in a child’s environment, behavior and well-being. Instead, the evidence must demonstrate something more than the normal life changes (both good and bad) that occur in the life of a child, and there must be at least some evidence that material changes have had or will almost certainly have an effect on the child.Vodvarka, supra. at 513–514. [1]
2. Evidence of the circumstances existing at the time of and before the entry of the prior custody order will be relevant for comparison purposes, but the change of circumstances must have occurred after entry of the last custody order. The moving party cannot rely on facts that existed before entry of the custody order to establish a “change” of circumstances. Vodvarka, supra. at 514. [1]
3. A change in economic circumstances, standing alone, is insufficient to warrant revisiting a previously entered child custody order. Further, those concerns are more appropriately addressed through an increase in the child support paid to the custodial parent following a properly filed motion to modify child support. A decline in child’s grades was insufficient to constitute a change in circumstances sufficient to warrant modification of parties’ joint custody arrangement to change sole physical custody from mother to father; child was not in danger of failing any subject, and the decline in child’s grades could have been attributable to child’s change in schools or the different educational materials. Corporan v. Henton, 282 Mich. App. 599, 766 N.W.2d 903 (2009). [1]
4. The 2006 judgment of divorce (JOD) contained clause that purported to allow the parties child to be moved out of Michigan without court approval and that the provisions of MCL 722.31 do not apply as the plaintiff mother had sole legal custody. Shortly after the entry of the JOD, the mother moved to Toronto, Canada. The father was still afforded parenting time, although less frequently than before. Father filed a motion to modify legal custody and to restore his parenting time. The trial court held that the clauses in the JOD allowing movement out of the state of Michigan were unenforceable and that a change in legal custody and parenting time was in the best interest of the child claiming the father met this burden by clear and convincing evidence. The Court of Appeals reversed, holding that a mere change in residence is not enough to qualify as a change in circumstance or proper cause. Absent an alteration in an established custodial environment, changing residence is not enough. Brausch v. Brausch, 283 Mich.App. 339; 770 NW2d 77 (2009).[1]
5. In Gerstenschlager v. Gerstenschlager, 292 Mich App 654; 808 NW2d 811 (2011) the trial court found there was a change of circumstances existed where defendant had taken in boarders and the child was getting older. The Court of Appeals reversed and remanded to the Trial court, finding that the fact that a child is growing up, the fact that a child has started high school, and the fact that the child faces scheduling changes relating to school and extra-curricular activities “are the type of normal life changes that occur during a child’s life and that do not warrant a change in the child’s custodial environment.” The Court also found that the evidence suggested that the boarders’ presence in the house was a matter of minimal consequence to the child. [1]

WHAT IS AN ESTABLISHED CUSTODIAL ENVIRONMENT

1. The definition of an established custodial environment is found in MCL 722.27(1)(c), which states as follows:
2. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. [1]
3. The Court must determine whether an established custodial environment exists before it makes a determination regarding the child’s best interests in a custody proceeding. Whether an established custodial environment exists is a question of fact. Mogle v. Scriver, 241 Mich App 192, 197; 614 NW2d 696 (2000).[1]
4. An established custodial environment, for the purposes of determining an appropriate child custody arrangement, is one of significant duration in which the relationship between the custodian and child is marked by qualities of security, stability and permanence; however, an established custodial environment need not be limited to one household, it can exist in more than one home.Mogle, supra. at 197. See also MCL 722.27(1)(c).[1]
5. Custody orders, by themselves, do not establish a custodial environment. The court will look to the actual circumstances. Bowers v. Bowers, 198 Mich App 320, 497 NW2d 602 (1993).[1]
6. In Shann v. Shann, 293 Mich App 302, 809 NW2d 435 (2011) the Court of Appeals held that the fact that CPS removed the child from the home is in and of itself sufficient evidence of a change in circumstances to warrant a trial court to consider a change of custody.[1]
7. The Trial Court granted Plaintiff a change of domicile from Plymouth to Windsor (less than 100 miles). The move would result in the loss of Defendant’s weeknight visits. The Court of Appeals affirmed the trial court’s ruling that the established custodial environment would not change if Defendant were awarded additional weekend visitation, which would allow him to have the same number of overnights. The Court also noted that Defendant could attend the child’s school functions. Gagnon v. Glowacki, 295 Mich App 557, 815 NW2d 141 (2012).[1]

WHAT DO YOU HAVE TO PROVE AND BY HOW MUCH.

The court will take testimony and accept evidence that will be used in a Best Interest analysis concerning your case.  The Best Interest REFERS TO A  State Statute MCL 722.23 arranged by  alphabetical letter a-l, The court will weigh and measure each element. But since the  the system does not like to change custody your burden may be high.  

WHAT IS THE STANDARD OF PROOF.

The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. MCL 722.27(1)(c). If no established custodial environment exists, custody may be modified by showing that a change would be in the best interests of the child by a preponderance of the evidence. Hall v. Hall, 156 Mich App 286, 289; 401 NW2d 353 (1986).[1]

The best interests of the child is defined in MCL 722.23, which states:

As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular child custody dispute.

This is just an overview. I would not suggest doing this without an attorney.

Terry Bankert Flint Child Custody Lawyer 810-235-1970.

[1]

Handling Child Custody, Child Support & Parenting Time

Modification of Custody

Hon. Linda S. Hallmark, Oakland County Probate Court

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DO YOU WANT YOUR CHILDREN TO LIVE WITH YOU?

When you feel your children would be better of living with you rather than your ex spouse who has child custody what can you do? #childcustody

PROVE A PROPER CAUSE OR  CHANGE IN CIRCUMSTANCES

There are several important steps the first discussed here is a court determination that a” change of circumstances exists.”

Additional questions about change in custody can be found by contacting  Flint Divorce Attorney Terry R. Bankert 1000 Beach St. Flint MI 810-235-1970 or terry@attorneybankert.com #flintdivorce

A RECENT DENIAL OF A FATHER'S MOTION TO CHANGE CUSTODY

In a recent Michigan Court of Appeals Case, looking at Kent Circuit Court,LC No. 12-005913-DM case Defendant father  appeals as of right a May 13, 2014 order, with several other issues, denying his motion for change of custody in regard to the parties’ minor child,

TO DETERMINE CHANGE OF CIRCUMSTANCES REQUIRES IS WHAT IS COMMONLY CALLED A VODVARKA HEARING

In Child custody modification of a custody order the controlling state statute is; MCL 722.27(1)(c) while the controlling case law is Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). “

When the Michigan Court of Appeals reviews a child custody modification of a County trial court decision, here ,Kent Circuit Court,LC No. 12-005913-DM,  to deny a motion for change in custody   it determines  whether the trial court's finding that there was no "change of circumstances" or "proper cause" was against the great weight of the evidence; MCL 722.28;[1]

The Michigan Court of Appeals recently  held that the trial court,Kent Circuit Court,LC No. 12-005913-DM,  did not err by denying the defendant-father's motion for change of custody of the parties' minor child.[1]

The Michigan Court of Appeals held that the trial court's, In the Kent case,  finding that there was no change of circumstances or proper cause to support a change in custody was not against the great weight of the evidence.[1]

"None of the allegations raised by father demonstrated the type of circumstances that would have had a significant effect on the child's life or well-being.[1]

 HOW A CHANGE OF CUSTODY DECISION IS MADE. THE FIRST HURDLE .

A child custody award may only be modified after there has been “proper cause

shown or because of change of circumstances . . . .” MCL 722.27(1)(c). “[1]

The movant, the parent that wants a change,  of course has the burden of proving by a preponderance of the evidence that either proper cause or a change of circumstances exists . . . .” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). “ [1]

Proper cause” sufficient to warrant revisiting a custody order “means one or

more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.” Id. at 511.[1]

THE COURT LOOKS AT FACTS THAT HAVE CHANGED  SINCE THE ENTRY OF THE LAST ORDER  THAT ARE IMPORTANT OR MATERIAL TO THE CHILDS BEST INTEREST

To demonstrate a change of circumstances meriting consideration of a custody change, “a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially ]changed.” Id. at 513.  [1]

“[T]he evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.” Id. at 513-514. [1]

In the Kent Circuit Court,LC No. 12-005913-DM case the court did not find the required change in circumstances

As stated above a child-custody award may only be modified after there has been “proper cause shown or because of change of circumstances . . . .” MCL 722.27(1)(c).  [2]

The purpose of the proper cause or change-of-circumstances requirement is “to ‘erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.’” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003), [2]

None of the allegations raised by father demonstrated the type of circumstances that would have had a significant effect on the child’s life or well-being. See Vodvarka, 259 Mich App at 512-513.[1]

At most, father’s allegations amount to nothing more than normal life changes for the child or minor inconveniences to father in his attempts to interact with mother. See id. at 512-514.[1]

While it is true that “a stipulation by the parties regarding a matter of law is not binding

on a court,” see Staff v Johnson, 242 Mich App 521, 529; 619 NW2d 57 (2000),the Michigan Court of Appeals  cannot characterize the factually based change-of-circumstances issue as purely a “matter of law.” In Vodvarka, 259 Mich App at 512, the Court stated, “Often . . ., the facts alleged to constitute proper cause or a change of circumstances will be undisputed, or the court can accept as true the

facts allegedly comprising proper cause or a change of circumstances, and then decide if they are legally sufficient to satisfy the standard.”[2]

In Washtenaw Circuit Court LC No. 13-001155-DC  the consent order did not reflect a clear temporary arrangement. Instead, it explicitly stated, “the parties stipulate that the parties minor child shall attend kindergarten in the State of Michigan until there is a determination of change of custody” (emphasis added).[2]

The parties stipulated on July 29, 2013, that there was, in fact, a change of circumstances, and the legal standard was satisfied. Vodvarka, 259 Mich App512.[2]

Under all the circumstances, the Michigan Court of Appeals  found “we conclude that the Washtenaw Circuit Court LC No. 13-001155-DC  ultimately erred in finding no change of circumstances sufficient to warrant a revisiting of the original custody order.[2]

If you have additional questions about change in custody please contact Flint Divorce Lawyer Terry R. Bankert 1000 Beach ST. Flint MI 810-235-1970 or terry@attorneybankert.com

Source [1]

STATE OF MICHIGAN COURT OF APPEALS,Before: M.J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.PER CURIAM.,UNPUBLISHED November 20, 2014

v No. 322082 Kent Circuit Court,LC No. 12-005913-DM

Source [2]

STATE OF MICHIGAN COURT OF APPEALS

UNPUBLISHED November 18, 2014 v No. 320871

Washtenaw Circuit Court LC No. 13-001155-DC

e-Journal Number: 58667

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(PPO) Personal Protection Orders

When you are in a domestic relationship  a  PPO is appropriate if  you can demonstrate that  you have  been assaulted or threatened with harm by the  your partner  MCL 600.2950.

Presented here by Genesee Flint Divorce Attorney, Lawyer Terry Bankert 810-235-1970

Specifically, the Judge must issue a PPO if it is  found that there is  reasonable cause to believe that  your partner  might commit one of the prohibited acts. MCL 600.2950(4).

When you file a PPO you must include specific incidents of assaults or threats and describe the injuries resulting from the specific incidents of abuse.

We know that Emotional abuse can be as devastating as physical battering; therefore, such incidents should be included in your petition.

In ruling on the motion, your judge  must consider testimony, documents, and other evidence and whether  your partner previously committed or threatened to commit acts of violence. Id.

You should ask for entry of the order ex parte if notice to  your partner  might precipitate additional harm.

To justify a request for an ex parte PPO, the you must clearly allege facts that support the conclusion 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 the PPO can be issued.” MCL 600.2950(12).

Most domestic violence survivors can easily meet this standard with specific reference to their partners  past violence and allegations that prior notice will result in the partners further violence or coercion of  you to dismiss the petition.

The ex parte provisions of the PPO statute were declared constitutional in Kampf v Kampf, 237 Mich App 377, 603 NW2d 295 (1999).

The PPO petition should focus on the imminence of the actual or threatened harm and the irreparable injury  you will suffer if the PPO is not granted.

The attorney representing  you must allege facts, not merely generalizations. The petition must give persuasive reasons why  you need the protection of a PPO.

For example, a threatened harm could be a promise to kill  you, to beat  you senseless, or to never allow  you to sleep. A completed harm might be sexual assault, punching, kicking, slapping, choking, or stabbing  you. Especially chilling are the acts designed to defeat criminal detention by inflicting maximum pain with minimal evidence of physical injury, such as pulling hair and squeezing or bending limbs and fingers. Completed harm could also include frequent or late-night telephone calls at home or at work, following the victim, slashing car tires, banging on or breaking into doors and windows at the victim’s home, burning the victim’s house, or torturing or killing pets.

A pattern of past and an expectation of future harm and the degree of seriousness of the harm are essential concepts. To establish such a pattern, the complaint should recite the specific dates that incidents occurred, along with the extent of bodily harm, the extent of property damage, the explicit content of threats, whether medical treatment was necessary, whether any of the couple’s children were present during the assault or were in danger, and whether the police were involved.

Repeated minor offenses or at least one serious incident coupled with indications of continuing trouble may justify issuance of a PPO. By the same token, one isolated incident or a pattern that ended some time ago (without an explanation of why a PPO is needed now) may not be sufficient.

There are few reported appellate decisions that address domestic relationship PPOs and the facts that are sufficient to justify their issuance. In Kampf, allegations of verbal abuse, spousal rape, bruising, pushing, and shoving were sufficient. In Pickering v Pickering, 253 Mich App 694, 702, 659 NW2d 649 (2002), partner’s threats to break down a door that you had braced shut, “rage” in partner’s voice, and partner’s use of a yardstick to probe underneath the braced door were sufficient to authorize a PPO. However, the judge of appeals noted that the facts in Pickering made the issuance and continuation of the PPO a “close call.” 253 Mich App at n3. In Jannaro v Schamp, No 210740, 1999 Mich App LEXIS 2235 (Dec 21, 1999) (unpublished), partner’s use of abusive language, violent behavior, and threats to kill you and her family were sufficient to justify a PPO.

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