ICLE Homepage | Other New and Amended MCRs
August 11, 1997
95-07
Amendment of Rules 3.201, 3.207, and
8.117 of the Michigan Court Rules;
Addition of Subchapter 3.700
___________________________________
On order of the Court, notice of proposed amendments to
Michigan Court Rules 3.201, 3.207, and 8.117 and the addition of
Rule 3.701 having been provided, and consideration having been
given to the comments received in response to that notice, the
following amendments to MCR 3.201, 3.207, and 8.117 and the
addition of subchapter 3.700 is adopted effective September 1,
1997.
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been
deleted.
Bold text indicates new text.
The rules are amended as follows:
Rule 3.201 Applicability of Rules
(A) Subchapter 3.200 applies to
(1) actions for divorce, separate maintenance, the
annulment of marriage, the affirmation of marriage,
paternity, family support under MCL 552.451 et seq.;
MSA 25.222(1) et seq., [injunctive relief under MCL
600.2950; MSA 27A.2950 and MCL 600.2950a; MSA
27A.2950a,] the custody of minors under MCL 722.21
et seq.; MSA 25.312(1) et seq., and visitation with
minors under MCL 722.27b; MSA 25.312(7b), and to
(2) [Unchanged.]
(B) - (C) [Unchanged.]
Rule 3.207 Ex Parte, Temporary Orders, and Protective Orders
(A) Scope of Relief. The court may issue ex parte and temporary
orders with regard to any matter within its jurisdiction,
and may issue protective orders against domestic violence as
provided in [subrule (D)] subchapter 3.700.
(B) - (C) [Unchanged.]
[(D) Protective Orders. The court may issue a protective
order against domestic violence pursuant to MCL
600.2950; MSA 27A.2950 or MCL 552.14; MSA 25.94 on the
basis of violence or threats of violence. The order
may not be made mutual unless issued on the basis of
violence or threats of violence by both parties.]
SUBCHAPTER 3.700 PERSONAL PROTECTION PROCEEDINGS
Rule 3.701 Applicability of Rules; Forms
(A) Scope. Except as provided by this subchapter of rules and
the provisions of MCL 600.2950; MSA 27A.2950 and MCL
600.2950a; MSA 27A.2950(1), actions for personal protection
for relief against domestic violence or stalking are
governed by the Michigan Court Rules.
(B) Forms. The state court administrator shall approve forms
for use in personal protection act proceedings. The forms
shall be made available for public distribution by the clerk
of the circuit court.
MCR 3.702 Definitions
When used in this subchapter, unless the context otherwise
indicates:
(1) "personal protection order" means a protection order as
described under MCL 600.2950; MSA 27A.2950 and MCL
600.2950a; MSA 27A.2950(1);
(2) "petition" refers to a pleading for commencing an
independent action for personal protection;
(3) "petitioner" refers to the party seeking protection;
(4) "respondent" refers to the party to be restrained;
(5) "existing action" means an action in this court or any
other court in which both the petitioner and the
respondent are parties; existing actions include, but
are not limited to, pending and completed domestic
relations actions, criminal actions, other actions for
personal protection orders.
Rule 3.703 Commencing a Personal Protection Proceeding
(A) Filing. A personal protection proceeding is commenced by
filing a petition with a court. There are no fees for
filing a personal protection order and no summons is issued.
(B) Petition in General. The petition must
(1) be in writing;
(2) state with particularity the facts on which it is
based;
(3) state the relief sought and the conduct to be
restrained;
(4) state whether an ex parte order is being sought; and
(5) be signed by the party or attorney as provided in MCR
2.114. The petitioner may omit his or her residence
address from the documents filed with the court, but
must provide the court with a mailing address.
(C) Other Pending Actions; Order, Judgments.
(1) The petition must specify whether there are any other
pending actions in this or any other court, or orders
or judgments already entered by this or any other court
affecting the parties, including the name of the court
and the case number, if known.
(a) If the petition is filed in the same court as a
pending action or where an order or judgment has
already been entered by that court affecting the
parties, it shall be assigned to the same judge.
(b) If there are pending actions in another court or
orders or judgments already entered by another
court affecting the parties, the court should
contact the court where the pending actions were
filed or orders or judgments were entered, if
practicable, to determine any relevant
information.
(2) If the prior action resulted in an order providing for
continuing jurisdiction of a minor, and the new action
requests relief with regard to the minor, the court
must comply with MCR 3.205.
(D) Venue. The petitioner may file a personal protection action
in any county in Michigan regardless of residency.
(E) Minor or Legally Incapacitated Person.
(1) If the petitioner is a minor under 17 years of age or
a legally incapacitated person, the petitioner may
proceed through a next friend. The petitioner shall
certify that the next friend is not disqualified by
statute and that the next friend is an adult.
(2) Unless the court determines appointment is necessary,
the next friend may act on behalf of the minor or
legally incapacitated person without appointment.
However, the court shall appoint a next friend if the
minor is less than 14 years of age. The next friend is
not responsible for the costs of the action.
(F) Request for Ex Parte Order. If the petition requests an ex
parte order, the petition must set forth specific facts
showing that immediate and irreparable injury, loss, or
damage will result to the petitioner from the delay required
to effect notice or from the risk that notice will itself
precipitate adverse action before an order can be issued.
Rule 3.704 Dismissal
Except as specified in 3.705(A)(6) and (B), an action for a
personal protection order may only be dismissed upon motion by
the petitioner prior to the issuance of an order.
Rule 3.705 Issuance of Personal Protection Orders
(A) Ex Parte Orders.
(1) The court must rule on a request for an ex parte order
within 24 hours of the filing of the petition.
(2) If it clearly appears from specific facts shown by
verified complaint, written petition, or affidavit that
the petitioner is entitled to the relief sought, an ex
parte order shall be granted if 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. A permanent
record or memorandum must be made of any nonwritten
evidence, argument or other representations made in
support of issuance of an ex parte order.
(3) An ex parte order is valid for not less than 182 days,
and must state its expiration date.
(4) If an ex parte order is entered, the petitioner shall
serve the petition and order as provided in MCR 3.706
(D). However, failure to make service does not affect
the order's validity or effectiveness.
(5) If the court refuses to grant an ex parte order, it
shall state the reasons in writing and shall advise the
petitioner of the right to request a hearing as
provided in subrule (B). If the petitioner does not
request a hearing within 21 days of entry of the order,
the order denying the petition is final. The court
shall not be required to give such notice if the court
determines after interviewing the petitioner that the
petitioner's claims are sufficiently without merit that
the action should be dismissed without a hearing.
(B) Hearings.
(1) The court shall schedule a hearing as soon as possible
in the following instances, unless it determines after
interviewing the petitioner that the claims are
sufficiently without merit that the action should be
dismissed without a hearing:
(a) the petition does not request an ex parte order;
or
(b) the court refuses to enter an ex parte order and
the petitioner subsequently requests a hearing.
(2) The petitioner shall serve notice of the hearing on the
respondent along with the petition as provided in MCR
2.105(A). One day before the hearing is deemed
sufficient notice to the respondent.
(3) The hearing shall be held on the record.
(4) The petitioner must attend the hearing. If the
petitioner fails to attend the hearing, the court may
adjourn and reschedule the hearing or dismiss the
petition.
(5) If the respondent fails to appear at a hearing on the
petition and the court determines the petitioner made
diligent attempts to serve the respondent, whether the
respondent was served or not, the order may be entered
without further notice to the respondent if the court
determines that the petitioner is entitled to relief.
(6) At the conclusion of the hearing the court shall state
the reasons for granting or denying a personal
protection order on the record and enter an appropriate
order. In addition, the court shall state the reasons
for denying a personal protection order in writing.
Rule 3.706 Orders
(A) Form and Scope of Order. An order granting a personal
protection order must include the following:
(1) A statement that the personal protection order has been
entered, listing the type or types of conduct enjoined.
(2) A statement that the personal protection order is
effective when signed by the judge and is immediately
enforceable.
(3) A statement that violation of the personal protection
order will subject the individual restrained or
enjoined to immediate arrest and the civil and criminal
contempt powers of the court, and that if the
respondent is found guilty of criminal contempt, he or
she shall be imprisoned for not more than 93 days and
may be fined not more than $500.00.
(4) An expiration date stated clearly on the face of the
order.
(5) A statement that the personal protection order is
enforceable anywhere in Michigan by any law enforcement
agency.
(6) Identification of the law enforcement agency designated
by the court to enter the personnel protection order
into the law enforcement information network.
(7) 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, and that motion forms and filing instructions
are available from the clerk of the court.
(B) Mutual Orders Prohibited. A personal protection order may
not be made mutual.
(C) Existing Custody and Parenting Time Orders.
(1) Contact With Court Having Prior Jurisdiction. The
court issuing a personal protection order must contact
the court having jurisdiction over the parenting time
or custody matter as provided in MCR 3.205, and where
practicable, the judge should consult with that court,
as contemplated in MCR 3.205(C)(2), regarding the
impact upon custody and parenting time rights before
issuing the personal protection order.
(2) Conditions Modifying Custody and Parenting Time
Provisions. If the respondent's custody or parenting
time rights will be adversely affected by the personal
protection order, the issuing court shall determine
whether conditions should be specified in the order
which would accommodate the respondent's rights or
whether the situation is such that the safety of the
petitioner and minor children would be compromised by
such conditions.
(3) Effect of Personal Protection Order. A personal
protection order takes precedence over any existing
custody or parenting time order until the personal
protection order has expired, or the court having
jurisdiction over the custody or parenting time order
modifies the custody or parenting time order to
accommodate the conditions of the personal protection
order.
(a) If the respondent or petitioner wants the
existing custody or parenting time order
modified, the respondent or petitioner must file
a motion with the court having jurisdiction of
the custody or parenting time order and request a
hearing. The hearing must be held within 21 days
after the motion is filed.
(b) Proceedings to modify custody and parenting time
orders are subject to subchapter 3.200.
(D) Service. The petitioner shall serve the order on the
respondent as provided in MCR 2.105(A). On an appropriate
showing, the court may allow service in another manner as
provided in MCR 2.105(I). Failure to serve the order does
not affect its validity or effectiveness.
(E) Oral Notice. If oral notice of the order is made by a law
enforcement officer as described in MCL 600.2950(21); MSA
27A.2950(21) or MCL 600.2950a(18); MSA 27A.2950(1)(18),
proof of the notification must be filed with the court by
the law enforcement officer.
Rule 3.707 Modification or Recision of Order
(A) Time for Filing and Service.
(1) Either party may file a motion to modify or rescind the
personal protection order and request a hearing for
good cause at any time after the personal protection
order is issued. The petitioner may include in such a
motion a request to extend the effectiveness of the
order by setting a new expiration date. The motion
must be filed with the court that issued the personal
protection order. A motion to extend the effectiveness
of the order must be filed at least 28 days before the
expiration date in the order.
(2) The moving party shall serve the motion to modify or
rescind the order and the notice of hearing at least 7
days before the hearing date as provided in MCR
2.105(A)(2) to the mailing address provided to the
court. On an appropriate showing, the court may allow
service in another manner as provided in MCR 2.105(I).
(B) Hearing on the Motion. The court must schedule and hold a
hearing on a motion to modify or rescind a personal
protection order within 14 days of the filing of the motion.
(C) Notice of Modification or Recision. If a personal
protection order is modified or rescinded the clerk must
immediately notify the law enforcement agency specified in
the personal protection order of the change. A modified or
rescinded order must be served as provided in MCR 2.107.
Rule 3.708 Contempt Proceedings for Violation of Personal
Protection Orders
(A) In General.
(1) A personal protection order is enforceable under MCL
600.2950(22); MSA 27A.2950(22), MCL 600.2950a(19); MSA
27A.2950(1)(19), MCL 764.15b; MSA 28.874(2), and MCL
600.1701 et seq.; MSA 27A.1701 et seq.
(2) A contempt proceeding brought in a court other than the
one that issued the personal protection order shall be
entitled "In the Matter of Contempt of [Respondent]".
The clerk shall provide a copy of the contempt
proceeding to the court that issued the personal
protection order.
(3) If the contempt proceeding involves a minor respondent,
any detention of the minor, whether before or after
sentencing, must be maintained separately from adult
prisoners to prevent any verbal, visual, or physical
contact with an adult prisoner.
(B) Motion to Show Cause.
(1) Filing. If the respondent violates the personal
protection order, the petitioner may file a motion,
supported by appropriate affidavit, to have the
respondent found in contempt. If the petitioner's
motion and affidavit establish a basis for a finding of
contempt, the court shall either:
(a) order the respondent to appear at a specified
time to answer the contempt charge; or
(b) issue a bench warrant for the arrest of the
respondent.
(2) Service. The petitioner shall serve the motion to show
cause and order as provided in MCR 2.107 at least 7
days before the show cause hearing.
(C) Arrest. If the respondent is arrested for violation of a
personal protection order as provided in MCL 764.15b(1); MSA
28.874(2)(1), the court in the county where the arrest is
made shall proceed as provided in MCL 764.15b(2)-(5); MSA
28.874(2)(2)-(5), except as provided in this rule.
(D) Appearance or Arraignment; Advice to Respondent. At the
respondent's first appearance before the court, whether for
arraignment under MCL 764.15b; MSA 28.874(2), enforcement
under MCL 600.2950; MSA 27A.2950 or MCL 600.2950a; MSA
27A.2950(1) or MCL 600.1701; MSA 27A.1701, or otherwise, the
court must:
(1) ensure that the respondent receives written notice of
the alleged violation,
(2) advise the respondent of the right to contest the
charge at a contempt hearing,
(3) advise the respondent that he or she is entitled to a
lawyer's assistance at the hearing and, if the court
determines it might sentence the respondent to jail,
that the court will appoint a lawyer at public expense
if the individual wants one and is financially unable
to retain one,
(4) if requested and appropriate, appoint a lawyer,
(5) set a reasonable bond pending a hearing of the alleged
violation.
(6) take a guilty plea as provided in subrule (E) or
schedule a hearing as provided in subrule (F).
(E) Pleas of Guilty. The respondent may plead guilty to the
violation. Before accepting a guilty plea, the court,
speaking directly to the respondent and receiving the
respondent's response, must
(1) advise the respondent that by pleading guilty the
respondent is giving up the right to a contested
hearing and, if the respondent is proceeding without
legal representation, the right to a lawyer's
assistance as set forth in subrule (D)(3).
(2) advise the respondent of the maximum possible jail
sentence for the violation,
(3) ascertain that the plea is understandingly,
voluntarily, and knowingly made, and
(4) establish factual support for a finding that the
respondent is guilty of the alleged violation.
(F) Scheduling or Postponing Hearing.
(1) Following the respondent's appearance or arraignment,
the court shall do the following:
(a) Set a date for the hearing at the earliest
practicable time except as required under MCL
764.15b; MSA 28.874(2).
(i) The hearing of a respondent being held in
custody for an alleged violation of a
personal protection order must be held
within 72 hours after the arraignment or
the court must order the respondent
released from custody pending the hearing.
(ii) If the respondent is released from custody
pending the hearing and the court
determines that the release will not
reasonably ensure the safety of the
individuals named in the personal
protection order, the court may order
release on condition that the respondent
continue to comply with the personal
protection order or any other condition
specified in MCR 6.106(D). The release
order shall also comply with MCL 765.6b;
MSA 28.893(2).
(iii) If the alleged violation is based on a
criminal offense that is a basis for a
separate criminal prosecution, upon motion
of the prosecutor, the court may postpone
the hearing for the outcome of that
prosecution.
(2) Notify the prosecuting attorney of a criminal contempt
proceeding.
(3) Notify the respondent and his or her attorney, if any,
of the contempt proceeding and direct the party to
appear at the hearing and give evidence on the charge
of contempt.
(G) Prosecution After Arrest. In a criminal contempt proceeding
commenced under MCL 764.15b; MSA 28.874(2), the prosecuting
attorney shall prosecute the proceeding unless the
petitioner retains his or her own attorney for the criminal
contempt proceeding.
(H) The Violation Hearing.
(1) Jury. There is no right to a jury trial.
(2) Conduct of the Hearing. The respondent has the right
to be present at the hearing, to present evidence, and
to examine and cross-examine witnesses.
(3) Evidence; Burden of Proof. The rules of evidence apply
to both criminal and civil contempt proceedings. The
petitioner or the prosecuting attorney has the burden
of proving the respondent's guilt of criminal contempt
beyond a reasonable doubt and the respondent's guilt of
civil contempt by a preponderance of the evidence.
(4) Judicial Findings. At the conclusion of the hearing,
the court must find the facts specially, state
separately its conclusions of law, and direct entry of
the appropriate judgment. The court must state its
findings and conclusions on the record or in a written
opinion made a part of the record.
(5) Sentencing.
(a) if the respondent pleads or is found guilty of
criminal contempt, the court shall impose a
sentence of incarceration for no more than 93
days and may impose a fine of not more than
$500.00.
(b) if the respondent pleads or is found guilty of
civil contempt, the court shall impose a fine or
imprisonment as specified in MCL 600.1715 and
600.1721; MSA 27A.1715 and 27A.1721.
In addition to such a sentence, the court may impose
other conditions to the personal protection order.
Rule 3.709 Appeals
(A) Rules Applicable. Except as provided by this rule, appeals
must comply with subchapter 7.200.
(B) From Entry of Personal Protection Order.
(1) Either party has an appeal of right from
(a) an order granting or denying a personal
protection order after a hearing under subrule
3.705(B)(6), or
(b) the ruling on respondent's first motion to
rescind or modify the order if an ex parte order
was entered.
(2) Appeals of all other orders are by leave to appeal.
(C) From Finding after Violation Hearing.
(1) The respondent has an appeal of right from a sentence
for criminal contempt entered after a contested
hearing.
(2) All other appeals concerning violation proceedings are
by application for leave.
Rule 8.117 Case Classification Codes
(A) [Unchanged.]
(B) Case-Type Code List; Circuit and Recorder's Court. The
following case-type code list must be used as provided in
subrule (A). The bracketed letters are the case codes.
(1) - (3) [Unchanged.]
(4) Domestic Relations.
[(k) Personal Protection Orders Against
Domestic Violence [DV]. All proceedings
for personal protection brought under MCL
600.2950; MSA 27A.2950 (and including MCL
600.2950a; MSA 27A.2950[1]) when there is
a domestic relationship between the
parties.]
[(l) Personal Protection Orders Against
Stalking [DH]. All proceedings for
personal protection brought exclusively
under MCL 600.2950a; MSA 27A.2950(1) when
there is a domestic relationship between
the parties.]
[ICLE Editor's Note: (k) - (bb) redesignated from (m) - (dd) but otherwise unchanged.]
(5) [Unchanged.]
(6) Ancillary or Other Special Proceedings Which May
Be Treated as Cases.
(g) Personal Protection Orders in Domestic
Relationships [PP]. All proceedings for
personal protection brought under MCL
600.2950; MSA 27A.2950 []and/or MCL
600.2950a; MSA 27A.2950(1) when there is a
domestic relationship between the
parties.
([g]h) Personal Protection
Orders Against Stalking
[PH]. All proceedings
for personal protection
brought
[exclusively]
under MCL 600.2950a;
MSA 27A.2950(1) when
there is no domestic
relationship between
the parties.
([h]i) Other Miscellaneous
Proceedings [PZ]. All
other matters which are
assigned a new case
number.
(7) [Unchanged.]
(C) - (E) [Unchanged.]
STAFF COMMENT: The amendments of MCR 3.201, 3.207, and
8.117 and addition of subchapter 3.700, are designed to implement
the statutes providing for the issuance of personal protection
orders. See MCL 600.2950; MSA 27A.2950, MCL 600.2950a; MSA
27A.29501(1).
The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.