[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007; and amended by Tribal Council motion at a Tribal
Council Special Session on October 31, 2018.]
There shall exist a civil action known as a "Petition for a
Personal Protection Order."
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007; and amended by Tribal Council motion at a Tribal
Council Special Session on October 31, 2018.]
(a)
A petition may be filed in any of the following circumstances:
(1)
The petitioner resides or is domiciled within the six-county service
area;
(2)
The respondent resides or is domiciled within the six-county service
area;
(3)
The alleged act of domestic violence occurred within the six-county
service area;
(4)
A communication that allegedly constitutes domestic violence was
either transmitted or received within the six-county service area.
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007.]
A petition for an order of protection may be filed regardless
of whether other court proceedings between the parties have been filed
or criminal charges have been filed against the alleged abuser.
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007.]
(a)
Any one of the following may file a petition for an order of protection
on behalf of a victim of domestic violence or stalking:
(1)
Any person who alleges that he or she has been the victim of domestic
violence or stalking;
(2)
A family or household member, or a next friend, on behalf of a victim
under the age of 18 years;
(3)
A family or household member, or next friend, on behalf of a victim
who is prevented from doing so by hospitalization, by physical or
mental disability, or by fear;
(4)
Family Services Department on behalf of a victim;
(5)
The Tribal Prosecutor.
(b)
Family household members, including adults, may file a joint petition;
provided, all adults included in the petition sign the petition.
(c)
Persons under the age of 18 must have a parent, guardian, or next
friend file the petition unless the parent or guardian is the alleged
abuser or unless the youth is emancipated. If the parent or guardian
is the alleged abuser, an adult relative or friend may file on behalf
of the youth. If the youth is emancipated, the youth may file on his
or her own behalf.
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007.]
(a)
A petition for an order of protection shall include the following
information:
(1)
The name and address where the petitioner would like to receive notices
from the court;
(2)
An allegation that domestic violence or stalking has taken place;
(3)
The names, ages, and tribal status of all persons known to the petitioner
to be in need of protection;
(4)
The name, age, tribal status and address of the alleged abuser, and
his or her relationship to each victim;
(5)
A signed statement or separate affidavit filed with the petition
stating in the petitioner's own words the specific facts and circumstances
of the alleged domestic violence, including whether the petitioner
believes that he or she is in danger of further domestic violence;
(6)
A statement listing each known civil or criminal action or proceeding,
past and present, involving both parties or the custodial or residential
placement of a child of the parties; the court of record for each
action or proceeding; and any identifying information which may enable
the court to access the court records regarding those proceedings.
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007.]
A petitioner may omit his or her address from the petition and
any other documents filed with the court. If such information is omitted,
and is determined by the court to be needed to advance the proceedings,
the court may order that disclosure be made orally and in chambers,
out of the presence of the respondent. If the court orders disclosure,
the information shall be kept under seal.
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007.]
A petition for an order of protection shall be filed with the
Court Clerk. There shall be no fee for filing the petition.
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007; and amended by Tribal Council motion at a Tribal
Council Special Session on October 31, 2018.]
(a)
When the court finds probable cause to believe that there is a danger
of domestic violence to the petitioner, based on an allegation that
domestic violence has occurred or is about to occur, the court may
enter a temporary order of protection on an ex-parte basis, without
notice to the respondent, pending a full hearing.
(b)
A temporary order may be issued by telephone or fax. A telephone
order shall be followed by a written order from the Tribal Judge mailed
or faxed within three working days from the date of the telephone
order.
(c)
Following entry of a temporary order of protection, the court shall:
(1)
Set a date for a hearing on the petition for an order of protection
in accordance with this section.
(2)
Cause the order to be delivered to the GTB Tribal Police Department
for enforcement purposes and for service upon the respondent.
(3)
Transmit a copy of the order to any additional appropriate law enforcement
or other agency designated by the petitioner.
(d)
If a hearing is not held within the time required by § 352,
the temporary order shall expire unless it is re-issued by the court
for good cause.
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007.]
Upon receipt of a petition for an order of protection, the court
shall set a date for hearing to be held within 15 days or at the next
scheduled court date for civil cases, whichever is earlier.
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007; and amended by Tribal Council motion at a Tribal
Council Special Session on October 31, 2018.]
(a)
A petition, notice of hearing, and temporary order of protection
issued pursuant to this subsection shall be served on the respondent
at least 72 hours before the hearing. If service has not been made
within 72 hours of the hearing, the court may set a new hearing date
and re-issue a temporary order of protection as appropriate.
(b)
Service may be made by tribal law enforcement or by any officer of
the court by handing a copy to the respondent.
(c)
If, after a diligent effort has been made to personally serve the
respondent, personal service cannot be made, the court may order that
the respondent be served by certified mail, return receipt requested.
Such service is complete upon delivery of the mail.
(d)
If the certified mail is returned with a notation by postal authorities
that the respondent refused to accept the mail, or that the mail was
unclaimed, the court may order that the respondent be served by mailing
a copy by first class mail to the respondent at his or her last and
best known address. Service by first class mail is deemed effective
three days after mailing.
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007; and amended by Tribal Council motion at a Tribal
Council Special Session on October 31, 2018.]
(a)
Upon and after hearing, if the court finds, by a preponderance of
the evidence, that domestic violence or stalking has occurred or is
likely to occur in the future, the court may issue an order of protection
containing provisions:
(1)
Prohibiting the respondent from committing or threatening to commit
acts of domestic violence against the petitioner or the petitioner's
family or household members.
(2)
Prohibiting the respondent from contacting, harassing, annoying,
telephoning, or otherwise communicating with the petitioner, the petitioner's
family or household members, directly or indirectly, through friends,
relatives or co-workers.
(3)
Requiring the respondent to vacate, or stay away from, the petitioner's
residence, even if it is a shared residence or principally owned by
the respondent.
(4)
Requiring the respondent to stay away from any well-defined geographic
area, including, but not limited to, a residence, workplace, school
or daycare of the petitioner or the petitioner's family or household
members.
(5)
Prohibiting the respondent from possessing or using any firearm or other weapon specified by the court, and ordering the respondent to turn such weapons over to law enforcement for safekeeping. In exercising its discretion, the court shall give due consideration to 14 GTBC Chapter 7.
(6)
Establishing possession of the parties' residence and use of vehicles
or other essential personal effects, regardless of ownership, and
directing law enforcement to accompany the petitioner to the residence
of the parties to ensure that the petitioner is safely restored to
the possession of the residence, vehicle, and other personal effects
or to supervise the petitioner's or respondent's removal of personal
belongings.
(7)
Prohibiting the destruction, liquidation or disposal of any and all
joint assets or property and any and all specific assets and property
of the petitioner.
(8)
Granting temporary custody of any minor children to the petitioner
and/or establishing visitation rights. Any temporary custody order
shall provide for child support and temporary support of the person
having custody of the children in amounts deemed proper by the court.
(9)
Ordering the respondent to timely pay any exiting debts of the respondent,
including mortgage or rental payment necessary to maintain the petitioner
in his/her residence.
(10)
Ordering the respondent to pay for the support of the petitioner
and any minor children if the respondent is found to have a duty to
support the petitioner or minor children.
(11)
Ordering the respondent to reimburse the petitioner for any
expenses associated with the domestic violence incident, including,
but not limited to, medical expenses, counseling, shelter, repair
or replacement of damaged property, court costs and attorney fees.
(12)
Ordering the respondent to attend and successfully complete
one or more programs, including but not limited to, a domestic violence
perpetrator program, mental health counseling, substance abuse treatment,
and parenting classes, and to execute all forms and releases that
are necessary for the court to be kept apprised of the defendant's
compliance with the court's order.
(13)
Any other order the court believes is reasonably necessary to
protect and ensure the safety of the alleged victim or family or household
member.
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007.]
(a)
All orders of protection not received in court shall be served by
law enforcement on the respondent by delivering a copy personally
to the respondent.
(b)
The clerk of the court shall have a copy of any order issued under
this chapter forwarded on or before the next judicial day to law enforcement
for service upon the respondent. Service of an order under this chapter
shall take precedence over the service of other documents, unless
they are of similar emergency nature.
(c)
If law enforcement cannot complete service on the respondent within
10 days, the petitioner shall be notified. The petitioner shall provide
information sufficient to permit notification if possible.
(d)
If the order entered by the court recites that the respondent appeared
in person before the court, the necessity for further service is waived
and proof of service of that order is not necessary.
(e)
Any person who serves an order of protection upon a respondent shall
file an affidavit with the court stating the date, time, place, and
manner of service, and any other facts necessary for the court to
determine if service has been made.
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007.]
(a)
An order of protection shall remain in effect for a period of two
years unless it is terminated or modified by the court prior to that
time. The court may make an order of protection for a longer period
of time or may make a permanent order of protection if the court determines
that it is necessary for the protection of the victim and the victim's
family.
(b)
A petitioner may file a written motion to renew an order of protection
at any time within three months prior to the expiration of the order.
The motion shall be supported by a declaration stating why the petitioner
believes the order should be renewed. The motion shall be served and
a hearing scheduled and conducted according to the procedures set
forth in this chapter.
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007.]
(a)
A temporary modification may be made ex-parte upon a showing of immediate
danger to the petitioner or a member of the petitioner's family or
household. However, an order of protection shall not be dismissed
until the following has been completed:
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007; and amended by Tribal Council motion at a Tribal
Council Special Session on October 31, 2018.]
(a)
A respondent may request a modification of an order of protection
if the order either:
(1)
Removes the respondent from a residence that he or she owns;
(2)
Requires the respondent to stay away from a specific residence, school,
place of employment or other location;
(3)
Grants the petitioner possession and use of automobile and other
essential personal effects;
(4)
Grants the petitioner temporary custody of a child or children;
(5)
Provides or denies the respondent visitation with his or her minor
child or children;
(6)
Requires the respondent to make payments to the petitioner, the court
or another party.
(b)
Upon receiving the respondent's request, the court shall set a hearing
date as soon as practicable, but in no event later that 15 days after
the next day on which court is in session following the filing of
respondent's request. Notice of the request for modification and the
hearing date shall be served on the petitioner in accordance with
§ 355.
(c)
At the hearing, the court shall consider whether any less-restrictive
alternatives may be appropriate under the circumstances. The court
may modify the order where the order works an unreasonable hardship
upon the respondent, provided that the safety of the victim and any
family or household member remains the primary consideration.
[History: Tribal Act #07-25.1862, enacted by Tribal Council
on December 19, 2007; and amended by Tribal Council motion at a Tribal
Council Special Session on October 31, 2018.]
Consistent with federal law codified at 18 U.S.C. § 2265,
Michigan Court Rule 2.615, the Enforcement of Tribal Judgments, and
Chapter X of the GTB Court Rules, the courts of the Grand Traverse
Band shall honor and enforce domestic violence protection orders issued
by other jurisdictions, including tribal, federal and state courts.
Chapter X of the Tribal Court Rules obligates the Tribal Court to
grant full faith and credit to judgments of other tribal courts, Michigan
courts, and federal courts. The Tribe finds that federal law, 18 U.S.C. § 2265,
requires state and tribal courts to honor protection orders entered
by each court. Moreover, MCR 2.615 (Enforcement of Tribal Judgments)
provides that judgments, decrees, orders, warrants, subpoenas, records,
and other judicial acts are recognized by all state courts of Michigan.
