Rule 407.Modification and Enforcement

Modification. Either party may move to modify, extend, enforce or rescind an active protective order, and every motion is scheduled for a hearing. Emergency applications go through Rule 65.2.

Weakening the protective provisions is the hard direction. It may happen only on the petitioner's knowing and voluntary consent, or on clear and convincing evidence that continuing would be a manifest injustice. An out-of-court agreement to change the terms is unenforceable until the court approves it.

That last provision protects against something specific and common. Pressure to agree, applied privately to the person the order protects, produces agreements that the court never sees. Here such an agreement is worth nothing until a judge looks at it.

Custody and visitation may be modified as necessary to improve safety and secure compliance. Child support modification must go by separate petition. Ancillary relief may be modified to the extent needed to realise its original purpose, and terminated when it no longer serves it. An award of damages cannot be modified. And no motion is needed to recognise that ancillary relief has been superseded by a later order.

Extension. An order may be extended as the statute allows, but the motion must be filed before the order expires, and the order lapses if the motion is not heard before expiration. Where it cannot be scheduled in time and the motion alleges domestic violence, a substantial violation since entry, or other immediate and present danger, an ex parte hearing may be held and the order provisionally extended to the hearing date — but not more than 30 days after the motion was filed.

A petitioner should not lose protection because the calendar was full; a respondent should not be restrained indefinitely on an ex parte basis. The 30 days is where those two truths are reconciled.

Contempt. A petitioner may move for contempt for violation of any element of an order, and a separate contempt motion is unnecessary where the modification motion is based on the violation. On a finding of contempt the court may do any or all of four things: impose or enhance any protective relief that could have been awarded originally; extend the order; adjust ancillary relief to improve safety and compliance; and employ any other remedy available for civil contempt, including fine and imprisonment.

Note the first three. The natural answer to a violated protective order is a stronger and longer protective order, and the rule puts those ahead of punishment.

Firearms. Any order directing a respondent to relinquish all firearms and to refrain from acquiring or possessing firearms and ammunition must briefly recite the statutory category of abuse that warrants it. The order has to carry its own justification, because it will be read by police officers and by federal systems that need to know the basis on its face.