Appealing a Protection from Abuse

If someone suffers abuse from within a family or intimate relationship, then it is important that the abuse is stopped by any legal means possible. In Pennsylvania, there is a specific law that is meant to protect victims of abuse that is known as the Protection from Abuse Act. This law was passed by the Pennsylvania state legislature back in 1990.

Under the Act, anyone claiming to be a victim of abuse from a family member or intimate partner can petition a court for a protection from abuse (PFA) order. A PFA order can prohibit the alleged abuser from specific actions and activities and can prevent contact with the alleged abuse victim. If someone has sought and obtained a PFA order against you, then your time and options in appealing are limited. If you have legal questions about how to appeal a PFA order as either a petitioner or defendant, then it is essential that you speak to an experienced criminal defense attorney about your situation as soon as possible.

What Is a Protection From Abuse Order?

A PFA order is a restraining order granted by a judge that can specifically regulate an individual's actions and conduct. A judge can prevent or limit contact with anyone alleged to be a victim of alleged physical or sexual assault by the defendant in a PFA order. Once a PFA order is granted by a judge, then any violations will result in immediate arrest and potential criminal charges. PFA orders are enforceable across Pennsylvania and the rest of the United States.

Who Can Seek a Protection From Abuse Order?

Not just anyone can seek and obtain a PFA order under Pennsylvania law. To be eligible to request a PFA order, the alleged victim must be in a “qualifying domestic relationship.” A qualifying domestic relationship requires either an intimate relationship or a family connection with the alleged abuser. Examples of qualifying domestic relationships include:

  • Current or former spouses (including same-sex couples)
  • Current or former dating or intimate partners
  • Blood relatives that live together
  • Relatives by marriage that live together
  • Parents and their children

Adults must file on behalf of any individual seeking a PFA order that is under the age of 18. Those who are not in a qualifying domestic relationship cannot seek a PFA order. PFA law does not protect against strangers, friends, neighbors, roommates, co-workers, or classmates. Those who do not qualify for a PFA may qualify for a restraining order under other Pennsylvania laws. Emotional and/or mental abuse is also not protected under PFA law.

What Is the PFA Order Process in Pennsylvania?

The PFA process in Pennsylvania occurs in the following fashion:

  1. An individual in a qualifying domestic relationship petitions the court for a temporary and immediate PFA order alleging abuse.
  2. A Superior Court judge will conduct an ex parte hearing with just the petitioner to determine if a temporary PFA order is warranted.
  3. If the judge grants a temporary PFA order, then local law enforcement will attempt to locate and serve the PFA order on the individual accused. A hearing date will also be set to determine whether a final PFA should be granted.
  4. At a final PFA hearing, both sides will be given an opportunity to present their cases to the judge, and the judge will determine whether a final PFA should be granted.

An individual must first file for a temporary PFA before a final PFA hearing will take place. A permanent PFA order will not be authorized without the judge giving the accused the chance to defend themselves.

Temporary Protection From Abuse Order

If someone wants a permanent PFA order, then he or she must first petition for and obtain a temporary PFA order. The temporary PFA petition must explain why the court needs to protect them from the defendant. The abuse alleged must be physical or sexual in nature when seeking a PFA order. The petitioner must also detail what happened, where it happened, and give the judge a reason to order a temporary PFA.

Temporary PFA hearings are conducted ex parte, with only the petitioner present. This means that the defendant and his or her attorney will not be heard during this hearing or even aware that a temporary PFA hearing is taking place. The judge will then decide whether to grant a temporary PFA order and will set a date for a final PFA hearing within ten days. The temporary PFA order will remain in place until a decision is made on a permanent PFA.

Hearing Process for a Final Protection From Abuse Order

Final PFA orders are only given following a full formal hearing in front of a judge. In final PFA hearings, both sides are given a chance to present their side of the story to the judge. This hearing operates like a bench trial and typically includes presenting relevant evidence, testimony, or both. To get a final PFA, the petitioner must prove beyond a preponderance of evidence standard that some sort of physical or sexual violence took place at the hands of the defendant. Since final PFA hearings typically take place within ten days of a temporary PFA order being granted, the defendant has limited time to get their defense together unless he or she is granted an adjournment. Pennsylvania court procedure and the rules of evidence apply in final PFA hearings.

The Power of Final Protection From Abuse Orders

If a final PFA is granted by a judge, then the order and its provisions can remain in place for up to three years. Judges have wide-ranging authority in setting provisions under a final PFA order and can order the following:

  • Stop the defendant from threatening, abusive, or harassing behavior against the petitioner
  • Require the defendant to move out of any shared residence with the petitioner
  • Grant temporary custody of any common children to the petitioner
  • Regulate the defendant's visitation rights regarding any children in common
  • Require the defendant to submit any owned firearms to the court
  • Require no contact with the petitioner or any attempted contact with the petitioner

A judge can also order restitution as part of a final PFA order if the alleged conduct of the defendant incurred any costs to the petitioner. These costs can include medical costs or costs for therapy. If a judge makes a custody determination as part of a final PFA, then the defendant can later have a hearing to determine final custody orders.

If anyone violates the terms of any PFA order, then he or she can be held in criminal contempt of court. Any alleged PFA violations can be contested in a hearing that will be held within ten days of the alleged violation. If a defendant is found to have violated a PFA order, then he or she can be sentenced to jail for up to six months and can be fined up to $1,000 by the presiding judge.

Are PFA Orders Permanent in Pennsylvania?

No, neither temporary nor final PFA orders are permanent. While a final PFA order doesn't last forever, it may feel like it when it is ordered for up to three years. A final PFA order can also be granted for as little as one month. Once a final PFA expires, the petitioner can request to renew the PFA for another specified period.

A Final PFA Order can only be canceled by a judge while it is active. After a final PFA is ordered, either party can later file a new petition to the court seeking changes to the provisions of the PFA. If the judge is convinced that amending or canceling the final PFA is in the best interest of the parties, then he or she can do so. To have a final PFA canceled, the judge must be convinced that the petitioner is no longer in danger of being abused by the defendant. While the petitioner may want a final PFA order lifted, the final decision to do so remains with the judge who hears the case – not the petitioner.

If a petitioner files a request to withdraw a final PFA order against a defendant in Pennsylvania, then the judge must make sure that the petitioner is not being forced or tricked into doing so. All final PFA orders will remain in place and will have the full force of the law until a judge signs off on their removal. If a petitioner has invited contact with the defendant before a judge removes a final PFA, then the defendant is subject to all available criminal penalties for the violation.

It is more common than most people realize for a petitioner to let a defendant know that he or she plans to ask the court to withdraw a final PFA order but may not do so when it comes time. A judge may also deny a request for various reasons. It is important to understand that until a judge physically signs an order withdrawing a final PFA or its provisions, it remains in place along with all its protections.

If a judge agrees to amend or withdraw a final PFA order, then the defendant will receive a signed order stating just that. This order will state that the defendant is no longer required to obey the provisions of the now-former final PFA order.

How Often Can a Final PFA Order Be Extended?

Final PFA orders can be extended an infinite number of times as long as the presiding judge determines that the continued protection of a PFA is necessary. If the court finds that there is a continued threat of abuse by the defendant, then the court can extend a final PFA order for up to three years at a time. There are no guarantees when a final PFA order will truly end due to this provision of Pennsylvania law. This means that a final PFA order in Pennsylvania can remain active for many years. The provisions of the final PFA can cause extreme hardship on a defendant, especially when there are children in common.

How Do You Appeal a Final Protection From Abuse Order?

While a final PFA order is called “final,” its protections can eventually end, and the judge's decision granting a final PFA order can be appealed. The provisions in a final PFA order can be far-reaching and can control many aspects of a defendant's daily and personal life. A judge can even include orders regarding required financial support for a former spouse and/or any children in common and can require a defendant to take part in substance abuse treatment programs and/or counseling.

The violating of a final PFA order is a criminal matter, and the burden for criminal charges to be filed is rather low. If a violation of a final PFA order is alleged, then the police must arrest the defendant if there is probable cause that a violation was committed by the defendant or a credible statement from the victim claiming a violation. In most cases, a first-time PFA violator will be given probation, but he or she can be sent to jail for up to six months. This will also result in a criminal record for the defendant.

If a petitioner won't willingly come into court and petition for the court to amend or withdraw the orders of a final PFA, then filing an appeal is likely your best approach. If you choose to file an appeal of the decision of a PFA, then you have two options:

  1. You can file a motion for reconsideration with the same judge, or
  2. You can file an appeal of the PFA to the Superior Court.

Motions for Reconsideration of a Final PFA Order

If you choose to file a Motion for Reconsideration, then you must do so within ten days of the judge's order granting or denying a final PFA. The purpose of this motion is to ask the judge to revisit their decision granting or denying a PFA to potentially change their mind about their decision. To be successful in a motion for reconsideration, you will need to demonstrate to the judge that he or she made a mistake in applying the law, mistakes of fact, or both. A motion for reconsideration can be successful if:

  • The court interpreted or applied the law incorrectly,
  • The applicable law changed, or
  • The judge failing to reconsider the order will result in manifest injustice against the individual petitioning for reconsideration.

Don't expect that your motion for reconsideration will result in another chance at arguing the case over again in its entirety. A motion for reconsideration is meant to be a specific and pointed request for the judge to revisit his or her decision due to appropriate legal reasons.

Final PFA Appeals to Superior Court

If a motion for reconsideration is unsuccessful or you choose to file a formal appeal, then you must file your final PFA appeal to the appropriate Pennsylvania Superior Court within 30 days of the judge's signed order regarding the final PFA. You will be required to file a specific form called a ‘Notice of Appeal,' and you will need to file a legal brief that outlines the law and how the law should be applied in your favor. You will need to request and obtain a copy of the transcript of the final PFA hearing. It is important to understand that appeals are not a second chance at the PFA hearing. Appeals are a review of whether the judge appropriately followed the law and the rules of evidence. If a judge is deemed to have made legal mistakes that affected the outcome of the final PFA hearing, then the Superior Court can reverse the judge's decision granting or denying the final PFA.

What Can Be Appealed in a Final PFA Order Appeal?

Before an appeal of a final PFA order is filed, it is important to understand what kinds of issues can be appealed. The presiding judge's decisions regarding any motions or objections made by your attorney at a final PFA are appealable and can be reviewed by a Superior Court. Your attorney must make legal motions or proper objections to preserve these issues for review in an appeal. The types of issues that can be appealed in a final PFA order appeal include:

  • Attorney misconduct
  • Judicial misconduct
  • Newly discovered evidence
  • A mistake in the application of the law

If your attorney fails to preserve the record by neglecting to make appropriate motions or appeals, then your ability to appeal those issues is likely lost. You will not successfully appeal an order granting or denying a final PFO simply because you're unhappy with the presiding judge's decision. You must detail point specific mistakes made by the judge in the application of law or legal standards in rendering their decision. You must also demonstrate that the mistakes affected the final decision of the presiding judge. You must first understand your appellate issues before filing a winning appeal.

A Real-Life Example of a Final PFA Appeal

In M.K. v. J.M., the defendant appealed the decision of a final PFA against her concerning minor children. In this case, a mother appealed a judge's decision against her concerning one of her minor children. The allegation involved the mother spanking and slapping the child. In granting the final PFA, the court granted sole custody of one child and primary custody of a different child to the father. The court only awarded partial custody to the mother regarding the second child. During the final PFA hearing, one of the kids brought along a mobile device that contained a video of the alleged incident. The court watched this video despite the video never properly being admitted into evidence.

At the conclusion of the finals PFA hearing, the court granted the final PFA. Despite the video never being admitted into evidence, the presiding judge indicated that he watched the video and determined that abuse took place from the video. Pursuant to the mother's appeal, the Superior Court found that the presiding judge acted improperly by basing his decision on material outside the record. The Superior Court then determined that the presiding judge abused his discretion by basing a final PFA order on evidence that was not admitted. This mistake of law resulted in a reversal of the final PFA order.

Appeals are viewed through a narrow lens and are only meant to review the actions of lower courts by appellate courts. When a mistake of legal procedure or the application of a law is made, then you may have grounds for an appeal.

Can a Final PFA Order Be Canceled in Pennsylvania?

Yes, it is possible to have a final PFA order canceled under Pennsylvania law. The person who petitioned for the PFA is the only person who can seek to cancel a final PFA order. This does not guarantee that the final PFA will be canceled as the final decision resides with the judge. The judge will inquire to determine whether the petitioner is being threatened or coerced and will afterward decide whether to cancel the final PFA. The judge may decide to keep the final PFA in place so long as he or she feels there is a danger of further abuse by the defendant. If you have legal questions, then call us at the Lento Law Firm so we can help!

Contact the Lento Law Firm Today

If you have questions about how to appeal the decision of a final PFA order as either the petitioner or defendant, then it is important that you speak to an experienced attorney. It is important to know the legal standards for decisions on protection from abuse petitions. Attorney Joseph D. Lento and the Lento Law Firm help clients overcome the challenges associated with PFA cases day in and day out throughout Pennsylvania. Attorney Lento and his team fight on behalf of clients at the trial stage and until the final bell rings, even if this means seeking reconsideration or an appeal of a wrongful decision. To learn why the Lento Law Firm is the right decision, call us at 888-535-3686 or contact us online.

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Attorney Joseph D. Lento has unparalleled experience practicing Family Law in Pennsylvania. If you are having any uncertainties about what the future may hold for you and your family, contact our offices today. Family Law Attorney Joseph D. Lento will go above and beyond the needs for any client and fight for what is fair.

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