Can a Child Testify at a PFA Hearing in Pennsylvania?

Posted by Joseph Lento | Jan 10, 2017 | 0 Comments

Protection from Abuse cases often involve allegations of domestic violence or spousal abuse between adults.  Protection from Abuse (PFA) orders can be sought by various persons based on the nature of the relationship between the parties; for example, between a husband and wife, a boyfriend or girlfriend, former or present.  PFA orders, however, are not always sought for the protection of an adult.  In some instances, a parent will seek a protection order on behalf of a child or children based on allegations of domestic abuse or child abuse for example.  Can a parent request a PFA on behalf of a child?  Yes, Pennsylvania law allows a parent to seek a protection order on a child's or children's behalf.  For example, a mother may seek a PFA on behalf of her child to protect the child from an allegedly abusive father just as father may seek a PFA on behalf of his child to protect the child from an allegedly abusive mother; the list of possible scenarios is extensive.

I Am a Parent and I Was Served With a PFA Order - Now What?

When, for example, a mother or father is served with a temporary Protection from Abuse order pending a final hearing date, all can seem lost.  In cases where a temporary "ex parte" protection order was not issued at the "ex parte" hearing, and instead, a notice of a pending final PFA hearing is served upon a mother or father, all can also seem lost.  (An "ex parte" temporary PFA hearing is the initial court hearing where only the complainant and the complainant's attorney, when represented, will appear before the Family Court judge.) 

Any defendant in a Protection from Abuse action, mother, father, or otherwise, will have many questions - "What I am supposed to do to respond to the PFA allegations?"  "How can a PFA affect my work or school?"  "Can I go to jail because of a PFA?"  Any and all concerns that a PFA defendant may have are legitimate concern because if a PFA is issued against a person, it can greatly complicate the accused person's life and it can also cause major disruptions to the accused person's living arrangements, employment, education, custody rights, firearm rights, and so forth.  These concerns can be amplified when the Protection from Abuse order is sought on behalf of a child. 

How Can I Tell if the Pennsylvania Protection Order is on Behalf of a Child?

When a defendant is first served notice of a PFA in Pennsylvania, it may not always be clear if the PFA is being requested for the adult plaintiff him or herself, or the plaintiff's (and defendant's) child or children.  A review of the PFA "complaint" will answer this question.  The plaintiff's name will be always be at the top of the complaint.  The child's or children's name will usually be included in the complaint even in cases where the Protection from Abuse order is not requested specifically for the child or children.  The reason that the child or children will be named in the PFA complaint regardless of whether or not the plaintiff is seeking the protection order on behalf of the child or children is because certain background and demographic information is universally included in the complaint.

When a parent seeks protection for a child or children, however, the PFA complaint itself will have the additional caption of, "On behalf of (the child's or children's name)."  This will be the case whether the domestic violence case is taking place in Philadelphia, Montgomery County, Delaware County, Bucks County, or Chester County.  As high as the stakes can be when two adults are squaring up against each other in PFA court whether in Philadelphia, Norristown, Media, Doylestown, or West Chester, the stakes can be that much higher when a child or children are involved in the matter, and especially when a protection order is sought on behalf of the child or children.

Can a PFA Affect Child Custody Rights in Pennsylvania?

Child custody rights can be greatly affected if a PFA order is issued against a defendant.  This is an unfortunate potential reality for defendants whether or not the PFA is sought on the child's or children's behalf.  If, for example, a final Protection from Abuse order is issued against a defendant, the applicable Family Court, be it Philadelphia Family Court, Montgomery County Family Court, Delaware County Family Court, Bucks County Family Court, or Chester County Family Court, can supersede the defendant's existing child custody rights by fashioning a final PFA order that favors the plaintiff and any "reasonable" request that he or she makes regarding custody of the parties' child or children.

My Children are Named as PFA Plaintiffs - How Long Can a Final PFA Order Last in Pennsylvania?

In the more extreme situation when the protection order is requested to protect the child or children, if a final order is issued against the defendant, the defendant's right to be a part of his or her child's or children's life can be lost for three years, and in some instances for longer than three years.  Although the maximum length of a final Protection from Abuse order in Pennsylvania is three years, a plaintiff can ask the applicable Family Court to extend the length of the final order beyond three years if circumstances near the time of the final order's expiration date make such a request "reasonable."  Again, the "reasonableness" of such a request will be determined by the PFA judge who presides over the case at the applicable time.  For both plaintiffs and defendants, the PFA judge's decision can have a major impact on the parties' lives, and also any children involved in domestic violence cases.  

Who "Makes" Pennsylvania PFA Law?  Who "Decides" Pennsylvania PFA Law?

With so much at stake for parents and children involved with a domestic violence case, it is important to understand how the domestic violence case will be decided.

The Pennsylvania law governing domestic violence cases is known as the "Pennsylvania Protection from Abuse Act," and is codified under 23 Pa.C.S.A. § 6101.  The Act, although created by Pennsylvania legislators, is interpreted by the Pennsylvania judicial system.  Person seeking protection and person defending against abuse allegations should understand that PFA trials take place at the applicable Pennsylvania county's "Court of Common Pleas;" the trial court for Pennsylvania Counties. 

At the PFA trial, the judge will make decisions regarding all aspects of the PFA case; including how the trial will proceed, what evidence is relevant, what evidence is admissible, and numerous other aspects of the case.  Many of these decisions will be critical in the case's outcome.  With a judge's decision, there will often be one party that is satisfied with the decision and one party that is dissatisfied with the decision.  With regards to the judge's ultimate decision as to whether the the protection order will be granted or not, depending on what that decision is, the plaintiff will often be either satisfied or dissatisfied, just as the defendant will often be either satisfied or dissatisfied.  Regardless of the ultimate decision, however, often because of the emotions involved and the nature of the proceedings, neither party will usually be entirely satisfied even if they "win" the PFA case.  

Can I appeal a PFA case in Pennsylvania?

If a party believes that the trial court's decision was incorrect or improper, or for any other reason that may be valid, the party can appeal the PFA decision.  If a person is to appeal the PFA case, judges sitting in the Pennsylvania Superior Court will review the trial court's decision; rather than judges sitting in the Court of Common Pleas of either Philadelphia, Montgomery, Delaware, Bucks, Chester, or any Pennsylvania county for that matter.  When a party appeals a PFA case to the Superior Court of Pennsylvania, the party's appeal will allow for a higher-level review of how the law was applied at the PFA trial. 

Although the Pennsylvania legislature make laws that address general considerations, Pennsylvania Courts apply the laws made by the Pennsylvania legislatures to the specific factual situations before the Court, and in doing so, "interpret" the law, the Pennsylvania Protection from Abuse Act in cases involving PFA's.  Through Pennsylvania Courts' interpretation of the PFA Act, Pennsylvania Courts issue "decisions" that indicate the Courts' interpretations of the PFA Act, and as such, how the PFA Act will apply to the specific facts of the PFA case at hand. 

Ultimately, the trial courts at the county level most often look to appellate court decisions, Pennsylvania Superior Court decisions in particular, for assistance in properly deciding domestic violence cases at the trial level.  Although Pennsylvania appellate court decisions most often guide PFA trial courts, at times, Pennsylvania criminal cases can also help guide the interpretation of Pennsylvania PFA law.  One such Pennsylvania criminal court case helped the Pennsylvania Superior Court decide if and when it is appropriate for a child to testify at a Protection from Abuse trial.

When Can a Child Testify to PFA Abuse Allegations in Pennsylvania?

With so much riding on a PFA court's decision, plaintiffs and defendants often have a related, but competing concern in domestic violence cases involving children.  Plaintiffs often ask, "Can my child testify to abuse allegations at a PFA hearing?"  Defendant's often ask, "Is my child allowed to testify against me at a PFA hearing?" 

Parents and the parents' attorneys who are involved with PFA proceedings in Philadelphia, Norristown, Media, Doylestown, or West Chester should familiarize themselves with the case of Commonwealth vs. Delbridge, 855 A.2d 27 (Pa. 2003), which, although a Pennsylvania criminal case, has important ramifications relative to a child's testimony in a Protection from Abuse case.  Although Commonwealth vs. Delbridge involved a father's alleged sexual assault of his children that was prosecuted at a Pennsylvania criminal trial, the legal precedent established in this case regarding when children can testify in court impacts Pennsylvania domestic violence cases involving children.

The Pennsylvania Superior Court Considered a Criminal Case in its Review of a PFA Appeal

The PFA appeal that prompted the Pennsylvania Superior Court to consider the case of Commonwealth vs. Delbridge involved the question of whether "taint," that is, the implantation of false memories or distortion of actual memories through improper testimony and suggestive interview techniques, was a subject properly explored during a hearing testing the competency of a child witness. 

In Commonwealth vs. Delbridge, at the time of the alleged sexual assaults by their father, the children were ages six and four, and were seven and five at the time of trial.  The father alleged that the children's memory of the events had been tainted by repeated and suggestive interviews.  The criminal trial court limited the competency hearing to questions examining the credibility of the children to understand the difference between truth and non-truth, the general capacity to remember, and the ability to communicate that memory.  At the conclusion of the hearing, the criminal trial court found that the children were legally competent to testify. 

Is Evidence of a Child's "Taint" Admissible?

The court opinion stated that in order to resolve the questions presented, it must first be decided if evidence of taint is admissible  If it is admissible, the court must determine if a competency hearing is the appropriate venue for considering evidence of taint, and then, finally, the court must determine whether it is proper for the trial court to admit expert testimony on the question of taint.

The core belief underlying the theory of taint is that a child's memory is peculiarly susceptible to suggestibility so that when called to testify, a child may have difficulty distinguishing fact from fantasy.  Where there is some evidence of taint, the court will look to see whether there was any improper interviewing, suggestive questioning, vilification of the accused, and interviewer bias that may have influenced a child witness to such a degree that the proffered testimony may be irreparably compromised. 

Taint is a legitimate question for examination in cases involving complaints of sexual abuse made by sexual children (although a also child can be "tainted" by one parent when false domestic abuse allegations are made against the other in a PFA proceeding).  A competency hearing concerns itself with the minimal capacity of the witness to communicate, to observe an event and accurately recall that observation, and to understand the necessity to speak the truth.  A competency hearing is not concerned with credibility.

The Pennsylvania Superior Court Addresses When Children Can Testify at a PFA Hearing

The Pennsylvania Superior Court held that where it can be demonstrated that a witness' memory has been affected so that his or her recall of events may not be dependable, Pennsylvania law charges that the trial court with the responsibility to investigate the legitimacy of such an allegation; the trial court's responsibility to investigate is invoked whether it is a criminal trial court, a PFA trial court, or any trial court.

A Children's Competency Hearing is Required if There is Evidence of Taint in a PFA Case

The Pennsylvania Superior Court noted that a competency hearing is the appropriate venue to explore allegations of taint.  In order to trigger an investigation of competency on the issue of taint, the moving party must show some evidence of taint.  Once some evidence of taint is presented, the competency hearing must be expanded to explore this specific question.

Pennsylvania law has always maintained that since competency is the presumption, the moving party must carry the burden of overcoming that presumption.  Expert testimony is admissible when a matter in issue is beyond the common knowledge of the fact finder. The trial judge must decide if expert testimony will advance a resolution of the question of competency on a case-by-case basis.  The decision will be left to the individual judge of whether, in any particular case alleging taint, expert testimony would assist the court in understanding the evidence or determining a fact in issue during a competency hearing.  On the issue of competency, cross-examination of the children at a competency hearing will be open to legitimate questions as to the details of the events, where the line of inquiry is supported by some evidence demonstrating the link between the actual questions and the alleged taint.  The parameters of cross-examination on this question are a matter left to the discretion of the trial court.

Competency and No Taint Required for a Child to Testify in a PFA Case

Ultimately, if a child is deemed competent and there is no evidence presented as to taint, a child should, per Pennsylvania law, be allowed to testify at a PFA hearing. As to how a child testifies, or if such testimony will in fact be needed, the PFA trial court will make this determination based upon the particular circumstances of the case at hand.  If it is decided that a child will testify at a PFA hearing, depending on the child's age, the court can allow the child to testify in a private setting rather than in the courtroom.  If the court allows the child to testify in a private setting, the child, the judge, the parent's attorneys, and the court reporter will usually be the only parties present.

Pennsylvania PFA Attorney When Children Are Involved

Protection from Abuse cases involving children are often viewed from two opposite perspectives depending on whether a party is the plaintiff or the defendant in the case.  Children involved in PFA cases will have a different understanding altogether, if they have any understanding at all.  Because the protection of a child who is the legitimate victim of domestic abuse is so important, plaintiffs must make sure they do everything possible to get the protection intended by Pennsylvania's Protection from Abuse Act.  Because parents at times, due to a failed relationship or countless other reasons, regretfully utilize the Pennsylvania court system to cause problems for one another, children may be asked to speak against the other parent when it is not deserved.  On other occasions, a defendant may have made a mistake and gone too far with disciplining a child for example.  Not that such mistakes are excusable, but a defendant faced with such allegations nonetheless needs to make sure that the potential consequences he or she faces does not exceed the nature of what took place. 

Whether a plaintiff seeking a Protection from Abuse order on behalf of a child, or a defendant facing allegations of abuse against a child, it is critical to make sure your interests are protected, and those of your child or children.  Contact us today to learn how we can help.

About the Author

Joseph Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento is a veteran of one of the nation's busiest family courts with nearly 20 years' experience passionately helping families. By day, he worked in the trenches of family court, and at night, he studied the law. He helped countless families while working at family court, and he went on to become an attorney, dedicating his law practice to continuing the work he started years earlier. Mr. Lento's experience both behind the scenes and on the front lines allows him to understand a client's family law matter from all angles, and allows him to find and employ the most effective strategies to get favorable outcomes for any client. Joseph D. Lento is licensed in Pennsylvania New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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