Child custody is often a hotly contested issue in divorce cases or when parents of a child are unmarried. When custody is in conflict, the potential for violence increases. When people suffer abuse within a family or intimate relationship, there is an increased risk for this abuse to continue because of the potential incapacity of the abuse victim to find safety. To help curb these risks of abuse, the Pennsylvania state legislature passed the Protection from Abuse Act in 1990.
Under the Protection from Abuse Act, anyone who claims to be a victim of abuse from a family member or intimate partner can ask the court for a protection from abuse (PFA) order. A PFA order can restrain the alleged abuser from specific actions, contact, or other activity regarding the alleged abuse victim. If someone is seeking a PFA order against you, then your time is limited. It is critical 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 judicially granted order that can regulate where an individual can go and what they can or cannot do regarding the plaintiff. A PFA order can prevent or limit in-person or electronic contact with anyone who is a victim of alleged physical or sexual assault by the defendant. When a PFA order is put in place, then any violations of any listed provisions can result in immediate arrest and potential fines, and jail time. PFA orders are enforceable nationwide.
What is a Custody Order?
When a couple has children in common but is no longer together, it is not a surprise that they might not always agree on child custody issues and how parenting time should be arranged. If there are custody disagreements in Pennsylvania, then decisions can be made by a Superior Court judge that can outline how custody and parenting time should be allocated. Judges are required to follow the appropriate Pennsylvania law, and a judge's decisions can be altered if there are allegations of threats of violence or harm.
What Law Applies to Custody Cases in Pennsylvania?
If domestic violence is alleged against a parent in Pennsylvania, then a judge can override existing custody orders. Before a judge takes measures like this, they must examine several factors. Some of the questions that a judge will ask include:
- Was there alleged violence against a parent?
- Was there alleged violence against a child?
- Was there alleged violence against both a parent and child?
- Is there a continued imminent threat of violence?
- Does the person accused of violence have a history of violence?
- Has violence been alleged multiple times?
- Did any injuries result?
- Are there any witnesses who can testify about what they saw?
Once a judge has the answers to these questions, then the judge will typically have a good idea about what he or she will do regarding custody orders. A judge has the authority to alter, limit, or even rescind a child custody order based on the information learned during a PFA hearing. Judges can also make parents attend anger management classes or take other measures to help ensure the safety of everyone involved. If it is shown that accusations were falsely made, then a judge can reexamine child custody and make new orders regarding custody due to the false allegation.
Who Can Get a PFA Order?
An individual must be in a qualifying domestic relationship to request a PFA order in Pennsylvania. To qualify, there must be either an intimate or familial relationship with the person alleged to have committed abuse. Relationships that qualify under Pennsylvania law include:
- Current or former spouses
- Current or former dating partners
- Current or former intimate partners
- Blood relatives that reside together
- Relatives by marriage that reside together
- Same-sex couples
- Parents and their kids
If an individual under 18 years old wants a PFA, then they must have an adult file a petition for them. The Protection from Abuse Act does not include strangers, friends, neighbors, roommates, co-workers, or classmates in allowing PFAs. These individuals may be able to seek a restraining order under a different area of Pennsylvania law. Any alleged abuse that is considered emotional or mental is also not regulated under the Protection from Abuse Act.
What is the PFA Order Process in Pennsylvania?
In the state of Pennsylvania, the process to get a PFA order is as follows:
- The petitioner asks the court for a temporary PFA and is immediately heard by a judge.
- If the judge agrees with the petitioner, then law enforcement will try to serve the protection from abuse order on the accused. He or she will also be given a hearing date for a final PFA hearing.
- During a final PFA hearing, both sides will be given an opportunity to present their cases to the judge.
A temporary PFA is the first step towards obtaining a permanent PFA order. Permanent PFA orders can come after a temporary PFA order is granted by a judge. A judge will not authorize a final PFA order without giving the accused the chance to defend themselves.
Temporary Protection from Abuse Order
If someone seeks a PFA order, then he or she must first petition for a temporary PFA order. The individual must explain in detail why the court should protect them from the defendant. The alleged must be physical or sexual in nature and is expected to be stated in detail in the petition. The court will look for important factors like when and where the alleged abuse took place in determining a temporary PFA.
This first hearing is conducted ex parte, without the defendant or an attorney present. The judge who hears the petitioner will determine if a protection order is necessary and will issue a temporary PFA and set a hearing for a final PFA order within ten days. The temporary PFA order is meant to protect the plaintiff at least until the final hearing takes place.
Hearing Process for a Protection from Abuse Order
A final PFA order will only be granted after a formal hearing. In PFA hearings, both plaintiff and defendant will be allowed to present their cases to the judge. This can involve the admission of evidence, testimony, or both. The person seeking the PFA must prove beyond a preponderance of evidence standard that some sort of physical or sexual violence occurred to be granted a final PFA from the judge.
Final PFA hearings typically take place within ten days of the issuance of a temporary order. The Pennsylvania rules of evidence and court procedure govern these hearings, so it is important to be familiar with these standards.
Final Protection from Abuse Order
Once a final PFA hearing takes place, a judge will decide whether to grant a final PFA based on the evidence presented at the hearing. If a final PFA is ordered, then it can remain in place for up to three years.
Final PFA orders have broad power and can do the following things:
- Order the immediate halt of any threatening, abusive, or harassing behavior against the petitioner
- Order the defendant to move out if they live with the petitioner
- Order temporary custody of any children to the petitioner
- Order and regulate visitation rights to the defendant
- Order the defendant to turn over any guns that he or she owns
- Order no contact from the defendant to anyone named in the order
A final PFA order can also include restitution. The judge can also award attorney's fees to be paid to the plaintiff by the defendant. If the defendant's actions incurred any additional costs, such as medical costs, then the judge can make the defendant pay for those costs. If temporary custody is awarded to the petitioner, then the defendant can request a separate hearing to determine custody in the long term.
Any violation of a temporary or final PFA order is considered criminal contempt of court. A defendant can be charged criminally and will have the right to have a criminal trial on any alleged PFA violations. If a judge finds that the defendant violated a PFA order, then the defendant can be sentenced to jail for up to six months and can be assessed a fine of up to $1,000.
Can a PFA Override Existing Child Custody Orders?
Yes, in certain cases. A temporary PFA can immediately revoke custody rights if the judge believes that you are either a threat to your kids or that you might try to take off with the kids before the final PFA hearing. The legal standard changes, however, when the final PFA hearing takes place. A judge cannot revoke your child custody rights unless one or both of the following circumstances are true:
- If your children are specifically named in the protection order and/or
- The judge believes you are likely to abuse the children.
PFAs have the power to temporarily override custody orders by parents who don't want to go through the full legal process for custody or if a parent fears that their child is facing imminent endangerment.
If a PFA Order Revokes My Custody Rights, Do I Still Have to Pay Child Support?
Yes. If you are under a previous child support order, then those requirements will continue even if a judge revokes your custody rights in a PFA hearing. If you would like to have your child support orders changed due to the revocation of custody, then you will have to petition the court to do so.
A PFA order may also add extra financial requirements that may or may not be included in your child support obligations. These extra financial requirements can be ordered to pay for any medical costs that resulted from the alleged abuse. If you previously lived at your home and a judge required you to leave due to a PFA, then you may also still be required to pay rent or your mortgage payments even though you are not allowed to live there any longer.
If a petitioner of a PFA wants the financial orders of a PFA to become permanent, then he or she must file a separate complaint for support within two weeks of the PFA order from the judge. If the petitioner does not do this, then the financial provisions will expire.
Are Custody Rights Restored When a PFA Expires?
It depends on the provisions of the PFA order and how it affected custody. If the order only prevented you from seeing your children while the PFA was active, then that order will expire when the PFA order expires. If the judge completely revoked your custody or visitation rights, then you will likely need to re-establish the parameters for custody or visitation once the PFA expires through the court system. This may require negotiations or additional court appearances.
Can a PFA Order Grant Custody If There Isn't a Pre-Existing Custody Order?
Yes. If there is not a pre-existing custody order in place, then a judge may specify them in a PFA order. If there are allegations of child abuse, then a judge can award temporary custody to the petitioner. A judge can also cancel a defendant's custody rights in a PFA order, can grant partial custody, or can regulate supervised visits under specific conditions. If you have legal questions, then call us at The Lento Law Firm today so we can help!
Contact the Lento Law Firm Today
If you have questions about PFA proceedings, then it is important that you speak to an experienced attorney. It is important to know how the protection from abuse process works if you are facing a potential PFA order against you. Attorney Joseph D. Lento helps clients with PFA and custody concerns day in and day out throughout Pennsylvania. To learn why Attorney Lento and the Lento Law Firm are the right decision to help you with your case, call us at 888-535-3686 or contact us online.