In Pennsylvania, there is a specific law that is meant to protect victims of abuse that is known as the Protection from Abuse Act which was passed back in 1990. Under the Act, anyone who alleges that they are 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 set restrictions on the alleged abuser, including preventing contact from him or her, as well as restricting specific actions and activities. If there is an active PFA order in place and you would like it changed or updated, then it is important to understand the legal process to potentially have that done. If you have legal questions, then it is essential that you speak to an experienced criminal defense attorney.
What is a Protection from Abuse Order?
A PFA order is a type of restraining order that a judge can grant to regulate an individual's actions and conduct. Those who allege they are victims of physical or sexual assault can be protected under the provisions of a PFA order. Any violations of a granted PFA order will result in immediate arrest and likely criminal charges. PFA orders can be enforced anywhere across the state and the country.
Who Can Seek a Protection from Abuse Order?
PFA orders are only available to specific people. For a PFA order to be available, the petitioner must be in a “qualifying domestic relationship” with the defendant. A qualifying domestic relationship requires either an intimate relationship or a family connection with the defendant. Examples of this can include:
- Current or former spouses (including same-sex couples)
- Current or former dating or intimate partners
- Relatives (by blood or marriage) that live together
- Parents and their kids
Anyone under 18 years old who wants a PFA must have an adult petition for them. PFA orders are not available for anyone not in a qualifying domestic relationship with the defendant. If someone cannot petition for a PFA, then they may qualify for a different type of restraining order under Pennsylvania law.
What Happens When a Final PFA is Granted?
Once a final PFA is granted, then it can be valid and enforced for up to three years. Some of the provisions that a judge can include on a final PFA include:
- Prohibiting the defendant from threatening, abusive, or harassing behavior against the petitioner
- Prohibiting the defendant from sharing any residence with the petitioner
- Granting temporary custody of any children in common
- Setting visitation rights of any children in common
- Ordering any guns to be submitted to the court
- Ordering the defendant to have no contact with the petitioner
- Restitution for any costs incurred because of the defendant
Violations of any PFA provisions can result in immediate arrest and additional charges. If someone is found responsible for a PFA violation, then it can result in a six-month jail sentence and a fine of up to $1,000.
How Long are PFA Orders Valid in Pennsylvania?
PFA orders can be granted for as little as one month and as long as three years. A final PFA can be renewed by the petitioner when its protections are about to expire through a request to the court. While active, PFA orders are valid until they expire or are changed by a judge. A PFA order cannot be canceled by the parties involved and can only be canceled or modified by a judge.
What is a Petition to Modify Protection from Abuse Order?
If you would like to change or update a PFA order, then you must file a Petition to Modify to do so. In this petition, you will have to explain to the judge what you would like modified and why. The judge will read and potentially take testimony to determine if the modification or update is in the best interests of the parties. If the judge agrees with the changes, then he or she can make changes to the PFA order as desired. If the judge does not agree with the proposed changes, then he or she can leave the PFA order as-is. One key element is the judge's opinion on whether the petitioner is in danger of being abused by the defendant if any of the PFA terms are modified.
If the petitioner is seeking changes to a final PFA, then the judge will want to be convinced that the petitioner is not being forced to do so against his or her will. It is important that the parties not have any contact against the orders of the PFA as the defendant is subject to criminal penalties for a violation of any no-contact order.
How Often Can a Final PFA Order Be Extended?
While final PFA orders can last up to three years, they can be renewed an infinite number of times if necessary. If the judge feels that there is a continued active threat of abuse, then the orders of a final PFA can be renewed and extended in up to three-year increments. If there are children in common between the petitioner and defendant, then this can prove especially difficult. To have a final PFA end, you must convince a judge that its protections are no longer necessary to protect the petitioner from the defendant.
Appeal Options for a Final Protection from Abuse Order Decision
If you disagree with the decision of a judge regarding a final PFA order, then you may have a basis for an appeal. You can appeal the overall order as well as specific provisions that are set by the judge. These provisions can include things like required counseling, financial support, as well as orders regarding child custody and visitation rights. If you choose to file an appeal of a judge's decision regarding a final PFA, then you can do it in one of two ways:
- A motion for reconsideration with the same judge, or
- An appeal of the PFA orders to the Superior Court.
Motions for Reconsideration of a Final PFA Order
Motions for reconsideration are made back to the original judge who made the decision. If you want to ask the judge to reconsider his or her decision, then you have ten days to file your motion from the date of the judge's decision. In asking the judge to revisit their decision-making, you will need to convince the judge that a serious mistake was made that can change the case entirely. Some examples of strong issues for motions for reconsideration include:
- The court incorrectly used the law,
- A change in the law that makes a material difference, or
- A manifest injustice would take place against the individual seeking reconsideration.
A motion for reconsideration is often a motion that focuses on narrow issues and is not a general “second shot” at the case. If the judge is convinced that certain legal mistakes were made or certain evidence was not properly examined by the court, then a motion for reconsideration can be successful.
Final PFA Appeals to Superior Court
Your other appeals option is for a formal appeal to the appropriate Pennsylvania Superior Court within 30 days of the judge's signed order regarding the final PFA. You can first file a motion for reconsideration before filing an appeal. In filing an appeal, you must do several things, including:
- Filing a specific form called a Notice of Appeal
- Requesting and obtaining a copy of all available transcripts of the final PFA hearing and any motions for reconsideration
- Researching and writing a legal brief that outlines the law and how the law should be applied in your favor
- Properly filing the brief within the allotted time and the court's requirements
- Being available for any oral arguments
Appeals are specific in their scope and are a review of whether the judge did their job correctly. In appealing a case, you are claiming that the judge made legal mistakes or mistakes in fact-finding that would change the result if these mistakes did not take place. Appeals are not an arena to retry or reargue your case, it is a legal review of the judge's handling of the case.
The appellate court has a few main options when hearing an appeal. It can affirm the judge's decision, can reverse the judge's decision, or it can make a specific ruling and send the case back to the original court for further proceedings. It is possible that an appellate court can find that a judge made a mistake but can deem it a harmless error and affirm the judge's decisions. Appeals are largely based on legal research and writing and are much less based on in-court arguments. It is important to have experienced help when filing an appeal as they are very technical and require a specific approach.
What Kinds of Issues Can Be Appealed in a Final PFA Order?
Not all issues are the basis for a strong appeal. If you are looking to appeal a final PFA order, then you must convince a higher court that mistakes were made that require a change in the decision of the case. If an attorney made a legal objection about an issue, then that issue can be raised with the appellate court. An attorney objecting to a legal issue is known as preserving an issue for appeal. If an objection was not made about an issue, then it is unlikely that this issue will be revisited by the appellate court.
If you are seeking to file an appeal of a final PFA decision, then the main types of issues that can be appealed include:
- Attorney misconduct
- Judicial misconduct
- Newly discovered evidence
- A mistake in the application of the law
If you are unable to provide legal reasons regarding one of the categories listed above, then you will likely fail in your final PFA appeal. A successful appeal will detail where and how the judge made specific mistakes in applying the law when he or she made their decisions regarding the final PFA. It must also be shown that the mistakes made affected the final decision of the court and that the decision should be changed because of this. If you cannot show that the mistakes made would have made a difference in the outcome, then the court can agree that mistakes were made but not change the outcome of the case. When appealing, it is important that you can demonstrate that the mistakes were material to the outcome of the case.
Can a Petitioner Cancel a Final PFA in Pennsylvania?
Yes, but the petitioner can only seek to cancel the PFA, they cannot cancel the PFA on their own. The petitioner is the only person who can seek cancellation from the presiding judge. For a judge to cancel a final PFA, he or she must be convinced that the petitioner is no longer in danger of abuse or harm by the defendant. The judge will ask the petitioner if he or she is being threatened or feels threatened to ask for the cancellation of the final PFA before making a final decision whether to cancel the final PFA. There are several ways that a final PFA can be changed in Pennsylvania. 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 change or update the provisions 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 how final PFA orders are determined and ordered by judges. Attorney Joseph D. Lento and his team have helped countless clients across Pennsylvania address and resolve concerns related to Protection from Abuse orders at all stages of the process, including trial, appeal, and beyond, and they can help you too. To learn why the Lento Law Firm is the right choice, call us at 888-535-3686 or contact us online.