The Protection from Abuse order (PFA) in Pennsylvania helps victims of abuse seek legal protection from their abusers. The PFA is a type of protection order that one individual can take against another. In some cases, the PFA can protect the victim's children from abuse as well. When a PFA order names a child or children for protection, it brings custody into question.
In Montgomery County and throughout Pennsylvania, the court can legally address custody in a PFA. What happens if your child's other parent has served you with a PFA? Below are some common questions related to custody and PFA orders in Montgomery County.
What is a PFA?
A PFA order is a Protection from Abuse order. It's a type of restraining order, allowing an individual to request legal protection from abuse or the threat of abuse by another individual. You can only file a PFA against a member of the family or household, an intimate partner, or the co-parent of your child. A PFA orders the defendant (the person it's filed against) to stop abuse, threats, harassment, or stalking of the plaintiff (the person filing the PFA).
The PFA can also do the following:
- Prevent the defendant from entering the plaintiff's home—even if they share a home—as well as their school, business, or place of employment
- Prohibit the defendant from contacting the plaintiff
- Require the defendant to reimburse the plaintiff for expenses incurred as part of the abuse
- Order the defendant to pay temporary child custody/spousal support to the plaintiff
Can the court deny a PFA order?
If an individual asking for a PFA doesn't meet the requirements, they could be denied. In Montgomery County, two common missing requirements are the type of harm and the class of defendant. To get a PFA, a plaintiff can only allege abuse covered by the Protection from Abuse Act. The plaintiff must also have a relationship with the defendant covered by the PFA Act. Montgomery County courts can also remove or overturn a PFA that's in effect. A judge may dismiss a temporary PFA at a final hearing as well.
Can I see my kids if my ex got a PFA against me?
When an individual requests a PFA, they can ask for restrictions on contacting or visiting their children. If the plaintiff alleges and the court finds that the defendant has abused or threatened to abuse the children, or that the defendant has violated a custody order within the last two years, the PFA can prohibit the defendant from seeing or contacting the children. Unfortunately, if your ex wants to restrict your contact with your kids and the court accepts, you would be violating the PFA to see your children.
There are different types of PFAs, and your ex would have to file a temporary (“ex parte”) or emergency PFA before filing a more permanent one. The temporary PFA usually lasts for 10 days; after that time, the Montgomery County Family Court will schedule a final PFA hearing. At the hearing, a judge will either lift the temporary PFA or issue a final PFA (which lasts three years).
What happens if I violate the custody provision of a PFA order in Montgomery County?
If you violate any part of the PFA order, you may be held in criminal contempt of court. You could face up to six months in jail and a fine of up to $1,000. You would also not have the right to a trial by jury, but you would a have right to counsel. If you're convicted of violating the PFA, the court can also extend the order. The plaintiff can also file a petition for civil contempt, alleging that you've violated a provision of the PFA. If you're found to be in civil contempt, you could have jail time for up to six months. If you have other pending court cases, your violation of the PFA can be used as evidence against you.
Does my kid's school know about the PFA against me?
The Montgomery County Family Court reports a PFA to a child's school if the child is named in the protection order. The school cannot provide your child's information to you, either. If the PFA bars you from contacting your children, you may not do so through their school, and the school must take steps to prevent it. You also cannot attend any educational events or programs, like recitals, sports matches, parent-teacher conferences, or graduations.
Can I challenge a PFA so I can see my children again?
You can challenge a PFA, but you won't have a chance to defend yourself until the final PFA hearing. For the duration of a temporary PFA (10 days), you'll have to stay away from your children if the PFA prohibits you from seeing them. If you want to challenge a PFA, you'll first have to defend yourself at the final PFA hearing. Hiring a family law attorney significantly increases your chances of leaving the hearing with a favorable outcome. If the judge does enter a final PFA, you can still fight it. You have two options:
- File a Motion for Reconsideration within 10 days of the hearing
- File an appeal with the Superior Court of Pennsylvania within 30 days of the hearing
Does a PFA override a child custody order?
In special circumstances, yes—a PFA supersedes pre-existing custody orders. If the court finds that the defendant is likely to abuse the children or remove them from the jurisdiction before the court's final PFA hearing, it can take away custody. If your children are not named in the protection order, however, the court cannot revoke your custody rights unless it finds you likely to inflict abuse upon the children.
Some people use a PFA to obtain temporary custody of their children without going through the full custody process in Montgomery County Family Court. Others might use a PFA to take custody away from an ex-partner or co-parent if they feel their child is in danger. If your custody or visitation rights are taken away as a result of a protection order, you should start the process of reversing the order right away so you can regain custody rights.
Do I have to pay child support if I'm served with a PFA?
Potentially yes, a protection order can require a defendant to provide financial support to the plaintiff and children if there is a finding against you. If you have a duty to support your accuser and their children, the court may require you to pay for the following:
- medical support
- health coverage
- unreimbursed medical expenses caused by your abuse
- rent or mortgage payments
Even if you're evicted from your home because of the PFA, you might still have to make rent or mortgage payments. If your accuser wants to enforce the PFA's financial support provisions, they must file a complaint for support within two weeks of the PFA taking effect. If they don't, the part of the PFA requiring you to pay financial support is void. The Court can also order the Plaintiff's attorney's fees to be assessed against the Defendant if found responsible for abuse.
Can I get a PFA on behalf of my child?
Yes. Minors cannot file a PFA on their own and need a parent, family member, household member, or guardian to request the PFA for them. To qualify for legal protection under the Protection from Abuse Act, the abuser must be a family member, sexual or romantic partner, or household member.
The process for obtaining protection is generally the same for adults as it is for minors. You can fill out a temporary PFA petition for your child at the Montgomery County Courthouse, at the Protection from Abuse Department. You must put your child's name and information on the petition if you're seeking protection for them. When the hearing takes place 10 days after filing the petition, you must accompany your child as well. If the abuser is the child's parent and the PFA order is granted, the protection order supersedes custody and visitation rights.
Can I get child custody rights back after a PFA expires?
When a PFA expires, you are no longer bound by the restrictions it imposes on you. If you were not prohibited from seeing your children before, you may see them again. Be careful not to violate the PFA until after the date it expires, however. The plaintiff might be gathering evidence for a renewal of the PFA, extending it for another three years. If you contact the plaintiff or children before the order expires, your accuser could use that is evidence against you in renewal of the order. If your custody rights were taken away as part of the protection order, you may have to re-negotiate custody and visitation arrangements once the order expires.
Can I file a PFA during a custody proceeding?
Yes. If you and your child's other parent are in the middle of custody proceedings with Montgomery County, you can file a PFA against the other parent if there's been abuse or risk of imminent abuse. A custody order may not provide the protection you and your children need, so a PFA could be necessary. Also, the court cannot deny the PFA order because it would give one parent custody advantage. If you petition for a PFA and provide adequate evidence for it, your ongoing custody or divorce proceeding shouldn’t affect it.
Can a PFA grant custody if there's no pre-existing custody order?
Yes, a PFA can set forth custody arrangements if there are none in place. The protection order can grant temporary custody to the plaintiff and deny custodial rights to the defendant if the abuse in question involves the two parties' children. The court can prohibit custody, partial custody, or unsupervised visitation to a defendant for one of a few reasons:
- If the defendant has abused or threatened to abuse the children of the two parties involved in the protection order
- If the defendant has abused the plaintiff or another child (not the child named in the PFA), the court may allow custodial access to the defendant, but only if it's supervised.
In the case of supervised visitation, a third party, such as a relative, would be responsible for supervision and would have to sign an affidavit. The court may also allow visitation only in a secure facility.
Can I file for custody if I'm subject to a PFA order?
Yes. While the PFA order is in effect, nothing bars either party from petitioning for custody. If you're under a PFA, you can petition for custody, and it may granted, so long as it doesn't conflict with the PFA order. If your children are protected under the PFA, and you've been denied custodial or visitation rights through the PFA, then a custody court would not be able to grant you custody, as that would violate the PFA.
If your children aren't protected under the PFA, you can petition for custody and it may be granted to you. Keep in mind, however, that one of the factors for granting custody is each parent's and adult household member's past and present abusive conduct. This conduct can include abuse as it's defined under the PFA Act.
Where do I file a PFA and where will my PFA hearing be?
In Montgomery County, you file a PFA in the Protection from Abuse Department, on the first floor of the Montgomery County Courthouse. The courthouse is located at 2 E. Airy Street, Norristown, PA 19401.
PFA hearings also take place at the Montgomery County Courthouse in Norristown. The court determines the date and time of the hearing. If you're served with a PFA, the order will state the date, time, and location of your hearing.
What does the court consider when deciding custody rights as part of a PFA order?
PFA orders may address custody and can revoke a defendant's custody rights if the court finds that the defendant is a threat to the child or children involved. The court looks at whether the defendant abused the children in the past or poses a risk of abuse in the future. It can also deny custody if the defendant has been convicted of violating a previous custody order in the past two years.
If you have questions about custody and the Protection from Abuse Order, you should contact a Family Law attorney to help you. The PFA and custody rights overlap, but it's difficult to know how the two areas overlap. A lawyer can help you understand your rights and what the best course of action is concerning custody when there's a PFA involved.
Attorney Joseph D. Lento and the Lento Law Firm help people dealing with custody proceedings and as well as a PFA. Call the firm at 888-535-3686 to schedule an initial consultation with an experienced Family Law attorney.