When a defendant is served with a Protection from Abuse (PFA) in Pennsylvania, whether in Philadelphia, Montgomery, Delaware, Bucks, Chester County, or anywhere in the state, a defendant often has many questions and concerns. Now that I have been served with a PFA, what do I do? Do I need an attorney for a PFA hearing in Pennsylvania? Will the plaintiff have an attorney? Can I contact the PFA plaintiff at all pending the final hearing? Can someone else contact the PFA plaintiff for me? How can I get back into my house to get my belongings? The list of possible questions when a Protection from Abuse order is issued against a defendant is countless. One question that PFA defendants in Pennsylvania often have is whether a PFA will show up on the defendant's "record" or on a background check.
What is a PFA in Pennsylvania?
For a complete understanding as to if and when a Protection from Abuse case will show up on a person's record or background check, an overview of what a PFA is in Pennsylvania, and what a PFA involves, is in order.
There are of course relationships, between husbands and wives, boyfriends and girlfriends, same sex partners, and so forth, that are more difficult than others. Parties in such a relationship may have to deal with more than one PFA over the course of the relationship. More often than not, however, a defendant is served with a PFA once in their lifetime.
Facing a PFA for the first and only time in life can be a traumatic experience. Defendants, who otherwise have not exposure to police or the court system for example, can feel helpless and have no idea where to turn for assistance. Assistance is available, however, often in the form of family support, and also often in the form of an attorney who can guide the PFA defendant through the difficult steps ahead.
The first thing that a Protection from Abuse defendant in Pennsylvania must understand, however, is exactly what it is they are facing. A PFA is an order entered by the court to protect victims of domestic abuse, often in the form of domestic violence, spousal abuse, or child abuse, from their abuser.
Pennsylvania Family Law allows a PFA to be issued between family or household members, sexual or intimate partners, or persons who share (biological) parents (such as brothers and sisters). Specifically, under 23 Pa. C.S. § 6102(a), an adult (over the age of 21) or emancipated minor can seek a Protection from Abuse order in Pennsylvania for abuse done to the plaintiff or to the plaintiff's minor child by a family or household member. The list of family or household members includes:
- The plaintiff's husband or ex-husband
- The plaintiff's wife or ex-wife
- A person who lives with the plaintiff as a spouse
- The plaintiff's brother or sister
- The plaintiff's parent or child
- A family member related to the plaintiff by blood or marriage
- A current or former sexual or intimate partner
- A person the plaintiff has a child in common with
The list of who can be granted a Protection from Abuse in Pennsylvania is somewhat expansive, but some relations will not be covered by the PFA statute. For example, unless any of the above conditions are met, (former) friends, aunts and uncles, and so forth, cannot be granted a PFA.
What is the difference between a temporary PFA and a final PFA in Pennsylvania?
When a person seeks protection from abuse in Pennsylvania and the "statutory basis" is met (the reason for seeking the protection), a "temporary" PFA order is issued. By law, a "final" hearing will be held withing ten (10) days for the applicable Family Court, be in Philadelphia, Montgomery, Delaware, Bucks, or Chester Family Court, will hear the case (where testimony can be given and evidence can be presented by the plaintiff and defendant and any relevant and otherwise-appropriate witnesses) and decide if a "final" PFA should be granted for the plaintiff, which consequently would be issued against the defendant. The consequences of a "final" PFA can be significant and long-term because a final order can last for up to three (3) years in Pennsylvania. Both plaintiffs and defendants should also understand that the plaintiff can petition (ask) the Court to extend the length of the final order; if such a request is granted, a three year final order, for example, can in fact extended to more than three years. In effect, the protection from abuse afforded to the plaintiff will continue, and the potential consequences that the defendant faces can also continue. In cases where child custody is involved or where a defendant is evicted from a shared residence, such consequences can be difficult to endure.
Is a PFA in Pennsylvania a criminal matter?
People involved with Protection from Abuse matters often have concerns as to what may or may not show up on a background checks. In light of the way society is today, background check are performed for many various reasons, such as for employment purposes, when renting an apartment, when applying to schools such as graduate programs, when applying for or renewing a professional license as with doctors, nurses, teachers, and so forth.
Although plaintiffs may also prefer that their involvement in a PFA not be be disclosed to the public, defendants often have more at stake in what is disclosed. In Pennsylvania, a Protection from Abuse order is granted by "civil" court; not criminal court. Because of this, the issuance of a PFA will be on a person's "civil" record and not his or her "criminal" record. Nonetheless, whether a plaintiff or defendant, for many people, a PFA on a court record can potentially have negative effects on employment or school opportunities, and also their personal reputation.
Can a PFA record be "cleared" or "expunged" in Pennsylvania?
Whether the question arises when a defendant is first served notice of the PFA, or after the final hearing takes place and a decision is made on whether a final PFA is granted or not, defendants in Pennsylvania PFA cases often ask, "Can I expunge a PFA record?" Although a person's PFA court record is arguably not as easy to obtain as a person's criminal record, it is possible to access and obtain the record of what happened in the PFA case; an employer for example. For this reason and others, people often want to know if a PFA can be cleared or removed from their record, and if possible, how so. In Pennsylvania, the legal term for clearing a record has different variations for what kind of record is involved, but removing a PFA record would be called an "expungement." Regretfully, expunging a PFA record is not easy.
Expunging a PFA record in Pennsylvania is only allowed in certain circumstances. To complicate matters further, Pennsylvania law does not specifically address when or how a PFA can be cleared from a person's record; the legal "authority" comes from Pennsylvania court decision that have addressed the issue.
In 1998, the Superior Court of Pennsylvania, the court of appeal "above" trial court (the Court of Common Pleas), addressed the whether a PFA can be expunged in Pennsylvania. In the case of P.E.S. v. K.L., a PFA was filed, but neither the plaintiff or defendant appeared at the PFA trial in the Court of Common Pleas. Because neither party appeared, there was no finding of abuse at the final hearing, but the plaintiff's original PFA filing remained on record. The Superior Court, in P.E.S., stated that the expungement of a PFA from a person's record would be allowed in limited circumstances where a PFA respondent, also known as the defendant, seeks to protect his or her reputation. People considering whether a PFA can be cleared from their record should understand that a final PFA was not issued in the P.E.S. case; there was only the original PFA filing that was not pursued by the plaintiff and was not addressed by the defendant.
The Pennsylvania Superior Court addressed the issue of whether a PFA record can be expunged again in 2002. In the case of Carlacci v. Mazaleski, the plaintiff's PFA filing was addressed by the trial court and a "temporary" PFA order was issued against the defendant. After the temporary PFA order was issued, but before the final PFA hearing took place, the plaintiff and defendant executed an agreement that the the temporary PFA order was null and void. The Superior Court reasserted what was stated earlier in that a PFA defendant has the right to petition the Court to expunge a PFA petition against them to protect their reputation. In Carlacci, the Superior Court added that when a PFA petition is dismissed as was the case in P.E.S., or the PFA proceedings do not go beyond the stage where a temporary PFA order was issued, the Court does not need to go further in determining if a defendant has the right to have the record cleared.
Potential Consequences of a Final PFA Order in Pennsylvania
The consequences when a temporary PFA order is issued against a defendant can be significant enough, but when a final PFA order is issued, the consequences can be that much more severe. Being evicted from one's house or apartment for ten days is burdensome enough for a defendant, but when evicted for three years when a three-year final PFA order "with eviction" is issued, the effect can be devastating. As to other potential consequences, no parent wants to be denied being able to see their child or children, but when a plaintiff files a PFA on behalf of a child and a temporary PFA is granted, the Court can order as such until a final hearing on the matter. PFA final hearings get continued for various reasons; for example, additional time is at times needed to prepare for trial, plaintiffs may request additional time to be represented by an attorney as a tactic to extend the temporary order until at least the next "final" hearing date, attorneys involved in the matter may have scheduling conflicts, and so forth. When a ten day temporary PFA order gets extended potentially time and time again, the fact that parents can at times be ordered to have no contact with their children until a decision on the matter is made at a final hearing is a terrible ordeal for any parent.
In addition to the above potential consequences, a final PFA order can have other unexpected consequences; one such consequence being the potential for criminal charges. Police and other law enforcement are arguably reluctant to become involved in domestic matters between people. When a temporary PFA has been issued against a defendant, the police understand that the defendant has not had his or her "day" in Court in the sense that the defendant has not had a chance to defend themselves against the allegations made by the plaintiff. When a final PFA is issued against a defendant, the police are arguably more likely to respond to allegations made by the defendant after the final PFA is issued; allegations that would be a violation of a PFA if true, and which can result in criminal charges.
When a person is alleged to have violated the final PFA, the unexpected consequences of a Protection from Abuse order can ultimately become a reality. Although the PFA itself is a "civil," non-criminal matter, a person that is alleged to have violated the final PFA can be charged with the criminal offense of "criminal contempt."
Can a final PFA order be "cleared" or "expunged" in Pennsylvania?
Until the Pennsylvania Superior Court addressed and decided the case of Commonwealth v. Charnik, it was not clear in Pennsylvania whether a PFA petition that resulted in a final PFA order could be expunged after the terms of the final PFA expired; whatever those terms may be - three years, two years, or one year for example.
In Charnik, a final PFA had been issued against the defendant. After the final PFA was issued, the defendant was accused by the plaintiff of violating the PFA and was charged with "indirect criminal contempt" as a result. The plaintiff later filed a Petition to Withdraw the Protection from Abuse Order. The Pennsylvania Superior Court, when the matter was heard on appeal, ruled that Charnik was distinguishable from prior cases that the Court had addressed because the PFA order was final, there had been a hearing on the evidence, and the trial court determined that the protection of the plaintiff via a PFA was appropriate. Therefore, the Superior Court declined to allow for the expungement of a final PFA order under these circumstances.
As Things Stand Now
Unless higher courts in Pennsylvania - the Superior Court or the Supreme Court - further address final PFA orders and decide that they may be expunged, final Protection from Abuse orders in Pennsylvania are not subject to expungement as things stand now. Only PFA orders that have been dismissed or fail to go beyond the temporary PFA order stage can be expunged from the defendant's record, and even this procedure is not automatic. It is especially important for defendants involved in PFA proceedings to keep in mind; this is true for many people regardless of place in life, and is especially true for people in professions where a PFA order can jeopardize employment opportunities or professional licensing, such as doctors, nurses, teachers, police officer, other law enforcement officers, and so forth.
Of course, in some circumstances a PFA is absolutely necessary for the protection of a plaintiff, and later clearing of a defendant's record is not an appropriate consideration; especially because past PFA cases, and how they were resolved, can be considered in subsequent PFA cases. If the plaintiff and defendant can agree to terms under an agreement without requiring a final PFA order (an "agreement without admission"), however, this can save the defendant the considerable future difficulties explaining the court record.
Pennsylvania PFA Attorney | Pennsylvania Protection from Abuse Attorney
The stakes are high in PFA cases for both plaintiffs and defendants, and at times, children involved in such matters. Plaintiffs genuinely seeking protection need to make sure that everything that can be done to obtain a final PFA is done so that they or their loved ones can be protected from potential future abuse. Defendants responding to the allegations in a PFA must make sure that their interests are protected because when a PFA is issued, the consequences can be severe and long-term, and can affect not only a defendant's employment, professional, and academic goals, but also basic rights, including where they call home or if they can see their children.
Ultimately, the consequences of a PFA case, including the initial PFA filing, the prospective temporary PFA, and the prospective final PFA, can have both short-term and long-term consequences. As explained above, these consequences include the PFA appearing on a person's record, appearing on a person's background check, and the like. In many instances it may not be possible, but to try to avoid the consequences of a PFA appearing on a record or a background, or to determine if a PFA can be expunged, contact attorney Joseph D. Lento today to learn how he can help.