Nothing says “I love you” like a restraining order, or at least, that’s the title of a song by post-hardcore band Our Last Night. All kidding aside, a restraining order – a/k/a Protection From Abuse Act Order (“PFA”) – is serious business.
No level of abuse should be tolerated. Any amount of abuse is too much. For this reason, the Pennsylvania legislature created the concept of a PFA, which creates an immediate right to have a person tossed in jail, if he violates either the temporary or “permanent” PFA.
A PFA can save a person’s life.
Unfortunately, abuse can go both ways. It is not uncommon for the PFA procedures in PA to be abused by those looking to go on the offense against a current (or former lover) or family member when no “abuse” or fear of abuse ever existed. So long as a person is willing to testify that another person (related by blood, prior sexual relations, or affinity) was physically abused or made serious threats, the entry of a PFA order is a near certainty unless the party defending the action has some pretty reliable evidence to the contrary. This is the case mostly because the courts err on the side of separating the parties and entering a PFA.
Meeting the threshold amount of evidence to obtain a PFA is easy for those willing to distort the truth. The term “abuse” is defined pretty liberally in the PFA statute:
23 Pa.C.S. § 6102 (2012)
§ 6102. Definitions.
(a) General rule. –The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise:
“Abuse.” –The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:
(1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon.
(2) Placing another in reasonable fear of imminent serious bodily injury.
(3) The infliction of false imprisonment pursuant to 18 Pa.C.S. § 2903 (relating to false imprisonment).
(4) Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services).
(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses). (Emphasis added).
As you can see, a PFA can be warranted where no physical harm results. Rather, an “attempt” to cause “fear” is enough. The definition is broad enough to include stalking or repeated interaction, which could mean having coffee at the same Starbucks as the Plaintiff, by chance or routine, every day, or driving past the plaintiff’s home if it’s on the defendant’s way to work every day, so long as that puts the plaintiff in “fear.” (Do you see how this well-meaning statute can be abused?)
The blind entry of a PFA can cause enormous prejudice to the defendant, who may have been innocent of any wrongdoing. A PFA can be used to wreak the following on an innocent person, who may face one or all of the following through an improper PFA:
Immediate eviction from his residence with the Plaintiff
Loss of freedom to travel down a street where the Plaintiff lives, even if it’s on the defendant’s way to work
Loss of the right to possess firearms even if the Defendant is and avid gun collector or merchant of weapons for a living
An order for child support even though no formal claim for support had been filed through the family courts
The court costs of the PFA (over $200),
The PFA can be served on the Defendant by sheriff or constable when the defendant is at work, ruining his reputation;
The PFA can be used for leverage in any custody, divorce, or support proceedings, and
The court may impose other relief that the court deems fair and just.
Most employers only search one’s criminal records via the state police website, but some also check the civil dockets for blemishes. We know for sure that those applying for section 8 housing will be subject to a search of PFA instances.
It is possible to have a temporary PFA expunged from the civil docket (which based on only one party’s side of the story, also called ex parte), but not a permanent PFA. This is because, expungement applies to the removal of charges and accusations, not actual findings of fact related to a full hearing where all parties may attend. Thus, if you are found to be an abuser following a hearing where you had a chance to testify, that record cannot be removed. Thus, to be clear, if you go to court on the PFA and lose such that it becomes permanent, then the permanent PFA cannot be expunged. An excellent analysis of this concept appears in a blog by Linda A. Kerns, who practices in Eastern PA.
For these reason, if you have had a PFA served on you, you should immediately seek experienced counsel to defend the action or get the opposing party to accept some deal short of permanent PFA. We get at least one call a month from some poor, unfortunate individual who decided to attend the hearing on the PFA alone (or with a family “friend” attorney who doesn’t handle these cases regularly) and came away from the process with a 3 year PFA against him.
Also keep in mind that, if you go to a hearing and lose, the PFA order is not the only public record, but rather, the testimony against you is also recorded and a transcript of the same can be ordered by anyone with a beef against you, so he or she can read about all the different forms of abuse according to at least one witness under oath.
We strongly recommend that you seek experienced counsel in defending against any PFA action. Out East, consider Linda A. Kerns, Esquire, who wrote about whether a PFA can be expunged. In Harrisburg and Millersburg, consider Shaffer & Engle, which did a nice analysis of “bad faith PFA“s on their blog. For all matters in Western PA including Pittsburgh (and all of Allegheny County and the surrounding Counties – Beaver, Butler, Washington, consider our Pittsburgh PFA lawyers.
Call or email our law firm any time for a free consultation.
Posted in A Free Consultation, Child Custody, Child support, Custody, Divorce, Family Law, Lawyers, Pennsylvania, PFA, Pittburgh, Uncategorized | Tagged beaver, butler, custody, divorce, pfa, protection from abuse, support, washington | 2 Comments »
At the end of 2011, the custody laws in Pennsylvania were changed. The courts still look at the best interest of the child above all. Interestingly, however, Section 5328 of the new legislation sets forth 15 factors that a court must consider when awarding custody.
We practice in Western PA. Out in Eastern PA, the law firm of Karen Ann Ulmer, PC (“Eastern PA”) was among the first to blog about this and set forth the 15 factors as follows:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child’s education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party’s household.
(15) The mental and physical condition of a party or member of a party’s household.
Section 5323 provides that the court must detail the reasons for its decision either on the record in open court or in a written opinion. Therefore, the court must go through each factor that it considered and explain why it decided as it did. So far, the Superior Court has been strict in upholding this requirement. In J.R.M. v. J.E.A., the court awarded primary custody to the mother and father appealed on the basis that the trial court did not consider the 16 factors listed in Section 5328. 2011 Pa Super 263 (2011). The Superior Court granted the appeal, finding that the trial court did not properly consider the factors listed in the statute. Accordingly, all parties in a custody action should be prepared to argue on all of the relevant factors and also ensure that the court addresses all relevant factors in their decision.
Eastern PA aptly noted:
“Section 5323 provides that the court must detail the reasons for its decision either on the record in open court or in a written opinion. Therefore, the court must go through each factor that it considered and explain why it decided as it did. So far, the Superior Court has been strict in upholding this requirement.”
Great post, Eastern PA!
Pennsylvania has long clung to the presumption of paternity by estoppel, which means simply: if you hold yourself out as the parent, you are the parent, even if you are not the biological parent. Under this fiction, DNA evidence is not admissible. Some states are moving away from this somewhat archaic presumption. In the holding of K.E.M. v. P.C.S., No. 67 MAP 2011, 2012 WL 573635 (Pa. Feb. 21, 2012), the Pennsylvania Supreme Court recently declined an opportunity to do away with the presumption entirely, but it did add one ripple: the courts must look at the best interest of the child when applying the presumption of paternity by estoppel. There, the Supreme Court of Pennsylvania deemed that paternity in Pennsylvania by estoppel will continue in this Commonwealth. There, the biological mother acknowledged that she had an extramarital affair with the alleged father during the course of her marriage to her husband. Testing did establish that her husband was not the biological father of the child.
The alleged biological father asserted paternity by estoppel to defeat the child support claim and argued that the husband had established the father relationship with the child, adding that his involvement in the child’s life had been insignificant. Also, the mother and her husband remained married even though they were separated.
The alleged father maintained that he has little involvement in the child’s life and that the mother remained married to her husband, though separated. This prompted the lower court and Superior Court to grant his motion to dismiss the support action against him. The husband remained responsible for the child’s support. But then the Supreme Court of Pennsylvania had a look and reversed the lower court’s decision. Specifically the Supreme Court remanded to the lower court for proceedings with the following directive: the purpose of paternity by estoppel is to keep families intact and protect the best interests of the child. It was then up to the lower court to evaluate the best interest of the child based on a new evidentiary hearing. This left in tact the doctrine of paternity by estoppel but it must be supported by a consideration of the best interest of the child.
Before this new provision in the law, the party seeking to challenge an order to pay child support based on paternity by estoppel could defend on two grounds: (1) show that he did not hold himself out as the parent; or (2) show that he relied on the other parent’s false and fraudulent claim that he was the biological father, when he was not. This issue came up a few years ago in a case that was litigated in Allegheny County before the Honorable Judge Wetch and appealed to the Superior Court of Pennsylvania. The case was also profiled in the New York Times.
In that case, the mother was married to her husband, Mike, when she had a child (“L”) with another man, Rob. Her husband held himself out as the child’s father even though he knew he was not, eventually, and claimed that he had only done so because his wife had lied and told him was, in fact, the biological father.
This is how the New York Times described the case:
The real issue, her attorney, Todd Elliott, told the court, was that Mike didn’t really want to stop being L.’s father. ‘Every time he was given a chance to deny paternity, he never did,’ Elliott said, according to the transcript. ‘He signed consent order after consent order because he wanted to be the father. The testimony here today is that he only did it because of some philanthropic belief that he wanted to step up. That’s not true. . . . He fought for every other weekend. He fought for having her overnight on a Wednesday. He fought for having her not be able to leave the jurisdiction. These aren’t things that someone does because they are just philanthropic. He wants to be the dad; he just doesn’t want to pay support.’ Elliott’s accusation infuriated Mike, who believed it accurately described Rob, not him.
The hearing officer was persuaded by Elliott’s argument: Mike hadn’t been defrauded into admitting paternity after the DNA tests, and he had hardly abandoned L. after he learned the truth. Still, the officer ruled, Rob had also acted “essentially as a parent.” During the hearing, Stephanie testified that Rob was the biological father, and that he and L. loved each other. He had taken her on vacations to Disney World, Las Vegas and the ocean, celebrated at her birthday parties, bought her gifts and attended her soccer games and school activities. As such, the hearing officer ordered, Rob should help pay her support, too.
Despite being named a defendant in Mike’s lawsuit, neither Rob nor any legal representative for him ever showed up in court or contested the rulings. But Stephanie did. Her attorney argued in an appeal that parenthood shared by one mother and two fathers “would lead to a strange and unworkable situation.” So, the lawyer reasoned, Rob should not be forced to help pay for L.’s care. David Wecht, the state-court judge charged with hearing the appeal, agreed with Stephanie’s conclusions, albeit for different reasons. Pennsylvania law did not allow for the recognition of two fathers of the same child, he wrote in his opinion, and thus he could not order two men to pay paternal support. Wecht concluded that under the law, Mike was L.’s legal father. Fraud is the only way to rebut the key paternity doctrine, and Wecht, like the hearing officer, concluded fraud did not induce Mike to continue as L.’s dad after the DNA results; love did.
The superior court agreed with and fully upheld the lower court’s decision. The Supreme Court of Pennsylvania declined to hear the case. There, however, the issue was whether the lower court erred in failing to find fraud, not whether the presumption of paternity by estoppel should be abandoned or abrogated, which did not occur until recently, in K.E.M. v. P.C.S., No. 67 MAP 2011, 2012 WL 573635 (Pa. Feb. 21, 2012), as set forth above, and now the court may — and must — consider the best interest of the child when applying paternity by estoppel.
State Senator Lisa Baker said introduced a bill that mandates no judge enter an order changing the custody arrangement of a child of a deployed military service person. This custody law came in response to a complaint by grandparents who lived in her senatorial district and were barred from seeing their grandson during their son’s deployment to Iraq.
The separation of children from their parents serving in the military overseas is already a challenging situation. It gets compounded when a child is also separated from the deployed parent’s relatives.
On April 12, Governor Tom Corbett signed the bill into law in Pennsylvania.
Under the new law, a service member who is being deployed abroad may now petition the court for a temporary order to assign custody rights to his or family members while he or she is overseas. This also means that when a service member is deployed, a judge cannot then change the custody arrangement for the child unless it finds it is in the best interest of the child to do so.
Importantly, it also allows the the family members of the deployed soldiar to step into the shoes of the serviceman or woman to exercise the same custody rights that their service member, while he or she is away, which provides a shortcut to allow involvement of extended family.
The law also eases the burden of soliders overseas in terms of attending court and conferneces. The new law specifically allows parents serving in the military overseas to testify in court via phone, videoconference or other electronic means if they can’t appear personally in court. This law is designed to recognize the sacrafice of service persons deployed to serve their country.
This is a positive development overall for the interplay between state courts and our troops who are obeying natoinal duties. Kudos to State Senator Lisa Baker and all those who supported this law.
There is no easy way to identify and eliminate child abuse, unless the abusive parent comes 100% clean and decides to trust outsiders with knowledge of what’s been happening in the home.
The broader question is: what should happen when there are mere allegations that a child has been neglected, abused, or exposed to an environment where drugs or alcohol are present? The knee-jerk answer is simple: get the district attorney involved, punish the parent(s) and relocate the kids. But the solution is not so simple. Many parents who deeply love their children also struggle with addiction.
In most instances, a parent may need counseling of some sort in lieu of the state bursting through their front door and stripping them of their children. Some cases are easier to decide than others. The parent whose daily intoxication allows young children to wander the streets requires special attention, of course. But in many other less obvious cases of neglect, it may not be realistic to completely demonize a parent at the mere suggestion of drug use or neglect.
Pennsylvania has relied heavily on county entities called CYS, which stands for Children and Youth Services. (In Allegheny County, it’s called Children and Youth Families, or CYF.) The job of CYS is not easy. CYS needs to investigate to get facts from parents who are understandably reluctant to be forthright. Hence, CYS needs to draw certain inference from little facts, in many instances. A recent story in the news highlights the difficulties in this area.
The case involved a new mother in New Castle, Pennsylvania, who failed a drug test given at a Lawrence County Hospital. This prompted authorities in Lawrence County to seize her newborn baby, and the mother intends to file a civil rights law suit. But the mother has an interesting explanation for her failure of the test.
Rich Lord, of the Pittsburgh Post-Gazette, reported:
“Elizabeth Mort and Alex Rodriguez, parents of Isabella Rodriguez, have said that poppy seeds on a Dunkin Donuts everything bagel caused a false positive on an April drug test conducted by Jameson Hospital in New Castle. Poppy seeds contain opiates that are sometimes mistaken for drugs, although there are blood tests that can discern between compounds in the seeds and illegal substances.
The test result prompted Lawrence County Children and Youth Services to remove Isabella from her home the day after her discharge from the hospital, and put her in protective custody for five days.
The ACLU and attorney Patricia Dodge, of Meyer, Unkovic & Scott, plan to represent Ms. Mort in suing both the county and the hospital, according to a news release by the ACLU. Her attorneys declined to be interviewed, but a copy of the complaint to be filed today indicated that they will seek a finding that authorities need more evidence than a single drug test to remove an infant from its parents.
The complaint says the county agency is “removing newborns without any reasonable suspicion that they have been abused or are in imminent danger of abuse, in violation of parents’ fundamental constitutional rights, and Jameson is aiding and abetting that constitutional violation” by conducting tests that aren’t medically necessary.
Lawrence County Commission Chairman Steve Craig said that Children and Youth Services acted properly based on the information provided by the hospital.
“When [hospital employees] say she failed a drug test, what do you do, say, ‘Oh, well, we understand she ate a bagel?’ ” said Mr. Craig. He added that Ms. Mort told county case workers that she had a history of drug use, and called the claim that a bagel was to blame “an allegation. There’s nothing to back that up in this case.”
The complaint says Ms. Mort did not use illegal drugs while pregnant. She has no criminal record in Pennsylvania.”
To read more, go to: http://www.post-gazette.com/pg/10301/1098650-54.stm
Let’s assume that CYS got it wrong in this instance; namely, the mother had no prior record and there was no other evidence of neglect or drug use on her part in the past. Does this mean CYS should relax its vigilance any?
The truth is, there is no quick and easy solution to the problem of suspected abuse. Modern society does not have any easy answer. At the gut-wrenching suggestion of abuse, it’s tempting to cast a wide net and simply demonize every person and entity involved: the parents, school, teaches, and entities such as CYS that often fail to properly investigate the “real” instances of neglect.
Three things will never change: (1) abusive parents will never be totally forthright about the harm they are doing to young children (2) CYS will overstep its bounds in the future and cause pain to innocent families, and (3) we will always need investigative bodies like CYS to have authority to make decisions that help improve the lives of innocent children.
The system will never be perfect. But an alert public, good reporting, and a constant effort by CYS to improve its procedures will help reduce the number of cases where CYS over steps it bounds in the future.
Our Allegheny County based law firm has known for quite some time that the courts impose severe penalties for non-payment of a child support or spousal support obligation. The courts in Western Pennsylvania routinely impose a host of sanctions against delinquent payors, which included garnishment of wages, restriction of driving privileges, and incarceration.
The system works as intended: it scares alleged “deadbeat” payors into making payments. While the fear factor still exists, courts in Western Pennsylvania are taking a more realistic approach when it comes to payors who fail to make payments because of the recent loss of employment. The courts are encouraging vocational training and guidance, while holding firmly in place the real threat of incarceration for delinquent payment of a support obligation.
When Brian Scott first appeared before Allegheny County Common Pleas Court’s Family Division at age 17, he was given two options: Make child support payments or go to jail.
“I was furious,” said the Hill District man, now age 24. “I didn’t know anything about child support.”
After spending a few days in jail, he began to make payments, but now he’s unemployed and can’t pay support for his three children; ages 8, 7 and 4. This time, rather than issuing a jail sentence, the court referred him to job training.
Allegheny County’s rate of collecting current child support payments has ranked first for the past three years in a comparison of about 20 similarly sized urban areas by Policy Studies, a Colorado consulting firm specializing in child support matters. The court’s Family Division collected 80 percent of on-time payments in the 2009 fiscal year, running from October 2008 to September 2009, up from 75 percent in fiscal 2007.
Judges and other officials credit efforts in recent years to set more realistic payments for parents and to refer those who need help to job training and other support programs.
“If you don’t have a game plan, they’re going to give you a hard time,” said Scott, who expects to begin making payments again soon. “If you’re willing to work, they’ll work with you.”
Allegheny County court handles 46,500 cases. Seattle, with nearly the same caseload as Allegheny County, collects 66 percent of on-time payments, according to the Policy Studies rankings. Prince Georges County, Md., also with roughly the same caseload, has a 68 percent collection rate.
“We probably, anecdotally, think we’re the best in the nation,” said Patrick Quinn, administrator of the Family Division’s adult section.
Locally, Butler County brought in 87.2 percent of payments last year and handles 4,135 cases; Westmoreland County’s rate is 84.7 percent, and its caseload is 10,585. Collections can be tougher in urban jurisdictions, though, because more parents are unemployed or unmarried, said Brian Laatsch, a senior consultant at Policy Studies. Urban jurisdictions are defined in the Policy Studies report as those with 30,000 or more cases.
During fiscal 2009, the Allegheny County Family Division collected $130.8 million in current child support payments. The $25.7 million collected in past-due payments that year put the county second in the most recent Policy Studies rankings for past-due collections.
“The court has recently been more interested in setting an order that is realistic to pay,” said Judge Kathleen Mulligan of the Family Division. “By the same token, we’re going to be stricter enforcing that.”
The division’s enforcement team tries to get parents into jobs or place them in career-training programs with the goal of getting them to pay child support. When the enforcement team and domestic relations officers are not able to get payments, the case goes before a judge.
“The majority of cases never make it to a judge because our staff teams are set up to find a plan that works,” said Judge David Wecht, administrative judge of the Family Division. “In a way, when it goes to a judge, there’s been a failure.”
Nonpayment can result in jail time, the loss of a driver’s license or hunting and fishing licenses, passport denials, tax refund interceptions, liens on property, interceptions of federal payments like Social Security and student loans. Last year, 345 people went to jail in Allegheny County for failing to pay child support; so far this year, the number is 227.
Parents in a financial bind are encouraged to file for modifications rather than miss making payments altogether.
Monthly support payments are based on both parents’ incomes and state guidelines. Last year, the average annual amount collected for each case was $3,839, up from $3,447 in 2008.
Allegheny County’s Family Division now works with agencies that sponsor programs for noncustodial fathers to help them find jobs and stay out of the “underground” economy, where pay goes unreported.
“We were never in the job business before and now we are, extensively,” Quinn said.
“Work is the key. There’s no point sitting in jail because you can’t pay your support.”
The Father’s Program at the Hill House Association in the Hill District accepts referrals from the Family Division, and helps young, mostly noncustodial fathers such as Scott prepare for and secure jobs.
“In all honesty, a lot of the guys have a fear of the system,” said Mike Rogers, the program’s co-coordinator, adding the court sets realistic payments for the most part. “It’s justified terror, I guess. They really lock people up at the drop of a dime down there.”
Mulligan said, “I like to think the word on the street is you can’t get away with not paying your child support.”