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Archive for the ‘Divorce’ Category

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.
A PFA also creates a mark on a person’s permanent and public record.  Although a PFA does not create a criminal record per se (unless one violates the PFA and is found guilty of indirect criminal contempt), a PFA does appear on the civil docket as a finding of abuse, which the world can see, because the civil docket is public record.

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.

412.780.0008

Email Us! 

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It looks like things are getting worse for Charlie Sheen.  It appears that he has a court date coming up in February, but according to reports,  Hanes has already dropped him from its advertising.   It may be some time before the courts take a serious look at whether there is any truth to the recent allegations about Charlie Sheen.   

In the short run, any allegation of abuse will (and should) be taken seriously. When a party to a relationship claims abuse, the courts are quick to grant a Protection From Abuse Act order if only to keep the parties separated.  The courts often seem to say:  “Hey, who cares who did what?  I just don’t want to see any kind of abuse happen in the future on my watch, you hear me?  I’m ordering that the alleged aggressor stay away.” 

You really can’t blame the court for taking this approach.  If you were wearing the judicial robe, you would probably do the same thing.  Imagine if you were to deny a Petition for Protection From Abuse (PFA), only to learn that the alleged abuser seriously hurt (or killed) the petitioner only hours after exiting  your courtroom.  Hence, when in doubt, it often makes the most sence for a judge to err on the side of granting Petitions for Protection From Abuse when the facts are unclear. 

But what about cases involving criminal charges above and beyond a PFA?  There, it’s a whole different situation.  When charged with a crime, as a matter of constitutional right, we are innocent until proven guilty beyond a reasonable doubt.  Here, the courts are not allowed to rush to judgment.   The defendant will get the right to a jury trial and he’s entitled to have his day in court.  He has a 6th Amendment Right to confront witnesses offered against him.  He can challenge whether the allegations of abuse are support by proof of touching (bruises, cut, broken bones), and whether any witness would support the accusers version of the facts. 

In the meantime, however, it is generally best for the parties to agree to avoid contact for at least as much time as needed for a cooling or more permanent separation.  Charlie Sheen should listen closely to his advice of legal counsel on this, because every case is different.  Settlement agreements can come to haunt the parties, so the wording matters.  Plus, unfortunately, the system can be abused by those falsely claiming abuse to gain leverage in a divorce, custody, dispute or to evict someone from a shared premises.   Every case must be looked at on its facts to ensure that (1) courts are being fair to all parties and (2) right solution is found.  

What makes these cases particularly difficult is when the parties are public figures and the allegations of abuse become the subject of headlines.  Typically, the final agreement between the parties will often involve a non-disclosure clause and the public may never know the truth.  This is also true if the parties reconcile, so the public might only see the allegations, absent any evidence of serious injury.

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The Western Pennsylvania lawyers at Elliott & Davis, PC understand the impact that any family law matter can  have on your life.  We are intimately familiar with events such as divorce, custody disputes, and support claims and other family law matters.  We all know that a divorce is a life changing experience.  However, some practical advice can make the transition a little easier.   The blogosphere has advice for you!

Here’s ten tips that I found on the LegalMatch blog.  Parenthetically, LegalMatch picked up these tips from the Kentucky Family Law Blog, which received the tips from  Nolo Press. These tips were originally authored by Emily Doskow

1. Be Flexible

Where your children are concerned, the best present you can give your child is to head off conflict about special days like birthdays and holidays. The collaborative rule for you in this situation is adjust your agreements to fit your kid’s needs.

For example, if the kids express a strong desire to spend a holidays or birthday with your ex, understand the importance of allowing them to do just that, regardless of whose time it is “officially.”

2. Be Proactive and Plan Ahead

Always keep in mind that your new family arrangements require much more planning than when everyone was living under the same roof. One way to avoid disappointment is to communicate early and often with the children and your ex. Give your children’s mom plenty of time to think about your proposals and to respond. And keep in mind that pushiness usually produces more resistance than cooperation.

3. Be Kind and Generous

Especially during holidays, keep any bitterness you still feel over the divorce between you and your ex. If you can’t say anything nice, just smile. Avoid putting the children in the awkward position of taking sides. Be as generous as you can with your kids about their relationships with their ex and the rest of the family. Encourage them to talk about the gifts they received and activities they engaged in with other family members they see over the holidays. Let them know they can show happiness with both parents. Help your children shop for the other parent, as well as their sibling, grandparent, or stepparent.

4. Keep Your Word

Be particularly careful to follow through on whatever promises you make related to the holidays. It’s extra important to keep promises to your kids around holiday times — the holidays are a big deal for kids.

5. Include the Kids In Your Planning

Whenever it’s reasonable, let your children help make the choices about when and where to celebrate the holidays, and with whom. But before asking their opinions, make it clear that all plans must be cleared with everybody involved. This will help teach your kids to be part of the collaboration between you and your ex.

6. Create Two Holidays or Birthdays

Having two holiday or birthday celebrations for the children — one at your house, one at Mom’s — is often a positive solution for extended families. Just make sure that the plans you make are collaborative and that they are made well in advance. This arrangement reinforces for the kids that they have two homes and cements new family rituals and holiday customs.

7. Avoid the Indulgence Trap

Many divorced parents, especially dads, are still reeling from their personal hurt and guilt over the divorce. They may be overwhelmed by these feelings and respond to the children’s pain with too much money or too many gifts. Try to stay away from this unhealthy dynamic with your kids.

8. Take Care of Yourself If You’re Alone

Holiday time can trigger a resurgence of memories and melancholy feelings, especially if you are surrounded by couples and families. As holidays or birthdays approach, if you know you’re not going to get to see your kids, be sure to make your own special plans for the day.

9. Build New Family Traditions

Divorced parents, especially dads, often make the mistake of trying to duplicate exactly the pre-divorce family traditions. But you’ll be much happier and more satisfied if you create your own traditions for your new family.

10. Nurture Your Blended Family at the Holidays

If you remarry or get into a committed relationship and your new partner has children, they will undoubtedly have their own ideas about how to celebrate holidays and birthdays. Discuss with your new partner ways that you can bring together the children from both sides of the family, and get all the kids involved with planning what you’ll do together and incorporating everyone’s traditions.

Birthdays and holidays are special times for you and your kids. Communicate clearly and stay calm and flexible, and your extended family will have something to celebrate.

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As CNN and others have reported, the marriage between Joh and Kate Gosselin has terminated in divorce, but does that mean the saga is over? Apparently, they have an agreement on custody.  They will have shared physical custody.  Kate will have primary at the marital residence and Jon will see the children on some sort of schedule. 

In Pennsylvania, a claim for custody involves a series of steps that can involve a mediation, followed by a conference, followed by an actual custody trial.  There is no right to trial by jury in Pennsylvania, constitutionally.  Hence, Pennsylvania the legislature can require that certain kinds of cases are always heard non-jury (by a judge), which is precisely the case in matters involving divorce, equitable distribution, custody, and support in Pennsylvania. 

Plus, custody orders are always modifiable, depending upon the best interest of the children.  Does this mean that Jon and Kate should be in court every few months to craft and re-craft their custody agreement to accommodate their changing lifestyles? 

Absolutely not. 

In every case, our firm recommends that the parties avoid court whenever possible, especially in the area of custody.  In order for parents to raise their children in a healthy environment, the parents need to learn to agree to a plan of cooperative management for their children.   This is especially true when parents are separated or divorced.  The courts are not supposed to be a third-party co-manager in daily disputes.  In fact, a judge will be quick to express his or her frustration with your case if it appears that you are seeking judicial intervention before genuinely trying to work out your issue. 

This does not mean you should never utilize the courts to sort out a significant dispute.  Even parties who negotiate a well written custody agreement may later come to find that their lives have changed beyond their control, which may require court intervention or a new agreement.  For example, one party may lose is job through no fault of his own and find that his best opportunity for new employment exists 1500 miles away from the children.  Obviously, this could dramatically impair that parent’s ability to follow a pre-existing agreement.  In this scenario and many others like it, the courthouse doors will remain open to conduct a relocation hearing, to evaluate how custody rights must change.   

There are a variety of other issues that call for judicial intervention, notwithstanding the existence of a well-drafted custody agreement.  For example, consider the issue of legal custody.  Unlike physical custody which involves the number of overnights each parent has with children, legal custody deals with each parents’ respective right to have a say in how the child is raised:  health care, education, religion, and other issues involve a choice by parents.  Here, even with an iron-clad custody agreement about custody, over time, there may be new issues that surface in the child’s life which require mutual input from each parent.  Even happy couples can disagree on these matters.   

So what does all this mean for Jon and Kate?

It means they have a long future ahead of them if they fail to communicate effectively.  The number of children they have, coupled with the public way in which they live their lives, will multiple the range of custody issues they face by eight fold.  For example, the direction of Jon’s career remains uncertain.  He was recently ordered to avoid making public appearances for money because, allegedly, it violates his contract with A&E.  Hence, perhaps even Jon does not know where he’ll be living or working in the future.  As for Kate, it is rumored that she will do her own reality show for A&E (without the kids).  It remains to be seen who will be spending time with these kids, which could impact custody issues.  Plus, the sheer number of kids will trigger issues about how best to care for them.  Again, the parents will need to agree…or go to court. 

For Jon and Kate, the problems have already begun to surface.

It has been reported that Jon objected to Kate doing the future show titled “Kate Plus Eight”  involving Kate and the children (without Jon).  Upon receiving this objection, A&E believed it was left with no choice but to honor Jon’s objection because he has parental rights.  A&E believes that the consent of both parents is needed for A&E to move forward with filming these children in the future.  So, already, we’re seeing a relationship between custodial rights and the respective careers of Jon, Kate, and the real stars of their monstrosity of a TV show:  the “Plus Eight.”  Allegedly, the custody agreement signed between Jon and Kate allows the parent with primary physical custody (Kate) to make decisions about the childrens’ involvement in taping episodes of the show.

Still, assuming that clause exists, it will not trump the “best interest of the children” standard.  Remember, custody agreements are always modifiable.  If one of the children so much as whispers that the show is interfering with his eduction, the show is gone - clause or no clause.  Hopefully, Jon and Kate will re-take control of their lives and come to stand for something other than making money from having outsiders film their childrens’ most precious moments.  Imagine the children growing up, going on dates, and coming to learn that their most personal private moments growing up are located on DVD collection of countless strangers from coast to coast.     

This saga could stop short of a total train wreck, but it will take some dramatic changes on the part of the parents.  First of all, the parents will need to start putting aside some money for the children (if they haven’t already) if it is true that the children have “worked” on the show for now compensation set aside specifically for them.  Plus, the parents will need to select careers that allow them to be parents first.  In short, the parents must learn to put the children first to the point where they become an example of how to make good decisions in the face of great difficulty. 

Unfortunately, for the public, if Jon and Kate make the changes that need to be made, the public may lose interest in them.  So far, the story line has been about seeing kids on TV or reading about the parents’ difficulties in the tabloids. If the children live private lives and the parents focus on just being parents, then the plot line might fizzle out.  So, ironically, if Jon and Kate finally do what they need to do, it may be too late for anyone to learn anything from it.  But at least the children have a chance to learn, and the parents will ultimately spend less time in court.

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This is a question that divorce attorneys rarely get to ask their clients.  In divorce cases, the usual questions we have are:  Where do you reside (for purposes of jurisdiction)? When were you married? How many assets did you accumulate together?   

But rarely do we ask:  what were you thinking.  Admittedly, the answer is not all that important for purposes of representation.  Such information is generally not relevant in divorce proceedings.  Plus, it is not professional (or even necessary) for a lawyer to judge his client’s thinking or conduct.  We all make mistakes and a lawyer owes a fiduciary duty to his client. 

But on this blog, at least, I can ask Tiger Woods:  what in the name of Lady Justice were you thinking when you cheated with a parade of not-so-trustworthy women?  How could you have led those women to think that they (each of them) had a future with you?  Seriously, were you hoping to clone yourself at some point?     

As a disclaimer, we cannot verify the truth of any of the allegations about Tiger Woods right now.  We can only say what is being reported about him as a public figure.   He is innocent until proven otherwise  (or until an incriminating voice mail message sounding exactly like his gets played and replayed by every media outlet from the local news to Bill O’Reilly).  The infamous voice mail, as first reported in US Magazine and blogged about in the Huffington Post complete with audio, goes something like this:

Hey, it’s Tiger. I need you to do me a huge favor. Can you please take your name off your phone? My wife went through my phone and may be calling you. So if you can, please take your name off that. Just have it as a number on the voicemail, just have it as your telephone number. You got to do this for me. Huge. Quickly. Bye.

Seriously, Tiger, what were you thinking?  We may never know, unfortunately.  His counsel may never get to ask either, assuming Tiger Woods has retained counsel to evaluate issues such as divorce, custody, and support.     

A more broad question for ourselves (as we follow this story) is:  why is this particular story so compelling?  For this writer, the compelling nature of Tiger Woods’ current saga has nothing to do with his money, his fame, or the “fallen hero” sub-plot we keep hearing.  Those are just topics to fill news columns while the story remains red-hot on the forefront of peoples’ minds. 

The real issue is control…or lack of it.     

How could someone so rich, famous, and disciplined in the precision sport of golf lose control over not only his marriage, but also the nature in which the public learns of his ongoing pattern of antics?  Did he really think that his true lifestyle would remain a secret indefinitely?  How could someone so hard working and dedicated to his craft let his life spin out of control so quickly? 

He desperately needed (and still needs) to take control of this story about himself, if only to deflate the suspense that continues to build.   From the beginning, all he had to do was give the media something — some fact or revelation.   But he lost the opportunity to score a few points because he stonewalled.  In fact, he never did come clean.  He merely admitted to vague indiscretions after the above voice mail surfaced.  

And the public remains in suspense about how far Tiger Woods will fall.  Will he come to terms with his new public image?  Contrast Tiger Woods’ bungling in this case versuse the stark admissions by Hugh Grant (on the Tonight Show) and David Letterman (on his own program).  These days, Hugh Grant has a new movie coming out.  David Letterman is winning the late night battle for ratings.

Tiger Woods, on the other hand, has exited the sport of golf…by choice.  Granted, Tiger Woods still has time.  But he keeps making things worse.  His decision to leave the golfing world only raises a new questions:   when will he return?  Once he returns, will he play at the same level he once did?  The above questions could have been avoided if Tiger Woods had just committed himself to doing what he does best:  being great on the golf course.   

On second thought, maybe this writer has it all wrong.  Maybe Tiger Woods is, and always was, in control.  Perhaps he wanted the story to come out the way it did.  This could be no different than Tom Cruise’s couch jumping antics on the Oprah Winfrey Show.  Maybe Tiger Woods is really saying:   

“Leave me alone.  Can’t I just be myself?  I was scared to tell you that I’m not perfect.   You’re a fool for thinking I was perfect, anyway.  You watched me play golf and give a few short interviews after each game.   You saw me on TV.  Big deal.  Somehow it was enough for you to buy more than your usual share of products by Gillette and Nike, merely by seeing my face in the ads.  Maybe you’re the one who should ask yourself: 

What were you thinking?

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