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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 on April 24, 2012 | 2 Comments »
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.
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!
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.
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?
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.
Welcome to Pittsburgh Divorce Law Blog! We hope that you find this to be an engaging and informative platform for news, information, and dialogue relating to Western PA Divorce Law, Custody Law, and Support Law.
This blog is a service of Elliott & Davis, PC. Elliott & Davis is a full service law firm with a practice devoted to matrimonial law issues, as well as corporate law, general litigation, and trademark law. We will try to keep this blog light and lively although the subject matter of family law is often challenging for the litigants.
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