A restraining order – or temporary PFA (short for Protection From Abuse Act Order) — should get your attention, because of the wide-ranging consequence of a “PFA.” Our Pittsburgh lawyer firm frequently defend PFA actions throughout Western Pennsylvania, including Pittsburgh, Allegheny, Beaver, Butler, Westmoreland, and Washington Counties. Our lawyers took the liberty of putting together a guide or list of seven “rules” to understand when defending a PFA.
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Rule #1: Take the PFA Hearing Seriously.
Our Pittsburgh law firm gets at least one call a week from someone who blew off a PFA hearing or attended by himself (or herself), without counsel, and now wants a “do over,” after he realizes the consequences of a “permanent” PFA, described below. Judge’s don’t grant “do overs,” and the appeal process, as described below, is very expensive and not likely to be successful, in most instances.
This, the hearing on the “permanent” PFA is extremely important. You will get advanced notice of it. That is to say, if you have been served with a temporary PFA, you will receive notice of the exact date and time of the hearing to determine whether the PFA will become “permanent” (a three year PFA). The purpose of the hearing is to review evidence to determine as a matter of fact and law whether you are a stalker, or abuser, or otherwise a threat to the safety of a family member or current/former lover. Once that determination is made, it can haunt you for the rest of your life.
Judges tend to err on the side of granting a PFA. Click here for an article describing why judges err on the side of granting a questionable PFA despite the serious consequence for a defendant. These consequences include: first, the fact of a permanent of record that you, the Defendant are an “abuser,” which can be used against you in subsequent domestic relations proceedings.
Secondly, early on, start thinking about getting the temporary PFA off your record. The temporary PFA is based on only one side’s assertions, therefore it can be expunged — or removed from the public docket — if it is later dropped or determined to be invalid; however, once you are adjudicated an “abuser” at your hearing, the fact of the PFA petition against you cannot be expunged, ever. Third, a permanent PFA can have wide ranging other effects, including a prohibition on the right to own or have access to guns (even muzzle loaders purely for hunting and even bar you from living in government housing. Fourth, a PFA can be used to keep you evicted from your home, or have access to your children.
Rule #2: Retain Experienced Counsel ASAP.
Any lawyer will tell you to hire a lawyer, right? But consider the facts. You only get one hearing to determine whether the PFA will become “final.” There, it may cost you $1,000 or more in legal fees to defend the PFA. But consider the costs of not having counsel: if you attend the PFA hearing “pro se” (without counsel) and lose, you can appeal, but the “cost of poker” escalates dramatically: the appeals process is very expensive (lawyers charge between $4,000 to $6,000 minimum to brief and argue an appeal before the superior court). Plus, you cannot win your appeal unless the judge made some error of law, but if you don’t have counsel present to preserve the objections to what happened before the judge deciding the PFA, you may lose the right to appeal, altogether. The Superior Court may find that you waived the issue.
Rule #3: Know Your Settlement Options.
You may want to fight the PFA, but there are no guarantees in court. Experienced counsel can tell you both (1) our odds of winning in court and beating the PFA outright and (2) the settlement options that may be available. We rarely tell PFA defendants to agree to a PFA unless the facts are so extreme that no defense could exist. Rather, we focus on other options short of our client becoming adjudicated an “abuser.” Call for more details.
Rule #4: Once You Decide to Fight, Be Ready For the Fight.
You and your lawyers need to develop evidence, if you plan to fight the PFA. Defending a PFA can be tricky, because it’s not like a criminal charge or even a civil suit for money, where the courts schedule a formal time period for the parties to exchange information. Even though a PFA can have wide ranging implications for the Defendant, the courts rarely if ever allow the deposition of witnesses or the formal exchange of information prior to the PFA hearing. This is because judges see the purpose of the PFA as something to “only” separate parties to prevent violence. So if you are going to retain a lawyer to fight the PFA, you will need to do investigation outside of the courts to gather admissible information to create the best chance of defeating the PFA.
Rule #5: Do Not Contact the Petitioner.
You may be tempted to call the PFA petitioner to try to “work this out.” Or, the petitioner may call you, and thus, you may think it’s OK to talk to him or her. Bad idea. The temporary PFA restrains the Defendant’s conduct, not the conduct of the petitioner seeking the PFA. Hence, the Defendant served with a PFA violates it by talking to the petitioner, but the petitioner is free to contact the Defendant. Don’t fall into the trap. Avoid any contact. Don’t respond to texts, calls, or emails. Don’t stop and chat. Don’t go over to the petitioner’s house if he or she invites you over. Don’t even post something about the petitioner on social media. You can go to jail for violating the PFA.
Rule #6: Focus on Beating the PFA Above All.
You may believe the temporary PFA is “total BS,” and you may be correct. But for now, focus on defeating the PFA before thinking about how to sue the petitioner for filing a frivolous PFA. Until the court determines that the temporary PFA should be vacated, it’s a “he-said,” “she-said.” So get the temporary PFA vacated before focusing on making a claim on the opposing party for violating your rights. Focus on defending the PFA successfully, above all. Plus, winning in court is the best revenge. Beat the restraining order. Then think about whether a case can be built against the opposing party for violating for filing a frivolous PFA. The Protection From Abuse Act expressly provides a remedy against a party who files a frivolous PFA. But again, focus on defeating the PFA above all. Many questionable PFAs have been granted, while the Defendant was busy thinking offense, when he should have been thinking defense.
Rule #7: Don’t Delay.
You may only get 3 weeks (or so) notice of the hearing to determine whether the PFA should become “permanent.” Call a lawyer right away. A lawyer’s schedule is usually booked solid for 3 to 6 weeks into the future. Your lawyer may need time to rearrange his or her schedule to defend you at your PFA. Waiting until a day or two before your PFA frustrates your prospective lawyer’s ability to defend you. Granted, if you retain counsel, the courts will likely continue or re-schedule the PFA to a later date, to accommodate your attorney’s schedule, but in the interim, the temporary PFA will remain in full force and effect.
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