Do you want your spouse or significant other evicted from your house? Do you want to limit a parent’s custodial rights? Don’t want to wait for a divorce or custody proceeding? File a Protection From Abuse Petition and it will often be granted the same day. The PFA statute as written, facilitates a system which is ripe for abuse by individuals who are not actually being abused but who want to “get back at” their former spouses or significant others, or take advantage of weakness in the civil law process. Perhaps if individuals start to fight the PFA system, legislators and the courts will realize that the burden of proof is too low and allows for an abuse of our legal system. Rather than consent to a PFA, fight it and tell the Court your side of the story.
The Protection From Abuse Act, found in Title 23, Section 6101 et. seq. was enacted to protect individuals from abuse from a family or household member, a sexual or intimate partner or a person who shares a biological parenthood. Abuse is broadly defined as
“(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.A. § 2903; (4) Physically or sexually abusing minor children, including such terms as defined in Chapter 63; and (5) knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under the circumstances which place the person in reasonable fear of bodily injury.” 23 Pa.C.S.A. §6102.
The abused individual begins the PFA process by filing a petition with the Court of Common Pleas. In this petition, the plaintiff – the person claiming abuse – sets forth statements of facts alleging an abuse as defined in the statute. This can include both present and past allegations of abuse and may include the threat of abuse under certain limited conditions. Within ten (10) business days from the date the petition was filed, a hearing must be held in which the plaintiff must prove his/her case and the defendant must be given an opportunity to defend against the allegations.
The problem with the way the law is currently written is that a plaintiff need only prove her/his case by a preponderance of the evidence. This is an extremely low burden to satisfy and simply means that when looking at all the evidence, the plaintiff’s case is more likely to be true or there is a more than 50% chance it is true. This low burden is troubling when you consider the rights that are at stake in a PFA proceeding. You can lose property rights, such as the right to reside in your own home. You can lose constitutionally protected rights, such as the right to bear arms. Your parental custodial rights can be severely limited or terminated altogether. If a PFA is granted, and you violate the PFA, you can be subject to criminal penalties such as incarceration. You may also be subject to civil consequences for contempt of a court order. This could ultimately affect child custody under Title 23, Section 5329 which allows a court in a custody matter to consider whether an individual poses a risk of harm to his/her child when that individual has been found in contempt of a court order.
Even more problematic than the fact that the burden of proof is so low is the fact that a temporary PFA will be entered based on the facts alleged in the petition alone, without any communication with the defendant. The court will assume that all the facts alleged in the petition are true and enter a temporary order if the individual is in immediate danger and if the facts amount to abuse as defined in the statute. While the temporary order is in place, an individual may be excluded from his/her home, prohibited from having contact with his/her children, and ordered to relinquish firearms, pending a hearing on the matter.
Many people go to PFA hearings without the benefit of an attorney and enter a consent PFA in which he/she agrees to have no contact or only limited contact with the plaintiff for a set period of time, usually between one and three years. Although this is not an admission to the facts contested, a PFA based on consent can be easily abused, and the consequences to a defendant are criminal. For example, if a plaintiff complains to the police that a defendant is violating the PFA, the defendant can be arrested and incarcerated pending a hearing on the alleged violation. The PFA violation, now called an indirect criminal contempt, is handled by a District Attorney, and the burden is raised to beyond a reasonable doubt. However, there is no right to a trial by jury and in many counties, the case is heard by the same judge who handled the initial PFA matter.
Because the burden of proof is so low, and the consequences of a PFA are so serious, it is imperative that a defendant in a PFA matter find an attorney who is prepared to fight and who is familiar with the law as well as the county and the court where the action is pending.