Protection from abuse orders frequently have become the weapon of choice in domestic situations where a family member, typically a spouse, is seeking to leave the relationship and wishes to strengthen his or her case as it proceeds through the court system. This has become an unfortunate reality, but a reality nonetheless.

The Protection From Abuse Act provides protection for family and household members, as well as sexual or intimate partners who are the victims of abuse. Although it is most often utilized between husbands and wives, it is also routinely used by boyfriends and girlfriends, or individuals who share a child. It can even be used by siblings living under the same roof. A PFA, as it is known, is available to those who allege they have been physically abused, have been placed in fear of imminent serious bodily injury, have been stalked to the point of being in fear of bodily injury or have been falsely imprisoned. If granted by a court, a protection from abuse order carries with it serious and powerful avenues of relief for the person alleging abuse.

Once a PFA order is granted, a court has the power to do any or all of the following: evict a party from the home; prevent that party from entering a home, school, place of employment or business; award temporary custody of a child; and/or direct a party to pay support for that party or a minor child if there already exists a legal obligation to do so, such as a support order. Moreover, such relief may be granted for a maximum of three years. While this relief might seem, and quite frankly, is, appropriate for a person who has been the victim of abuse, the system has the potential for significant manipulation.

While some of the mechanics of obtaining a PFA vary from county to county, there generally are two ways of initially obtaining a PFA. Outside of normal business hours or on weekends, a person can get an Emergency PFA, which is valid only until the end of the next business day. This is most often done at a local District Court, and may be done in any county in the Commonwealth. Otherwise, during normal business hours, a person can go to a Court of Common Pleas and file for a Temporary PFA, which differs from an Emergency PFA in that the request must be made before a higher level judge. If granted, a Temporary PFA lasts longer than an Emergency PFA. The unique thing about both Emergency and Temporary PFAs is that each is presented ex parte, which means that the person who will be most affected by the PFA, the alleged abuser, is not present to provide a defense to the allegations, and most often does not find out about the PFA until it is served upon him or her by a County Sheriff. Typically, the ex parte procedure presents victims of abuse an opportunity to get much-needed relief quickly, without having to wade through the normal delays of the court system. However, in a judicial system that is premised on one’s right to be heard and defend himself or herself, this one-sided process is unusual, and its effect is often unfair.

A common example illustrates how the system can often be manipulated.

A husband and wife, who have one child together, are living in separate residences and are going through a divorce. Custody of their child was hotly contested but ultimately decided by a judge. One day, one of the parties seeks an Emergency or Temporary PFA, alleging that the other party threatened to harm the parties’ child. If that party can convince a judge that he or she is telling the truth, the judge will award a PFA which will dramatically impact the rights of the parties, and may result in an award of full custody to the party seeking the PFA. This PFA will last until the parties can get to court where both parties can be present, as can their lawyers, to see if another judge will grant a permanent PFA. For numerous reasons, that permanent hearing will often take place weeks, if not months, later. It often is extremely difficult for an initial judge to hear only one side of a presentation from an apparently sympathetic individual claiming abuse, and to deny him or her an Emergency or Temporary PFA.

A violation of a PFA is a separate criminal offense, punishable by up to 6 months in prison. More importantly, the alleged violation does not need to be witnessed by the police. A mere showing of probable cause will result in the immediate arrest of the violator, and probable cause often turns on nothing more than a finding of credibility. In the above example, after the issuance of the PFA, if one of the parties was to call the police (without the other’s knowledge) and allege that he or she saw the other party drive near the family’s home where the one party and the child reside, this most likely would be a violation of the PFA. The police need not have any independent evidence that this act occurred. Nonetheless, if they are met by a believable complaining party, and are convinced that the individual was telling the truth the police are required to immediately find and arrest the other party without affording the party the opportunity to defend himself or herself. Bail would be set for that party and that party would be facing a new criminal charge.

In both examples, the accused party ultimately will have a chance to present a defense with or without an attorney — but not until the hearing on the permanent PFA. Nonetheless, until that point, that party’s ability to reside in their home, or see their child, or go to their child’s school events or sporting events will have been negatively impacted merely on nothing more than the word of a person with whom they are engaged in a contentious divorce and custody battle.

The Protection From Abuse Act provides helpful and necessary remedies for victims of abuse. It also provides opportunity for those who seek to manipulate the Act to their own advantage. Under the Act’s current format, diligent jurists must provide a first level entry point into the system that adequately protects all parties involved.

If you have any questions regarding Protection From Abuse (PFA) Orders, Lamb McErlane PC can help. Contact Dan Bush.

Dan Bush is a criminal defense attorney at Lamb McErlane PC. Dan has over twenty years of experience prosecuting and defending individuals charged with a crime. He chairs Lamb McErlane’s criminal litigation department and is a partner in the firm. dbush@lambmcerlane.com. 610-701-3266.