Posted in: Spousal Abuse
When a person is a victim of domestic violence, including acts of physical abuse, stalking or verbal threats, at the hands of a spouse or domestic partner, that victim may obtain a temporary restraining order against the abuser through the Protection from Abuse Act. The purpose of a restraining order under the Protection from Abuse Act is to protect victims of domestic abuse by preventing a spouse or partner (as well as family members and others residing in a victim’s home) from committing acts of abuse against a victim under the penalty of contempt.
When a person has been the victim of domestic violence or has a reasonable belief that a spouse or partner will cause physical harm to a victim, a Protection from Abuse order should be obtained, as it provides additional legal protection for a victim and his or her children.
To acquire a Protection from Abuse order, a victim may file a petition before a local Court of Common Pleas. In that petition, the alleged victim must detail information concerning the acts of abuse committed by a partner or spouse, including the most recent incident. Because, at this stage, there is no opportunity for a spouse or partner accused of abuse to rebut any of the allegations of abuse, this proceeding can, and has, led to a different form of abuse—an abuse of the judicial process.
The accuser will then be brought before a judge who will review the petition and ask questions of the accuser while the victim is under oath. This process before a judge occurs without the presence of the accused spouse or partner (“ex parte”) and can severely impact the custody and visitation rights of a spouse or partner through a temporary protective order, even though the spouse/partner ordinarily lacks knowledge that the proceeding is even occurring.
In the interest of providing a highly sympathetic victim protection from domestic violence, a judge will likely be willing to issue a temporary restraining order based on possibly threadbare allegations by the victim, favoring a ruling preventing possible future harm at the risk of jeopardizing the rights of a possibly-blameless spouse or partner. In addition to preventing harassment, stalking and other forms of abuse, a temporary Protection from Abuse order can grant a victim sole possession of a shared residence, award temporary custody of children, and establish temporary visitation rights.
As a result, a spouse/partner can be forced from his or her home, barred from contact with shared children and forced to communicate to the accuser through legal counsel—all without even having an opportunity to present her or her side of the story. This process can short-circuit a divorce or separation proceeding where there is request for exclusive use and occupancy of a residence that require time for a court to rule, since an allegation of abuse can result in the immediate ouster of a spouse or partner from a shared residence.
By preventing the spouse/partner from having custody (in whole or shared) of children and restricting visitation to those children through allegations of abuse, an accuser can set a model for custody in a divorce or separation proceeding.
Once a temporary restraining order has been issued, the judge will schedule a hearing for a final Protection from Abuse order. It is at this hearing, that an accused spouse or partner will have a chance to challenge the allegations presented by the accuser for the first time. It is critical at this stage for a spouse or partner to bring witnesses and present evidence establishing the lack of any abuse or risk having the temporary restrictions on custody and visitation rights become permanent, especially in light of the fact that violations of such an order are punishable by up to six months in jail and a $1,000 fine. Importantly, a Protection from Abuse order can even impact a spouse’s or partner’s employment opportunities, as abuse allegations can be accessed through courts and the Pennsylvania State Police in certain circumstances.
For an innocent spouse or partner, a temporary Protection from Abuse order can severely impact custody and visitation rights. Once an opportunity is given to present evidence in a permanent Protection from Abuse hearing, a spouse or partner should take every opportunity to rebut all meritless allegations of abuse in order to maintain custody over his or her children and prevent other negative consequences. Expert legal counseling is critical for anyone who finds him or herself as the accused in a Protection from Abuse Order.