Recently there has been a good deal of attention focused on spousal assault and/or child abuse. While there is a need for attention into the matter of domestic abuse, there are too many instances where this attention acts to promote abuse of the abuse law itself. In an alarming number of cases false allegations of abuse have become an omnipotent weapon in an impending divorce/separation/custody action.
How has this come to pass, one might ask? The answer requires a brief historical analysis.
In Pennsylvania, the first domestic abuse act was passed on December 6, 1976. The act provided for reporting requirements and police intervention in domestic relations incidents. However, much discretion for enforcement and intervention was left with the police and other agencies. Due to the lobbying efforts of such groups as 'A Woman's Place' the first substantive act was enacted on April 18, 1988. This is the first of the Acts that began to significantly deprive the wrongly accused of personal freedoms and property rights. Most importantly, these deprivations can and do occur without due process of law. The law was further modified in 1989, 1990, 1994, and most recently in March 1995. The current law as we know it was enacted as 23 PA C.S.A. § 6100 et seq. and is known as the PROTECTION FROM ABUSE ACT (PFA).
The Act provides for the following remedies:
1. The accused loses possession and/or is evicted from his home.
2. The accused temporarily loses custody of his children for up to twelve months. Under certain circumstances, custody may be permanently lost for two or more years.
3. The accused is ordered to pay temporary child/spousal support.
4. The accused is prohibited from entering or coming anywhere near the plaintiff's residence, place of business, school, or family.
5. The accused is to have no further contact with the plaintiff or the plaintiff's family.
6. The accused is ordered to pay all of the expenses of the plaintiff, including medical bills, moving expenses, loss of earnings, and attorney's fees.
7. Additionally, the accused is restrained from any further abuse.
While these remedies appear reasonable at first glance, here is the reality in actual practice:
1. The accused is immediately thrown out of the family home without his personal property, clothes, or other necessities. He is often given only twenty minutes (under police supervision) to gather what he can. If served at a location other than that home, the accused can be virtually left with no clothing, toiletries, or money.
2. The accused loses all or most of his valuables and treasured personal property.
3. The accused is denied access to his financial records and documents. These papers are often taken by the plaintiff to her attorney for use in the support/divorce action.
4. If there is a joint bank account, the accused often loses access to any assets in this account.
5. The accused loses possession of the family home, probably permanently. The accused is usually thrown out of the house for up to ten days while awaiting a hearing before the Judge. This is more than enough time for the plaintiff to move, transfer, and/or distribute the accused's personal property. In addition, the plaintiff is in a position to destroy the home, if so inclined. The displaced accused remains responsible for all the liabilities connected with the property.
6. The accused loses all custody of his children in all but the most exceptional cases. Most often, the accused is denied visitation with the children, either legally, or in practice through the conduct of the plaintiff.
7. If and when a formal custody proceeding is commenced, the accused is often reduced to supervised visitation with his children.
8. Despite being denied access to his children, the accused will be ordered to pay spousal/child support. The amount of this support may be assessed with no regard to the support guidelines, or the party's ability to pay. Failure to pay child support will lead to incarceration.
9. The accused will be expected to avoid the plaintiff at all costs. If the accused as much as passes the plaintiff on the street, a possible charge and conviction of stalking may follow.
10. There will be no provision for the possibility of reconciliation between the parties, even though the Pennsylvania Divorce Code clearly claims that the policy of the Commonwealth is to "Encourage and effect reconciliation and settlement of differences between spouses, especially where children are involved." A PFA order, prohibiting any further contact or communication ensures that a reconciliation may not even be discussed.
11. For all of these benefits and privileges, the accused can then be ordered to pay all of the plaintiff's fees and expenses. Attorney fees alone can potentially exceed $3000.
A typical PFA order is often sought when the Common Pleas courts are closed. A temporary Order may be granted by a District Justice at an ex-parte hearing, after an initial interview with and coaching of the plaintiff by volunteers from 'A Woman's Place'.
The District Justice is only permitted to grant a temporary order if he/she feels that the plaintiff is in "immediate and present danger to (herself) or minor children." This is a factual conclusion which must be based on the representations of the plaintiff, with preparation from a member of the staff of 'A Woman's Place'. Despite this statutory requirement, emergency orders are awarded as easily as widgets rolling off an assembly line.
With this temporary order in hand the plaintiff is loaded for bear. The plaintiff is now about 50% of the way toward total destruction of the wrongly accused.
By law, within 10 days a hearing must be held in Common Pleas Court. The accused has been out of the house for that period. His expectancy is that this nightmare is coming to an end. By now he is probably desperate for a hug from his children. But the converse is too often true. Typically, the accused will be appointed an overburdened pro bono attorney, who will, in most cases, try to pressure the accused into signing an agreement for Final Order by Consent without a hearing. Far too often, men will comply with this after being told "This in not an admission of guilt." "You don't want to see her anyway." "It's just easier this way. It won't change anything for you." The accused is promised almost anything, including the chance at reconciliation, if desired. Just to compel the signing of this document. This agreement will haunt you! It will be used by the plaintiff in any impending action. The agreement is often taken as an admission of guilt, despite the language it contains. YOU ARE NOW BRANDED AN ABUSER.
If you refuse to sign the agreement, the case will be heard by the Judge. At this point, you have a chance to try and present your defense. Good Luck!!
The PFA statute is located at 23 PA C.S.A. § 6100 et seq. Here are a few of the provisions of that statute:
1. The plaintiff may be accompanied by her counsel, and a counselor from 'A Woman's Place'. Her attorney is obtained from Bucks County Legal Aid, through 'A Woman's Place'. The counselor is permitted to coach the plaintiff's answers. Oftentimes, the plaintiff is coached to misstate the facts, or to create facts in order to prevail. In the meantime, in Bucks County, the accuseds are represented by a single overburdened attorney acting on behalf of the Bucks County Bar Association, with rules and restraints established by Bucks County Legal Aid. This poor soul often has as many as 50-100 accuseds per day, with seconds for each.
2. The plaintiff may introduce and utilize documents and materials the accused has never before seen. Additionally, the authors and creators of these documents need not be present for cross-examination. The documents need not be authenticated nor shown to be reliable.
3. The standard of proof at these hearings is the "preponderance of evidence." This means that the discretion remains with the Judge to grant or refuse the Order, based on hearsay or other improper evidence.
4. The plaintiff may then be permitted to relocate with the children to an unknown location. This location MAY NOT be revealed under any circumstances.
5. A Final Order may last as long as one year. However, this period may be extended with no limitations. An extension may be prompted by the plaintiff if she chooses to file further false allegations.
6. Contempt of the Order looms ever in the background. And she doesn't even need to call the police to charge you. If an Officer sees you near her, her home or even your children, the law gives him the right to arrest you for violating the order. Of course, she may still call the police if she comes up with other ‘evidence' of a violation.
So, how does this affect divorce? The answer should be obvious. In a divorce, the key issues are often custody, support, and equitable distribution. Under a PFA action, these issues are resolved upon the granting of the final order. While the remedies granted under a PFA are expected to be temporary, the reality is a very different matter. Once a PFA has been granted, the accused, rightly or wrongly, is branded an abuser. The accused will find it difficult to seek relief from the Family Courts at any further point in the system. All other issues will be colored by the plaintiff pointing to the PFA and yelling that this is an abusive man!
With the access of the plaintiff to all of the personal property for the duration of the PFA, the accused has already lost at equitable distribution. Much of the time, the marital estate has been decimated. If an injunction preventing transfer, distribution, or disposition of the marital property remaining in the house is sought, a Family Court Judge will often refuse to grant this. The Judge, to the contrary, can order the accused to turn over any and all liquid assets to the plaintiff or her attorney. This leaves the accused in a position whereby he cannot afford legal counsel to further defend himself.
Among the standards in custody is the nature and extent of alleged abuse in the household. If the plaintiff uses the final order, and she will, during a custody action, the accused may lose all custody, as well. Custody may be further impaired if the plaintiff can scheme to find the accused in contempt of the order.
Additionally, it is not uncommon for the accused to be denied access to his children for months at a time. A final hearing on custody can be repeatedly continued by the plaintiff which can have the effect of continuing the PFA. Also, we have heard, that some volunteers from 'A Woman's Place' advise their clients not to comply with any order that grants custody or visitation to the accused.
Permanent child support will be determined according to the State Guidelines. However, if the abuse issue is presented to the accused's workplace, he may lose his job, as well. Support will then be determined by what is termed an "earning capacity." This is the standard which is used when it is alleged that the defendant has wilfully terminated his employment to avoid payment of support. Of course, the accused has been separated from his financial records, and is unable to report his income and expenses.
PFA has become the most employed tool in divorce and custody actions. One simply alleges a false claim of abuse and the accused loses the entire matter. The plaintiff/accuser walks away completely victorious. The number of false abuse claims is ever rising. There are no statistics showing the number of truly founded abuse claims, but it has been reported that nationally the number of false claims is about 56% and growing.
Here in Bucks County there is basically one day, Wednesday, set aside for PFA hearings. The morning session is for new orders, and the afternoon for contempts. What this means is that the accused has less than 5 minutes to meet his new lawyer, discuss his case, and defend his case. No wonder the lawyer says that signing the agreement is easier!
"Abuse" is now a password among plaintiff attorneys. With this one action, you can pass 'Go' and collect it all! Among the more sleazy lawyers, this is the first action taken in a domestic case.
It was ironic when the courts said that the purpose of the PFA statute is to provide a cooling off period. They also told us that its' sanctions should never be used to gain an advantage. The reality is that our current system promotes and encourages this very thing.
The false reporting tactics have taken a well-intentioned law and perverted into an abusive device in divorce and custody matters. A tool which gains a divorce and all of the associated issues for the false accuser in one easy step.