Domestic violence is a serious charge. In response to the threat to families and children, the Pennsylvania legislature enacted the 1990 Protection from Abuse Act. The law allows those in abusive intimate relationships to seek a court order preventing the abuser from approaching or contacting them and delineates the procedures the parties, the court, and the police should follow during the protection from abuse (PFA) process.
Protection from Abuse Orders
To obtain a PFA, the plaintiff initiates an action in court. A judge will determine whether a temporary PFA is needed to protect the plaintiff or their children from immediate harm. When issuing the temporary PFA, the judge will also set a hearing date for a final PFA hearing, typically within ten days. You should then receive service of the temporary PFA and the notice of the hearing.
At the hearing for the final PFA, both parties have the opportunity to sell their side of the story. Both parties may introduce witnesses and evidence and cross-examine the other parties' witnesses. However, the plaintiff will need to show by a “preponderance of the evidence” that:
- The parties have a qualifying domestic relationship and
- An act of domestic violence occurred.
A qualifying domestic relationship can include current or former spouses, current or former intimate partners, those with a child together, same-sex couples, and family members by blood or marriage.
Acts that qualify as “abuse” or domestic violence under the PFA Act are defined broadly and can include assault, sexual assault, stalking, harassment, burglary, kidnapping, and more, as well as the threat of any of the same actions. Engaging in a repeated course of conduct that puts someone in reasonable fear of bodily injury also qualifies as abuse. See 23 Pa. Stat. §6102(a) (2018).
If the plaintiff proves all the required elements by a preponderance of the evidence, the judge may issue a final PFA, which can remain in place for up to three years. The final PFA will include restrictions that can prevent you from contacting or approaching the plaintiff, whether in person, by text, or online. The PFA may also remove you from a shared home, delegate temporary custody of any children to the plaintiff, and order that you pay spousal or child support as well as any joint financial obligations like rent or a mortgage. If you fail to appear at a final PFA hearing, the judge may issue a final PFA order anyway.
Vacating a Protection from Abuse Order
There are some limited situations where you may be able to ask a judge to vacate or reconsider a PFA order. Typically, a court will only vacate or reopen a matter for (1) excusable default or (2) lack of personal jurisdiction. In the context of a PFA order, these reasons include:
You didn't have notice of the hearing.
Typically, after a judge issues a temporary PFA, the police serve you with the PFA and a notice to appear at the hearing for the final PFA. The temporary PFA only stays in place until the hearing on the final PFA. The final hearing generally happens within ten days of entry of the original order. If the police cannot serve you, the court will often extend the temporary PFA until a new hearing date. If the police never served you with the original temporary PFA or the notice of the hearing, you cannot know when and where to appear.
It's also possible for the police or a process server to serve the wrong person or improperly attempt to serve someone. Under the Pennsylvania Rules of Civil Procedure, service of process in domestic relations matters can be made by the sheriff or a “competent adult” by handing a copy:
- To the defendant,
- To an adult at the home where the defendant resides,
- To an adult at the defendant's place of business, or
- If a process server or the sheriff can't make personal service within 48 hours after the court issues a temporary PFA, the court can order service by mail.
Penn. R. Civ. Pro. § 1930.4 (2021).
If you are in Pennsylvania, service must happen within 30 days. If you are outside the Commonwealth of Pennsylvania, service must happen within 90 days. If service doesn't happen or service is improper, your lawyer may be able to ask the court to vacate a final PFA order if the hearing happened in your absence.
You had good cause to miss the hearing.
Likewise, your attorney may also be able to vacate a PFA order if you had good cause to miss the hearing and were unable to request a continuance. “Good cause” doesn't mean you had a cold and didn't feel like going. Rather, “excusable default” typically means you had:
- A reasonable excuse for missing the hearing and
- A meritorious defense.
Whether something is a reasonable excuse will be up to the court. Still, the typical good cause might include a serious illness, being out of town when receiving the summons, or incarceration. In some cases, if you called the plaintiff's attorney and they told you not to bother appearing in court, it may be a reasonable excuse for missing the hearing. You should also have a “meritorious defense” to the PFA, meaning you have a defense that isn't ridiculous.
The court had no jurisdiction.
The court may also vacate a PFA order if it had no jurisdiction over you, such as if you were never properly served. If you wish to vacate an order on the grounds of improper service or jurisdiction, you won't also need to show a “meritorious defense.” You will, however, have the burden of proving that service was deficient in some way.
As you can see, vacating a PFA order is no easy matter. Your best option to defeat a PFA is always to appear at the final hearing if at all possible. While having an attorney isn't mandatory, having experienced legal representation is your best show at successfully defending a protection from abuse order. To be clear, if you simply fail to show up for the final PFA hearing, the court will be unlikely to consider a motion to vacate or reconsider the PFA after a default judgment.
Hire an Experienced Protection from Abuse Attorney in Pennsylvania
If you're facing a final protection from abuse order, or if a court has already issued the order, you need an experienced attorney right away. Attorney Joseph D. Lento has spent years defending clients from protection from abuse orders, domestic violence charges, and other criminal matters throughout Pennsylvania. He can help you too. Give the Lento Law Firm a call at 888-536-3686 or contact them online.