We all know that domestic violence is a serious issue. The state takes the matter seriously in Pennsylvania, passing the Protection from Abuse Act in 1990. The PFA Act allows victims of domestic violence to apply for Protection from Abuse (PFA) orders, a civil order that can prevent a defendant from approaching or contacting the applicant. If someone alleges domestic violence and applies for a protective order against you, it's always a serious matter. But if you have children or stepchildren, it can seriously complicate your relationship with your children. You may find that you can no longer see or contact your children. The court can also remove you from the home you share with them, leaving you uncertain about your legal rights as a stepparent.
Stepparents and Protection From Abuse Orders
As a stepparent, having a Protection from Abuse order served against you may impact your relationships with your stepchildren differently depending on many factors, including:
- Whether you are married,
- Whether you've consistently acted as a parental figure,
- Whether you've taken legal steps to secure your parenting rights, including adoption, custody, or visitation petitions, and
- Whether your ex can obtain a final PFA from the court.
It's important to understand the PFA process in Pennsylvania, custody and visitation for stepparents and other nonparents, and how a PFA can affect your custody and visitation if it becomes final. You should also consult attorney Joseph D. Lento and the PFA Defense Team at the Lento Law Firm. They've been helping people accused of domestic violence in Pennsylvania for years and can help you too.
Protection From Abuse Order Process
The process to obtain a Protection from Abuse order is the same in courts across Pennsylvania. After the applicant fills out a petition for a PFA, the court will hold a hearing for a temporary PFA, followed by a hearing for a final PFA about ten days later.
After the application, a judge will first determine whether a temporary PFA is needed because the applicant or their children are in "immediate and present danger of abuse." The judge will hold an "ex parte" hearing with only the plaintiff present to decide this. You won't be notified of this preliminary hearing and have no right to attend. During the hearing, the judge will ask the applicant about their relationship with you and any specific acts of domestic violence. The judge may then issue a temporary PFA ordering you to stay away from the plaintiff and to refrain from approaching them.
The police will immediately serve you with the temporary PFA and a notice of the final PFA hearing. The final PFA hearing typically happens within ten business days after the initial order. The temporary PFA order may also include your stepchildren or any children you share until the final PFA hearing. The temporary PFA may also order the police to remove you from a home you share with the plaintiff.
A final PFA hearing is a formal court proceeding. While the court won't require you to have an attorney, it can be challenging to navigate a court hearing without one. An attorney experienced in PFA hearings will understand the rules of evidence when to attach the admissibility of evidence proffered by the applicant, how to effectively cross-examine witnesses, and how to best present your case and defense in a legally permissible way to the court.
At the final hearing, the applicant must show by a preponderance of the evidence that they are in a qualifying domestic relationship and that an act of domestic violence occurred.
- Qualifying Domestic Relationships In Pennsylvania, Protection from Abuse orders are specifically created to help people in qualifying domestic relationships. These qualifying relationships include:
- Current or former spouses, domestic partners, and same-sex couples,
- Current or former intimate partners, including those in dating relationships,
- Family members such as parents and children, siblings, and other household members, and
- Those who share a child.
If you are or were living with the applicant or in an intimate relationship or marriage, your relationship probably qualifies as a domestic relationship under the Pennsylvania PFA statute.
- Domestic Violence Allegations In the final PFA hearing, the applicant must also show that an act of domestic violence happened. If you've already been convicted of a domestic violence charge, the court will take that as evidence of domestic violence in the relationship. If not, the applicant must prove that one occurred through evidence such as medical records, photographs, or witness testimony. However, the definition of domestic violence in Pennsylvania doesn't just include simple or aggravated assault. A wide range of crimes falls under the heading of "domestic violence" under Pennsylvania law, including:
- 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.
- Placing another in reasonable fear of imminent serious bodily injury.
- The infliction of false imprisonment […].
- Physically or sexually abusing minor children […].
- Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury. […]
See 23 Pa. Stat. § 6102(a) (2018). Domestic violence can include crimes like assault, sexual assault, kidnapping, stalking, harassment, false imprisonment, burglary, or destruction of property. If the judge issues a final PFA against you, it can remain in place for up to three years. However, the applicant can renew the PFA a limitless number of times. If the judge believes that you have violated the PFA or still present a threat to the applicant, they will renew the order once its initial term expires.
Potential Consequences of a PFA
A protection from abuse order isn't a criminal action. However, having a final PFA entered against you can still have serious consequences. Moreover, violating a PFA is a criminal offense in Pennsylvania. If the police have probable cause to believe you have violated a PFA, they will arrest you.
- No Contact Order: A PFA will typically order you to refrain from approaching or contacting the applicant and sometimes also the children in the home. The PFA may also prevent you from going to places the applicant frequents, such as their workplace, friends' homes, gym, school, or your stepchild's school and activities.
- Removal from Your Home: In many cases, if you share a home, a PFA will order the police to remove you from the home. This can happen even if the mortgage or lease is in your name alone. At the same time, the court will often order you to continue paying the rent or mortgage, even while the PFA prevents you from living there.
- Removing Weapons: The PFA may also order the police to confiscate any firearms you own or possess, including any permits you have.
- Financial Support Obligations: The PFA may also order you to continue making payments on financial obligations you share with the applicant, such as rent, a mortgage, a car payment, or insurance. The PFA may also order you to pay additional financial support to the applicant. If you've acted "in loco parentis," the judge may also order you to pay child support until a family court can decide the matter.
- Custody and Visitation: Finally, a PFA can contain temporary orders regarding the custody and visitation of any children in your relationship, including stepchildren or those with whom you have a parent-child relationship.
In many cases, a PFA's provisions regarding custody, visitation, and support for minor children will be temporary. The court often puts these in place until the parties can resolve the issues through the family court. If you already have a divorce or custody and visitation dispute pending in family court, the process may be a bit faster, but having the court decide the custody and support for shared children is never a quick process.
As a result, the family courts in Pennsylvania encourage mediation of custody and visitation issues. However, with credible accusations of domestic violence, mediation may no longer be possible for you and your former partner. In these cases, the temporary provisions of your PFA can remain in place for a significant period, potentially keeping you from seeing your stepchild. That's why it's urgent that you consult attorney Joseph D. Lento and the skilled PFA Defense Team at the Lento Law Firm as soon as possible.
Custody and Visitation as a Stepparent
Even without allegations of domestic violence or a pending PFA order, custody and visitation can be complicated and emotional. The same can be true for custody disputes over your stepchildren or children you've parented from an early age. We often think of custody and visitation as rights only granted to biological parents. But under Pennsylvania law, others close to a child can receive custody or visitation from the family court, including stepparents. A nonparent, such as a life partner, stepparent, child caregiver, or a loving family member, can ask the court for visitation and, in some cases, custody of a child.
Custody or visitation for a stepparent or nonparent can happen with the agreement of a natural parent or against their wishes in certain circumstances. The court will decide whether having a stepparent's continuing presence in the child's life is in the child's best interests. To receive visitation or custody, you'll need to show that you've acted in a parental capacity in the child's life with the consent and approval of their natural parent. While there's no strict rule or test to determine "parental capacity," the court will look at:
- How long you've been in the child's life,
- How independent your "parenting" was,
- Your level of parental involvement, and
- Whether the child views you as a parenting figure.
Typically, the court is more likely to grant you parental rights after a divorce or separation if you've been a parental figure from a young age, even more so if the other biological parent isn't a part of their life. However, allegations of domestic violence, such as those included in a Protection from Abuse order, can also affect a custody or visitation action. That's why discussing any PFA order you receive with attorney Joseph D. Lento and his skilled PFA Defense Team at the Lento Law Firm is crucial.
Support Obligations of Stepparents
Many of our clients also ask whether a stepparent is responsible for supporting a stepchild financially after a divorce or separation. Typically, a stepparent isn't responsible for child support unless the court finds that they've acted "in loco parentis" or as a parental figure. If you seek custody or visitation, the court will likely find you responsible for some financial support. Under some Pennsylvania case law, if you take steps to assume the same parental rights as the child's biological parent, the court can hold you financially responsible for their support.
Seeking legal rights as a stepparent may trigger child support obligations.
For example, in the case of A.S. vs. I.S, A.S.'s mother married I.S. when her twin sons were seven. She then sought child support from the children's stepfather during their divorce four years later, when the boys were 11. Under their separation agreement, they also had an informal shared physical custody agreement. Three years later, when the mother sought to relocate to California, the stepfather sought an emergency order from the court preventing the mother from moving the boys out of the state. The trial court awarded the couple joint physical custody in that litigation, finding that the stepfather stood "in loco parentis."
The mother initiated a child support proceeding against the stepfather during the custody proceedings. However, the support master dismissed the initiative holding that he had no duty to support the children as their stepfather under existing case law. The trial court agreed, as did the Superior Court. On appeal, the Supreme Court of Pennsylvania disagreed.
The court held that if a stepparent initiates legal action seeking custody rights equal to those of a biological parent, it may trigger child support obligations. The court stated, "by holding a person such as Stepfather liable for child support, we increase the likelihood that only individuals who are truly dedicated and intend to be a stable fixture in a child's life will take the steps to litigate and obtain rights equal to those of the child's parent."
Your stepparent child support obligations may be commensurate with a biological parent.
Typically, the court won't look to a stepparent's income to decide how much support they should contribute. However, if you seek custody rights and the court finds you acted "in loco parentis," that can change. Under the A.S. case above, the court stated, "where a stepparent owes a duty of support based on obtaining equal legal and physical custodial rights to those of a biological parent, then the typical support procedure should follow, including application of the guidelines found in the Rules of Civil Procedure."
The family court uses an "income shares" model to determine child support for parents. Under this model, each parent's share of the basic support obligation calculated by the court is paid proportionally to their income. The amount is generally based on the parents' combined monthly net incomes and the number of children each supports. Income will include:
- Wages from employment,
- Collected rent,
- Retirement income,
- Some benefits, such as a housing or car stipend,
- Lump sum payments like lottery winnings,
- Alimony received, and
- Any amounts paid to that parent.
To determine "net income," the court will take each parent's gross income and subtract things such as:
- Federal, state, and local taxes,
- Social security, Medicare, and self-employment taxes,
- Mandatory retirement contributions,
- Mandatory union dues,
- Alimony paid to the other party, and
- Unemployment and local services taxes.
Other costs that may consider in the basic support obligation for a child can include:
- Health insurance,
- Private school tuition, and
The court may allocate these amounts to each parent in proportion to their shares of the child's support obligation.
Custody and Visitation After a PFA
If the judge enters a final PFA order against you, it may contain temporary provisions for custody and visitation of stepchildren. However, as a stepparent or someone who simply acted in a parental role, you may have fewer rights than a biological parent. Under normal circumstances, if you've taken legal action in the past to secure your rights as a parent through adoption or a custody and visitation petition in family court, and you've acted in a parental role for a significant portion of your stepchild's life, a family court may find that you've acted "in loco parentis." When this happens, a family court can award visitation and shared custody and assign financial support obligations to a stepparent. However, allegations of domestic violence can affect this action.
When deciding a PFA matter, the court must find by a preponderance of the evidence that an act of domestic violence occurred. If the court finds that this happened, the family court may also consider this in custody and visitation decisions for stepparents. In determining custody issues, the court must examine the "best interests of the child." In determining this, the court looks at:
- Whether there is a history of abuse committed by you or another household member and whether you are a continued risk of harm to the child. If a court found an act of domestic violence occurred in the home during a final PFA hearing, the family court may way this factor heavily in determining whether a stepparent may have the same custody and visitation rights as a biological or legal parent;
- The need for stability and continuity in a child's life, including a continued relationship with extended family members, stepparents, and full, half, or stepsiblings;
- Which parent is most likely to continue frequent and ongoing contact between the child and the other parent or stepparent, and whether the parents have a positive relationship or if there are signs of parental alienation from one parent;
- The parental role each parent performed, the parenting duties they performed, and for how long;
- The availability of extended family and a support system. Having an actively involved, loving stepparent and extended family can increase a child's support system;
- The child's sibling relationships, including whether they have any full or half siblings or stepsiblings, and the value of these continued relationships and coordinated visitation schedules;
- The parent most likely to attend to the daily physical and emotional needs of the child, and which parent is most likely to create a stable, loving, and healthy environment for the child;
- The ability of each parent to provide childcare and the proximity of their households;
- The level of cooperation between the parents and the level of conflict between the parties; and
- The preferences of the child.
If the judge finds that there is domestic violence in the home, you will likely find your custody and visitation limited or revoked. As a stepparent, you are more likely to be denied ongoing visitation or contact with your stepchild, even if supervised visitation is an option. With domestic violence as a factor, you may lose custody and visitation altogether.
You Need Attorney Joseph D. Lento
If you're facing a Protection from Abuse order against you and are concerned about how it can affect your relationship as a stepparent, you need legal advice urgently. Attorney Joseph D. Lento and the experienced PFA Defense Team at the Lento Law Firm have been helping Pennsylvanians accused of domestic violence through the PFA process and the criminal justice system for years. Find out how they can help you too. Call the Lento Law Firm at 888-535-3686, or contact them online to set up your consultation.