Friday, April 15, 2011
A Protection From Abuse Order, also known as a PFA, is an order entered by the court to protect victims of domestic abuse from their abuser. Under
law, PFAs can be ordered between family or household members, sexual or intimate partners or persons who share biological parenthood. PFAs arise from a great variety of circumstances and, although any allegation of abuse is extremely serious, the facts of each case can differ greatly. When an individual seeks protection, a temporary PFA is issued. Then there is a hearing where the court determines whether a final PFA order, for a longer period of time, is appropriate. The court has the ability to create a PFA that is best suited to protect the parties involved, and the orders can vary in severity as well as length. The maximum length of a PFA in Pennsylvania is three (3) years, unless the plaintiff (the individual who originally sought the protection of the PFA) petitions the court to extend the length of the order. Civil court grant the orders, which means that, even though a PFA is extremely serious, it is part of a person’s civil, not criminal, record. Pennsylvania
Many times, after the PFA has expired, people want to know how to remove the PFA from the court record. Understandably, for many individuals, a PFA on the court record could potentially have lasting negative effects on their employment opportunities, as well as their personal reputation. Although PFA court records are not easy to obtain, they are certainly not private or protected; therefore, it is possible that a potential employer could become aware of it, especially in professions where comprehensive background checks are required. Removal of a PFA from the court record, also known as expunging the record, is much more difficult than many people realize.
The removal of a PFA from the court record is only allowed in certain circumstances.
law does not specifically address expunging a PFA, thus the legal authority on this topic comes from court decisions. Pennsylvania
In the 1998 Superior Court of Pennsylvania case P.E.S. v. K.L., a PFA was filed, but neither party appeared for the final hearing. Therefore there was no finding of abuse, but the original filing remained active in the court system. The court stated that they would allow the expunction of a PFA from an individual’s record in limited circumstances where a respondent seeks to protect his or her reputation. It is important to note that there was not a PFA ordered in this case, rather there was only an original PFA petition filed that was not pursued by either party.
The Pennsylvania Supreme Court addressed PFA expunction in the 2002 case Carlacci v. Mazaleski, where a PFA filing led to a temporary PFA order. The parties then executed an agreement stating that the temporary PFA was null and void before a hearing was held to determine if a final PFA order would be established. The court reiterated that an individual has the right to petition to expunge a PFA petition against them to protect their reputation. The court also determined that when the petition is either dismissed (as in the P.E.S. case) or the proceedings never go beyond the temporary order stage to a hearing on the necessity of a final PFA, the court does not need to go further in determining if the record should be cleared.
There was no clear decision on whether PFA petitions that actually led to a final PFA could be expunged after the terms of the final PFA Order expired until the Superior Court of Pennsylvania decided Commonwealth v. Charnik. In Charnik, the man charged with a PFA had two indirect criminal contempt charges for violating the PFA. The victim later filed a Petition to Withdraw the PFA Order. The court ruled that this case was distinct from prior cases because the order was final, there had been a hearing on the evidence and the court determined that the protection of a PFA was appropriate. Thus, the court declined to allow for the expunction of a final PFA order at that time.
courts have the opportunity to address final PFA orders and determine that they may be expunged, they currently are not subject to expunction. Only orders that have been dismissed or fail to go beyond the temporary order stage can be expunged from the individual’s record, and even this procedure is not automatic. This is especially important for individuals involved in PFA proceedings to keep in mind. Of course, in some circumstances a PFA is absolutely necessary for the protection of a party and later expunction of the record is not an appropriate consideration. However, if the parties can agree to terms under an agreement without requiring a final PFA, this can save the alleged abuser considerable future difficulties explaining the court record. If you or someone you know is involved in PFA proceedings, it is wise to consult with an attorney to obtain the best legal advice for your situation. Pennsylvania
Written by Elizabeth Early, law clerk at the Law Offices of Linda A. Kerns, LLC. Edited by Linda A. Kerns, Esquire.