Common Questions About Protection From Abuse (PFA)
Our criminal defense law firm has represented a number of persons on both sides of Protection From Abuse (PFA) in Pennsylvania and their equivalent in New Jersey–Final Restraining Orders (FRO). It is very important to understand that a PFA and an FRO aren’t criminal prosecution but that a criminal case can develop from them. Here are some common questions that we have received from clients about this concept.
- My ex-boyfriend, with whom I have a child, is harassing me. He comes to my job and leaves threatening notes on my car for me to call him. We have a court ordered custody arrangement but he doesn’t even show up anymore as scheduled. He doesn’t even care about our son! I’ve been told that I should get a PFA. Can you explain how I can do it and how will it last?
I’m sorry to hear about this situation and it sounds like you may have enough to pursue a successful PFA. When a person files a PFA, he or she is requesting the protection of the law against the person who he/she believes is a threat to their safety. If granted the PFA will last 3 years, unless the person who obtained it
Initially, when a person files for a PFA, a magistrate or Master will decide if the Petition has merit. If there is merit to the petition, the court will grant an emergency order. The court, however, will also schedule a formal proceeding where the defendant will have a right to defend the allegations usually within 10 days. The defendant must be served with the petition during this time. Following this emergency order, a judge will not conduct a hearing unless there is proof of service.
A successful petition requires that the court find that the petitioner has demonstrated that the defendant is an immediate threat to the person’s physical safety through an incident or a course conduct in the form of violence or threats of violence. While the court can look at a pattern, it isn’t required to obtain a PFA order.
One instance alone is sufficient for the Petitioner to meet the burden of proof. The judge will hear testimony and make a decision based on that testimony but the Petitioner isn’t represented by the District Attorney and the defendant isn’t entitled to counsel. Both parties, however, may retain an attorney to assist them either with the defense or the petition in itself. Remember that the burden is on the petitioner (person making the allegation) not the defendant!
- Is an abuse allegation made within a PFA, the same as a criminal charge?
Unlike in criminal court, however, the burden of proof in these proceedings is “by the preponderance of the evidence” which is much lower than “beyond a reasonable doubt” – the standard in all criminal courts in the United States. Keep in mind that unlike a criminal proceeding, a PFA matter is the Petitioner versus a defendant and not the Commonwealth vs. a defendant. Keep in mind, however, that if a person violates a PFA it can and often does lead to criminal contempt charge. In addition, to violating a Court Order the Commonwealth can prosecute this person for additions charges such as assault, and terroristic threats
- I was served with PFA petition. I’m required to appear in court
If you’re served with a PFA petition, its important to contact a criminal defense lawyer and immediately begin devising a defense strategy which may include contesting the allegations or agreeing to a “cooling off” period. Never ignore the petition and go to the proceedings even if you don’t have a lawyer. If you fail to appear the Court can issue a bench warrant and even issue a final order if the Plaintiff can show that you were served with the petition. This order will last 3 years and will substantially your hinder your ability to do things like a carry or possess a gun or even remain in your home.
Even if you don’t have a lawyer right now, don’t ignore the hearing notice and simply not show up. It is important to advise the court that you are working on obtaining a lawyer so the judge sees that you are taking the matter seriously.
- Will a PFA affect my ability to carry or even possess a handgun?
It is important to understand that a PFA will prevent you from legally owning or possessing a gun or firearm in the Commonwealth of Pennsylvania despite your Second Amendment Right to do so. While all persons have a Second Amendment right, Pennsylvania may and will restrict that right based on your prior certain criminal convictions, a PFA (6105 – VUFA).
Keep in mind that this emergency order still requires the defendant to relinquish their guns, firearms and ammunition within 24 hours of being served with the order.
The formal hearing is extremely important to your ability to possess and own a gun or firearm in the Commonwealth long term. If the judge at the hearing finds that a PFA is appropriate, he can issue a final order requiring the defendant to surrender all guns and firearms to the county sheriff’s office or provide. PFA Act, 23 Pa. C.S. § 6108(a)(7)).
In addition, a person can also be charged under the Uniform Firearm’s Act if he or she violates the Order (on top of a contempt charge). A person can be charged under Section 6105 even if the gun or firearm never leaves the person’s home or place of business. If the defendant is found outside of the home he is not only in violation of Section 6105, but 6106, and 6108. While violations of 6105 related to a PFA, aren’t as serious (misdemeanor of the first degree as opposed to a felony of the second degree) as other violations of this statute (enumerated offenses) a person would still have a criminal record. This could also affect your ability to obtain a permit to carry in the future!
In addition to preventing you from possessing or carrying a weapon, gun, or firearm a PFA Order can also do the following:
- Evict you from your home
- Modify your child custody arrangement
- Order supervised visitation with your children
- Prevent you from seeing your children
- Prevent you from attending your children’s school’s functions
New Jersey Temporary and Final Restraining Orders (Protection From Abuse)
Does New Jersey have anything like Pennsylvania when it comes to PFA?
New Jersey, like Pennsylvania, maintains laws to protect victims of domestic violence. These are court orders which prohibit the abuser from having any contact with the victim; they are often abused for other motives. In New Jersey there are 2 types of restraining orders: a temporary restraining order (TRO) and a final restraining order (FRO).
Temporary Restraining Orders in New Jersey (TRO) -Procedure
Like Pennsylvania, an alleged victim of domestic violence may file a complaint with family court at any time (even on weekends, holidays, and other times when the courts are closed). (See 2C: 25-28). Once the alleged victim files a complaint the court may issue an ex parte (1 party) temporary order, which is designed to immediately protect the life, health, and well-being of the victim who is seeking the relief. This temporary/emergency relief includes forbidding the defendant from returning to the scene of the domestic violence, forbidding the defendant from possessing any firearms or weapons, ordering the search and seizure of any weapons at any location where the judge has reasonable cause to believe the weapon is located. Other appropriate temporary/emergency relief may include directing that the possession of any property or custody of minor children be kept or withheld from the defendant until final order.
Once the judge signs the order a copy is forwarded to the appropriate law enforcement agency for service upon the defendant. A temporary order remains in place until a hearing is held in family court. Pursuant to 2C:25-29, New Jersey Superior Court will schedule a final hearing within 10 days of filing the complaint. During this hearing a judge will determine if the TRO should become a final restraining order (FRO).
Final Restraining Order (FRO) Hearing Procedure—Burden of Proof
At these hearings both parties have a right to counsel but the burden of proof remains on the plaintiff. The standard of proof at a FRO hearing is by a “preponderance of the evidence”. This is the same standard used during Pennsylvania preliminary hearings in criminal court and during New Jersey grand jury indictmentproceedings (see my article.) Basically it’s the standard to ask if it is more likely than not that these incidences occurred. Remember that in a criminal trial the burden of proof is guilt beyond a reasonable doubt, so the evidentiary standard at an FRO is much lower. At the FRO hearing the victim will have the right to present evidence in the form of witnesses and/or exhibits which could include emails, text messages, voicemails, and any other documents. The defendant will also have the ability to testify and present any evidence after the plaintiff’s presentation of his/her case.
The court during an FRO proceeding will analyze the following 3 factors:
- Whether a predicate act of domestic violence occurred;
- Whether a prior history of domestic violence exists;
- Whether the victim is in reasonable fear for their safety and a restraining order is necessary to ensure their safety.
Keep in mind that while determining if an act of domestic violence occurred, the judge will consider if any acts of the abuser constituted any of the following crimes in New Jersey:
- Harassment 2C: 33-4
- Terroristic Threats 2C: 12-3
- Criminal Mischief 2C: 17-3
- Assault 2C: 12-1
- Stalking 2C: 12-10
- Burglary 2C: 18-2
- Criminal Trespass 2C: 18-3
If the judge determines that a predicate act of domestic violence did occur, he/she will consider any history of prior threats, harassment, or physical violence. Finally, the judge will determine whether the victim is in reasonable fear for his/her safety and a restraining order is necessary to ensure his/her safety. If the judge determines that an FRO is appropriate, relief can include any of the following:
- Protection from future violence
- Prohibition against contact and harassment
- Custody of any minor children and safe conditions of parenting time
- Temporary possession of personal property
- Professional counseling
- Prohibition against weapon possession
- Support/rent/mortgage payments
Any violation of the FRO is considered a criminal offense and could result in jail time. While a restraining order is issued in civil court, any violations (contempt) of the order are heard in criminal court. For more great information on legal strategy in Pennsylvania and New Jersey, keep reading my blog
