Intermission 4: Introduction to the Protection from Abuse Act, Part 2

Important Provisions, Part II

Section 6108.  Relief.

Section 6108 describes what stipulations the judge can put in a PFA order. Ultimately, it gives judges complete freedom to put in almost anything they. The parties involved can petition the court to have the order changed. The orders I’ve seen are nearly identical except for provisions regarding contact concerning children. The standard stipulations appear to have grown over the years and are now bordering, and I believe crossing over, being severe violations of civil rights.

Subsection (a) is lengthy, and I include it for completeness but will summarize it below. Note that it states the order may consist of the listed forms of relief.

  1. (a)  General rule.–Subject to subsection (a.1), the court may grant any protection order or approve any consent agreement to bring about a cessation of abuse of the plaintiff or minor children. The order or agreement may include:
    1. (1)  Directing the defendant to refrain from abusing the plaintiff or minor children.
    2. (2)  Granting possession to the plaintiff of the residence or household to the exclusion of the defendant by evicting the defendant or restoring possession to the plaintiff if the residence or household is jointly owned or leased by the parties, is owned or leased by the entireties or is owned or leased solely by the plaintiff.
    3. (3)  If the defendant has a duty to support the plaintiff or minor children living in the residence or household and the defendant is the sole owner or lessee, granting possession to the plaintiff of the residence or household to the exclusion of the defendant by evicting the defendant or restoring possession to the plaintiff or, with the consent of the plaintiff, ordering the defendant to provide suitable alternate housing.

The first subsection says the order may “direct[] the defendant to refrain from abusing the plaintiff or minor children.” The second and third subsections deal with housing and give the court the power to force the parties involved to live separately.  Even if the defendant is the sole owner or lessee, the court can provide the plaintiff exclusive possession of the residence.  However, if and only if the plaintiff agrees, the defendant can be ordered to provide alternate housing.  While I certainly understand the intent here, I find it somewhat troubling that the court can award possession of a residence to someone that holds no stake in that residence and, thus, has no incentive to maintain it.  In this case, I think the property owner or lessee should provide alternate housing with the court determining if it’s suitable.  I would rewrite the law to state that the court could grant possession of the residence to the plaintiff until the defendant finds fair alternate housing for the plaintiff.

The fourth subsection addresses custody and visitation rights concerning minor children.

    1. (4)  Awarding temporary custody of or establishing temporary visitation rights with regard to minor children. In determining whether to award temporary custody or establish temporary visitation rights pursuant to this paragraph, the court shall consider any risk posed by the defendant to the children as well as risk to the plaintiff. The following shall apply:
      1. (i)  A defendant shall not be granted custody, partial custody or unsupervised visitation where it is alleged in the petition, and the court finds after a hearing under this chapter, that the defendant:
        1. (A)  abused the minor children of the parties or poses a risk of abuse toward the minor children of the parties; or
        2. (B)  has been convicted of violating 18 Pa.C.S. § 2904 (relating to interference with custody of children) within two calendar years prior to the filing of the petition for protection order or that the defendant poses a risk of violating 18 Pa.C.S. § 2904.
      2. (ii)  Where the court finds after a hearing under this chapter that the defendant has inflicted abuse upon the plaintiff or a child, the court may require supervised custodial access by a third party. The third party must agree to be accountable to the court for supervision and execute an affidavit of accountability.
      3. (iii)  Where the court finds after a hearing under this chapter that the defendant has inflicted serious abuse upon the plaintiff or a child or poses a risk of abuse toward the plaintiff or a child, the court may:
        1. (A)  award supervised visitation in a secure visitation facility; or
        2. (B)  deny the defendant custodial access to a child.
      4. (iv)  If a plaintiff petitions for a temporary order under section 6107(b) (relating to hearings) and the defendant has partial, shared or full custody of the minor children of the parties by order of court or written agreement of the parties, the custody shall not be disturbed or changed unless the court finds that the defendant is likely to inflict abuse upon the children or to remove the children from the jurisdiction of the court prior to the hearing under section 6107(a). Where the defendant has forcibly or fraudulently removed any minor child from the care and custody of a plaintiff, the court shall order the return of the child to the plaintiff unless the child would be endangered by restoration to the plaintiff.
      5. (v)  Nothing in this paragraph shall bar either party from filing a petition for custody under Chapter 53 (relating to custody) or under the Pennsylvania Rules of Civil Procedure.
      6. (vi)  In order to prevent further abuse during periods of access to the plaintiff and child during the exercise of custodial rights, the court shall consider, and may impose on a custody award, conditions necessary to assure the safety of the plaintiff and minor children from abuse.

The guidelines here appear to mostly mirror those provided to the courts for determining custody and visitation generally.  If the court determines the defendant has abused the minor children or there is a risk of abuse, it should only allow visitation supervised by a trusted third party.  If the court determines that the abuse was “serious,” it can order that supervised visits be in a secure visitation facility or completely deny custodial access.  Oddly, this clause also states that the court has these options should it determine there is a risk of abuse.  Thus, ultimately, the court has the power to deny custodial access simply because it thinks there might be a risk of abuse.  I can certainly understand wanting to prevent a child from being abused, but I’m not sure how a court can make that prediction without some prior history of abuse.  My understanding of custody guidelines in Pennsylvania is that the court should only deny custodial access entirely if there is an immediate threat to the children.

More importantly, this subsection addresses what should happen when a temporary order is issued.  It states that the court should not alter a custody arrangement when it issues a temporary order.  However, if the court finds that the defendant is likely to inflict abuse or take the children, it can essentially do whatever it wants. It’s not clear how a court could make this determination after an ex parte proceeding in which it only heard the plaintiff unless the court had documented evidence of prior child abuse.  My particular case was unusual because there was no custody arrangement when the court granted the order.  Rita claimed the kids needed to be protected, but there was never any allegation of abuse.  It has never been clear to me how Judge Ruest decided that I could have only supervised visits when she issued the temporary order; Rita may have somehow requested it.  Again, I highly suspect that Rita’s attorney filled out the order, and Judge Ruest signed it without knowing its contents.


Again, there is a great deal of leeway here. A court can always claim they thought the defendant “pose(d) a risk of violating” the statute. It is also not clear if the last sentence applies in general or just in the case of documented child abuse.

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