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Marjorie E. Crist
Attorney At Law
The Crist Law Blog
Blog
Protection From Abuse ~~Final Order v. Civil Consent Order ~~ Know the Difference
| Posted on 11 May, 2013 at 18:48 |
comments (109)
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Sadly, the Pittsburgh area has lost another victim to domestic violence. Within 24 hours of this most recent horrific tragedy? The morning brought a local "news story" about a 5 month old baby being kidnapped by his father in another domestic incident. Thankfully, after an Amber Alert was sent, the baby was found. Week after week the Family Division of the Allegheny County Court of Common Pleas, as well as county courts throughout the Commonwealth, handle domestic violence cases. . . lots of domestic violence cases. In Allegheny County many cases do not "go to hearing" and are resolved by the entering of one of two types of court orders: 1) a final Protection From Abuse ("PFA") order; or, 2) a civil consent order. It's important to understand the difference because the papers mean different things and have different levels of "teeth" if you will. First, it helps to understand how PFA court in Allegheny County works. Plaintiff's and defendants show up and sit in separated waiting areas located on the 3rd floor of the Family Division court building (the old jail). The attorney's have a workroom in between these waiting areas. Victims are represented by private attorneys, pro bono attorneys via legal services or certified legal interns. Some, but not all, defendants will hire private attorneys. Because this is not a criminal case, the concept of a public defender does not exist for PFA defendants. The victim can, however, also file criminal charges such as simple or aggravated assault. The victim's representative will discuss the matter either with the defendant's attorney or directly with the defendant if unrepresented. Through this process the case moves in one of a few directions if both parties show up: civil consent order; final PFA order as agreed to by both parties; or, on to a hearing before the judge many times with a conciliation happening before moving to an actual hearing. The majority of cases end up settling with either a final PFA or a civil consent order. So what is the difference? Final PFA Order: Keeps the temporary PFA active and can prolong the period of the order out by three (3) years. If the defendant violates the order? He or she faces a criminal, not civil and this is important, contempt charge. This is called an ICC for Indirect Criminal Contempt. Logistically, if you have a final PFA the defendant is in violation of you can call the police and they will arrest the defendant. Not so with the civil consent order. Civil Consent Order: Vacates the temporary PFA. You no longer "have a PFA against" defendant. You have a civil order reflecting the agreement of the parties. Many times it does have language to the effect of "defendant is excluded from the residence", "may not come to plaintiff's place of work", "may not contact or call plaintiff" all which provide some comfort to the victim. Maybe. If defendant violates this civil order? Your recourse is to file a civil enforcement and contempt motion in court. There are no criminal contempt charges attached to this type of order. The police can and should always be called to keep you safe. However, under a civil consent order defendant has not criminally broken the law. You can't say to the police "I have a PFA against him" because under a civil consent order, you don't. Your ability to enforce the order is through the process of filing an enforcement/contempt motion in court. Why not just ensure a final PFA order is entered? Many defendants or their counsel dig their heels in and will not agree to a PFA order because it carries the risk of criminal contempt or they firmly believe they are being falsely accused of abuse or the plaintiff is using the PFA system wrongly for strategic purposes in a custody dispute or to obtain exclusive possession of the house in a divorce. As a victim you should never feel pressure in signing a consent order nor obligated to resolve the case without having it pushed to the next level. The professionals such as the certified legal interns and domestic relations attorneys who regularly work in Family Division understand this. If you are not comfortable lifting the PFA via a civil order, alert your attorney or representative. By sticking to your position of wanting a final PFA you move your case to: 1) a conciliation which involves a closer look by the judge and many times a judge will let you or counsel know what they see as strengths and weaknesses in the case as a PFA case versus an attempt to get some other relief such as custody; or 2) a hearing where you will have an opportunity to fully testify as to how you believe the defendant poses a threat to you. Defendant also will have an opportunity to testify. Understand going to hearing is not without its pitfalls. You may lose and have the temporary PFA vacated. It is important therefore to take judicial cues at the pre-hearing conciliation step seriously because you may still negotiate a consent order. Finally, whether you have a final PFA or a civil consent order, or no order at all take all pre-cautions necessary to keep yourself as safe as possible. Insist on a neutral way to obtain belongings...one that does not involve any contact with defendant or which defendant can show up. Obtain a law enforcement escort. Call the police if threatened. File another PFA. Most important, never feel you shouldn't or it is easier this way or you'd burden someone by seeking help and protection. |
