Law School Late: 12.26.20

A 1L with POA

Written December 24, 2020

In Memoriam

Warren H. Butler

Sept. 23 1936 — Christmas Day 2020

I am writing—or at least I have been intending to write—about the experience of getting a JD in my 50s. It turns out that the experience of getting a JD (especially on the two-year accelerated track that I’ve chosen) leaves little time for reflection, let alone writing, about that very experience, and here I am already at the end of my 1L year with not a single new post in this collection. But I have many thoughts, and hopefully I’ll gradually find moments to share some of them over these next months.

It’s difficult to separate the element of my age from the other factors that have characterized this JD adventure so far, most especially my anomalous idea of “fun” (which already involved reading SCOTUS opinions and law review articles) and the COVID-19-shaped wrench in the works of my 1L year. I can’t report on whether the academic work is “hard” or “easy,” because my standards are probably skewed; and I can’t say whether I like “going to law school,” because I’ve never yet physically been there for a class.

Sometime I hope to explore the cultural differences between the several generations represented in my accelerated JD cohort at Drexel, and celebrate the diversity of our group, cohesive despite the wide range in our ages. But today I find that the most salient feature of pursuing a JD at age 51 is my generational location between my parents and my kids. I started this day fielding a call from an ER doctor, because I hold Power of Attorney for my elderly dad who has vascular dementia and now COVID—and then packing a hasty bag lunch for my 22-year-old son, because he had slept through four alarms and was now late to his caregiving job. So this entry is a reflection on being daughter and mom while juggling Civ Pro, Pro Bono, and Blue Book.

***

My father graduated from Yale Law School in 1961, but I didn’t know this until I was in my 40s. We weren’t a storytelling family, and he hadn’t practiced law in my living memory, gravitating instead to policy and consulting. Whenever I spoke to him by phone over this past year, from the start of my studies in May until just before he was hospitalized this November, he was delighted to hear that I was going to law school—every single time. His short-term memory had been reduced to a span of about twenty minutes, and his understanding of the contemporary world was locked somewhere around five years ago; but he could remember with precision the name of the undergrad who had inspired him to apply to YLS, and also how hard contracts class was.

I expect it’s uncommon for a 1L to have Power of Attorney while studying to join that profession. Though my responsibilities for my two kids, 17 and 22, have gradually decreased, the reality of being on-call for my aging dad this year has increasingly been the subtext of my days, compounded by the threat of COVID. If he or my mom had gotten ill at home, I was the daughter who could most reasonably move in with them from my home in another state, especially since I was attending Drexel remotely anyway. Awareness of this possibility lit a fire under me for studying, as I calculated how far ahead I could get and still survive catching the virus myself without having to drop out.

First semester passed without incident. Meanwhile, I learned the joy of delegating meals and shopping to my college senior son and his high school senior sister, whose experimental culinary endeavors have added spice (sometimes too much) to our home life during COVID. Caleb stuck around for his fall semester, and Susanna was already home schooling, so here we were, the “Always At Home Club,” together again. Unexpected benefits of our quarantine days have included Caleb’s daily curating of the latest coronavirus news and Susanna’s reading of Scott v. Sandford, Plessy v. Ferguson, and Brown v. Board of Education the same month my Con Law class tackled them.

I said my responsibilities for these two wonderful humans have decreased; but they haven’t entirely disappeared: I’m still the mom they talk to, the kitchen boss, and the go-to parent for extra phone data and college recommendations (as the home school coordinator I count as Susanna’s “counselor” for the Common App). I learned, after more than one unfortunate incident, that I should delegate meal prep when I have a memo due, and that people won’t know to not talk outside the office door WHEN I’M TAKING A TIMED EXAM unless I tell them. Still, this is nothing like the parenting challenges of my classmates with younger kids, who still have to do taxi duty, make schedules and meals and doctor appointments, and persuade born performers not to steal the show on Zoom during Property. I really have had it easy on this front.

***

Second semester of 1L brought new frustrations (Civ Pro) and challenges (Pro Bono) and headaches (Blue Book), and again I worked as far ahead as I could in case something happened with my dad. And this time my manic pace paid off. Right before reading period, he took several falls and could not stand up again without help—EMS help, since my mom couldn’t lift him either. My heroic husband broke quarantine to stay with them for a weekend, and within a day my dad was admitted to the hospital after falling out of bed.

The next weeks were a muddle of medical decisions, new contacts, and unpredictable texts and calls as my dad’s care moved from the ER to hospital admission to a bed at a rehab facility. These also happened to be the weeks I was supposed to write two final papers, wrap up several shorter projects, and study for two exams. It all got done, with the help of an amazing team of siblings, spouse, and offspring—and compassionate professors who understood that if I vanished from the Zoom class, I was probably taking a call from the nutritionist or speech therapist, or giving permission for new medication.

Mercifully, my dad’s condition mostly stabilized and did not worsen until after I had completed my exams. He was diagnosed with COVID one week ago, and the family has watched from afar as strangers have coaxed him to eat, to face time with my mom or my sisters, to interact at all. Today I made the difficult call—the reason we arranged for POA in the first place—to forgo invasive measures and just provide my dad with palliative care, there in the COVID unit of a hospital in Maryland that I’ve never seen and probably will never visit.

As I write this, my dad is not expected to live out the day. I’ve made my peace with his passing already, over these last years of his declining cognition. But I’m regretful that I’ve done this law school venture too late to really share it with him.

***

In Property class we touched on the topic of eminent domain, and of cities reviving “blighted” areas, often to the detriment of long-term residents who have everything to lose from the arrangement. I never really understood what my dad did for a living—we were not a storytelling family, and consulting with cities for block grants was not a concept readily adaptable to a child’s understanding—but reading over the biographical sketch that he prepared while he was still cogent, I suddenly realized the connection. Ten years out of law school, my dad was (as he tells it) helping to write legislation intended to benefit, not harm, the residents of poorer urban neighborhoods. It’s all still hidden for me in the mists of my early years in the 70s, and I am left with so many questions.

But hey, now I’m at law school; I can research this, and finally begin to understand my own father and his contributions, for better or for worse. I may not have Power of Attorney much longer, but I have some powerful attorney tools and skills at my fingertips. And Susanna has developed an interest in city planning, and Caleb is intrigued by public policy—so between us, we may just get to know my dad after his passing better than any of us did in life.

***

You are welcome to follow Law School Late, such as is, on Twitter at @IpseDixitPaiges.

Law School Late 5.10.20

Telling the Nutshell Version

I’m writing a series of posts to explore the experience of starting a JD at age 51. While everyone’s path is unique, the phenomenon of aging is common to us all: all of us are all the ages we’ve ever been, and all of us adults are coping with bodily changes, past regrets, and all of those deeply ingrained patterns and fears. All of us are inhabited by innumerable stories of love and loss, blessings and disappointments, gathered during our journeys around the sun—and, at some level, at least, all of us wonder how much time we have left, and what’s worth doing with that time.

Maybe something in my own journey will resonate with you, so I’m writing it down. (This is #2 in the series.)

***

After five decades of this, it’s hard to nutshell my life. Is the proper starting point my childhood? undergrad? the job I had before my kids came along? the long, lonely years of staying at home to raise them, and scrambling for ways to keep my mind awake and sharp? Or is it the crystallization of all of the above into the certainty that I wanted to apply to law school?

I didn’t always know I wanted to be a lawyer. In fact, the thought that this role might suit me exactly didn’t even enter my mind until five years ago, when I was challenged by a friend to try. 25-year-old me was too focused on teaching first graders how to read . . . 35-year-old me was preoccupied with educating my own two rambunctious sprouts . . . 45-year-old me was carefully navigating the waters as a public speaker and female theologian in a setting that didn’t yet have much room for women in these roles.

But in 2015 a switch was flipped. I landed on the idea of teaching U.S. history to my firstborn by way of significant Supreme Court cases and issues of race in America, and I dove in deep to prepare our lessons. For the first time, I was reading the judicial opinions instead of just reading about them.

And I was hooked. My experience with theological writings had equipped me to recognize where schools of thought influenced interpretations of texts, and to appreciate the value of knowing the historical and cultural context of every writer and trier of fact. The many long, slow, isolated years that I had devoted to study—largely out of loneliness and boredom—had kept my mind nimble, and now I had found a new field to run in. And, in contrast to the impoverished opportunities for service that I’d found as a female theological writer and speaker, this field held the possibility of worthwhile work that paid.

Challenged by my friend to go the distance, I set my sights on a point in time as yet five years off, giving my youngest sprout time to finish high school with me first. A volunteer role set me in the local courthouse weekly, so I could get a taste of the legal world and see if I could imagine myself participating in it one day (I could!). And, most recently, a six-month stint as a legal assistant reintroduced me (after twenty years!) to the professional world, letting me see myself as something other than isolated, bookish, and maternal.

And now I am, quite literally, on the eve of the first day of law school. When we begin classes in this season of social distancing we won’t be present to one another bodily, so I suspect that the differences in our ages—often signaled subtly by the way we carry ourselves physically—will be muted, even on Zoom. There may not be enough data yet for others to know that I have five decades to my name. This will remain my secret superpower for a while.

I like that I’m starting this new chapter after so many years of doing other things. I like that I know and am comfortable with the long, slow curve of getting to know a person—or a field of study, or myself. I like that I understand about sudden bends in the road, and that loss and grief can mellow into treasure over time. I like that I have had enough time to find these things out.

I like that I am all the ages I have ever been, and that I can remember being 21, and 34, and 42. Maybe my having walked through those years already will give me the sensitivity to guess how some of my classmates are feeling right now.

And maybe the challenges and gifts that these next two JD years will bring to the nutshell version of my life will be just what I need for the chapter after this one. Carpe diem, while the days are ours.

Law School Late 04.11.20

What’s Age Got to Do with It?

One month from today, I will begin a two-year JD program at Drexel University’s Kline School of Law. I am 51.

A month ago, these two facts seemed a sufficient premise for this blog on starting law school late in life, on the chance that my experience could be generalized to others on an unconventional path to a law degree. Everything seemed on track. On March 9, in fact, I was even present in person at Drexel, meeting other accepted students and chatting with professors standing not two feet away, excited for the beginning of things on May 11 and trying to resist calculating the hours till I’d be back for my first class. I came and went by train that day, testing my commute and finding it satisfactory. I was prepared to fall in love with Philly.

Well, I’m still going to Drexel—figuratively speaking—and I’ll still be writing this blog about being a late starter. But as with everything else in our lives, both of these ventures are now going to be shaped and constrained by the ubiquitous coronavirus. I am thinking that I could not have picked a worse two years of my adulthood to pursue this degree if I’d planned it: starting on lockdown, and riding wave after wave of social distancing till I end (hopefully, best case scenario) vaccinated and graduated, maybe having met my classmates and profs face to face in the meantime, maybe having had the rich hands-on experiences that drew me to Drexel from the start. But “hands-on” right now is really not an appealing modifier.

Ever since I concocted the bright idea of attending law school after my daughter’s high school graduation, this question about my age has haunted me. What difference does it make, starting after 50? The math fascinates me: I am more than twice the age of most of next year’s 1Ls, who are as old as my son. I’ll have a decade or more on many of the men and women who will be my instructors. After the bar, I’ll have what, maybe fifteen, maybe twenty years to work if I’m lucky? I’ve wondered if this is really the best decision for our family financially. And wouldn’t a two-year program be the best thing for me, to get me through that door faster and into practice somewhere? Or should I take the typical three-year route, and savor the experience?

The math on my other age-related questions has been much more difficult to calculate. How will I relate to those half-my-age cohorts? How many social cues will I miss, how much cultural vocabulary do I have to catch up on, how many apps don’t I know that I should know? How will I come across to professors who are younger than me, or basically my age? In part anxious to be liked, in part anxious not to offend, I’ve tried to guess how much my age will really matter. It’s like trying to read a note taped to my back.

Of course, that was my pre-pandemic list of queries and worries. I would guess that for some of those things, like just plain getting along with people, my age won’t matter one bit, or might at worst provide some levity when I miss a cultural reference sometimes. What’s of more pressing concern right now relates more to my place among the generations than to my raw score of trips around the sun. Now I want to know things like: Will I be able to take my virtual classes at my mom’s house in another state if I have to go take care of my elderly parents because of the virus? While I’m here at home with my little family, how am I going to take classes and spend the four hours it takes to wash all the groceries down after my biweekly trip to the store? Will we have enough bandwidth, snacks, and goodwill for a WFH CPO, a college senior, a high school senior taking college classes, and a 1L?

So we’ll see how this goes, and what I find out. I’ll post some reflections here occasionally, starting with some background on how I got to this countdown to law school at age 51 in the first place. Each of our stories is unique, of course, but hopefully something of my experience will resonate with someone else on a similar journey. It’s always nice to know you’re not alone.

500 Hours In

This month marks a personal milestone for me: over the past two and a half years, I’ve put in 500 hours (at least!) as a volunteer legal advocate for plaintiffs in protection from abuse cases in our county. Since this is both worthwhile and unseen work (many of those who know me probably don’t even realize I do this), I wanted to sketch the experience for anyone who’s interested in learning more or maybe even pitching in.

In PA, victims of abuse by a family member, a member of their household, or a current or former intimate partner can seek a civil remedy called a Protection from Abuse order (or “PFA”). PFAs are granted to those plaintiffs who can convince a judge by “a preponderance of the evidence” (that is, just a little tipping of the scales in their favor) that they are in reasonable fear of bodily injury. Verbal and emotional abuse alone don’t typically amount to enough to tip the balance, although if the behavior is egregious enough—like direct threats, or relentless and alarming texts that amount to harassment—it may still qualify as abuse under the PA statute. Remedies under the PFA Act include the confiscation of firearms, eviction from the victim’s home, and a thorough no-contact order that can run from as little as a few days to as long as three years.*

People seek PFAs against their spouses, parents, children (usually adult children), casual intimate partners, cousins, longstanding significant others, “exes” that they thought they’d left behind in history, grandparents, etc. Parents can petition for protection on behalf of their minor children, and sometimes a plaintiff will include both herself and her children in her request. In recent years, the law has been clarified to expand past the default “domestic violence” scenario of husband abusing wife (or vice versa), and now teens in relationship with other teens, people in same-sex relationships, unmarried partners, and pretty much anyone being abused by a blood-relative have standing to petition for a PFA.

Plaintiffs come to court with vastly different motives and back-stories. On the less-than-worthy side of the spectrum, there are those who have hit upon the PFA as a means to retaliate against a partner (who has perhaps filed legitimately for protection earlier!), or as a way to evict an unwanted family member, or as a strategy for controlling custody of shared children.

Most plaintiffs that I talk to, though, have indeed experienced something scary, though to varying degrees. Taking the step of bringing the abuse to the courthouse is a significant one, because suddenly your business becomes public—and if a person is truly in a dangerous situation, the risk of angering the abuser is real. (Statistically, this is the most perilous time for an abuse victim, in fact; murders of abuse victims are often associated with the victim attempting to get community or legal help.) For this reason, some abuse victims endure years of harsh treatment before seeking a PFA, something that even the judges trying these cases may find difficult to comprehend.

I think it’s fair to say that the majority of cases that come through our courthouse fall between these two extremes. Sometimes there have been a couple incidents of violence, and the victim has been advised by the police to seek a protection order. Sometimes mental illness, a brain injury, addiction, or dementia will flare up in a family member and send them into a dangerous rage. Sometimes just one frightening outburst is enough to propel a victim to take a firm line, with the help of the law. Sometimes an abusive partner from the past shows up in a person’s present life in a sinister way, and the memory of what happened before leaves a plaintiff reasonably afraid it could happen again. Often plaintiffs express that it took a while for it to dawn on them that their significant other was not who he or she seemed to be when they started the relationship, and that the minor irritations that characterized that beginning were now full-grown into a frightening revelation of the person’s true nature.

Regardless of their starting point, nearly all plaintiffs—women, men, the elderly, teens, gay, straight, well-educated, refugees, mothers, fathers, anyone you can imagine—have no idea what to expect when they come to the courthouse on their initial hearing date. They’ve usually been given a temporary protection order by a judge in an ex parte hearing (without the defendant present), and now it’s a week later: the papers have been served on the alleged abuser, and it’s time for a courtroom confrontation. For many of them, the trauma of the abuse, the dread of facing their abuser in court, and the utter unfamiliarity of the courthouse with its many rules and formalities leave them in a state of high anxiety. And this is where advocates like me can come in handy.

A 1988 amendment to the PFA Act provides that plaintiffs in these cases have the right to be accompanied to any hearing by a domestic violence counselor or advocate. What this looks like in real life may vary from court to court and from year to year: advocates are neither attorneys nor court staff, and though our presence is a matter of law, the shape of our role is defined at the discretion of the particular court. So advocates working in other PA counties may have different duties than mine, even though we share similar legal limits (such as the fact that we cannot give legal advice, only legal information, which essentially translates to limiting my input to information that I could put in a flier and distribute to any plaintiff, to let them know what to expect in court that day).

As I construe my role, I am present in the courthouse to reduce the anxiety of unrepresented plaintiffs, to look out for their interests as best I can, and to contribute to the smooth running of the PFA court proceedings, a complex legal machine that involves bailiffs, attorneys, a judge, sheriff’s deputies, prothonotaries, court reporters, and court administrators, at the very least. My interactions with these plaintiffs have a certain sameness to them: I’m one of the friendly people who greets them when they arrive, shows them into the private waiting area, checks on their intentions for their hearing, and walks them through their options and what to expect in the courtroom. More often than not, I watch their anxiety drop down by a couple notches as I answer questions and calmly offer an overview of that day’s court session.

On the other hand, each individual plaintiff is unique, and that means that every single PFA court session has the potential to throw something new our way. In one day we may go from a slow morning with only a handful of brief conversations to a full-blown afternoon circus with a medically needy plaintiff, kids who need watching while mom’s in court, a defendant’s attorney looking to negotiate an agreement, somebody needing an interpreter, someone else who needs a phone, an incorrectly numbered docket, and a belligerent or mentally unstable defendant. Fortunately I work with a team of competent people, and between us we (almost) always manage to sort things out in the short time we have before the judge takes the bench.

I realize I’m helpless to change the course of these plaintiffs’ cases, or of their lives. I don’t usually know the facts behind their PFA petitions anyway, and I cannot speak up for them in the courtroom. But there’s nothing that beats the feeling when I walk someone to the elevator after their court appearance, and they take their leave of me saying something like, “I am so glad you were here—I couldn’t have gotten through this without your help.”

Most don’t think to say it, so I cherish it when it’s spoken. Because that’s really what I’m here for: to show up, dive in, stick with it—and make somebody’s tough day a little more bearable.

******************************************

* Information in this post is for educational purposes only, and may not still be accurate when you read it. For up-to-date information about PA’s PFA law and how to file for a protection order, visit the website of the PA Coalition Against Domestic Violence. Information for residents of other states can be found through the National Coalition Against Domestic Violence website.  If you need legal help, please consult a licensed attorney.

 

History of PFA Act (PA)

Original version:  1976

  • Abuse = Only bodily injury (or attempt) & fear by physical menace
  • Standing = only “spouses, persons living as spouses, parents and children, or consanguinity/affinity” – no provisions for not living together
  • Emergency custody provisions included since the beginning
  • Only lasted 12 months max
  • Never required medical or police reports as evidence
  • Plaintiff responsible for filing fees unless they could prove indigence.

Amended 1978 (“35 Pa.S.”): enhanced penalties

  • Standing = former/intimate partners not living together; same sex couples

Amended in 1988

  • Confidentiality
  • allowing DV Advocates in court
  • Abuse includes false imprisonment (6102(a)(3))
  • Court could order weapons relinquished temporarily if they were used/threatened to be used in an incident of violence

Amended in 1994

  • “physical menace” changed to “reasonable fear of bodily injury” (6102(a)(2))
  • State Police Dept required to maintain a statewide registry of PFA orders
  • Abuse includes stalking and other intimidating acts (6102(a)(5))
  • Significant changes to provide courts discretion to order supervised or no custodial access w/ finding of abuse
  • Plaintiff may not be held responsible for any prepaid filing fees; still responsible (until 2006) for costs if PFA petition is dismissed.
  • Can direct immediate return of child to plaintiff if child was forcibly/fraudulently removed
  • Court must consider risk of harm to child as well as to plaintiff in custody provisions
  • Defendant prohibited from acquiring weapons while the order is in effect

Amended in 2000

  • max length expanded from 12 to 18 months

Amended in 2006

  • Max length expanded to 3 years
  • Now specifies “10 business days” between filing and hearing
  • child custody – emergency provisions
  • Prohibition of fees or costs assessed against petitioner for filing
  • NO fees for petitioner for reconsideration or appealing court order
  • Factors that court must evaluate in determining whether certain weapons should be relinquished for the Temporary Order
  • Sweeping changes re. firearms:
    • Relinquish not only weapons used, but ANY weapons
    • Can be issued ex parte if certain conditions are met
    • Firearms can be turned over to a 3rd party with certain limitations

2017 Proposals by PCADV:

Empower courts to issue search and seizure orders for weapons as part of their PFA orders, if there is cause to believe the defendant has weapons and may use them against the victim.

Eliminate the family exemption from background checks for transfers of handguns.

Amend the current provision that allows defendants to place their weapons in the hands of third-party safe keepers. PCADV supports the recommendation that the third-party safekeeping option be abolished completely.

Enhance safety for victims by requiring that sheriffs, deputies or other officers serve protection orders.

Before setting bail, courts should use a risk assessment tool to evaluate potential danger to the victim.

Authorize courts to extend or reinstate an expired PFA order when an incarcerated defendant is about to be released and the court concludes that they pose a continuing threat to the victim.

Encourage local law enforcement to use active GPS monitoring of abusers to provide real-time notice to victims that their abusers are in their vicinity.

Clarify, through statute, the roles of dating violence, teen dating violence and same sex relationships in order to improve interpretation of the law. The Commission notes that these changes are not vital to closing any perceived gaps in the PFA Act.

PFA Case Law Holdings by Topic (PA)

History of PFA Act

PFA Case Law Holdings by Topic
(Links to my briefs of opinions.  Listed chronologically by topic.)

  • Agreement
    • Lee v. Carney [435 PA Super 405 (1994)]: If a consent order has been entered, and there is no fraud or mistake involved, then it is enforceable (even if some elements are odd ones, or burden the plaintiff).
    • Commonwealth of PA v. Nelson (PA Super 1997): A PFA order that is entered into by consent, with no admission or finding of guilt, is still enforceable.
  • Collateral Consequences
    • In re Estate of Cochran [1999 PA Super 242 (Pa. Super. Ct. 1999)]: Spouse’s eviction by PFA order for more than a year constitutes “willful and malicious desertion” which compels forfeiture of election to take spousal share of deceased spouse’s estate.
  • Confidentiality (Privilege)
  • Consanguinity & Affinity (Standing)
    • R.G. v. T.D. [448 PA Super 525 (1996)]: Being former intimate partners is enough for standing.
    • McCance v. McCance [2006 PA Super 263 (Pa. Super. Ct. 2006)]: Sister-in-law of defendant has standing to file for a PFA order because of “affinity.”  (Not defined in Act; use Black’s)
    • Custer v. Cochran [933 A.2d 1050, 2007 PA Super 290 (Pa. Super. Ct. 2007)]: As long as there’s consanguinity, PFA is appropriate, even if not residing in same home. (Domestic relationship not required – residency requirement removed from PFA in 1990.)
    • Scott v. Shay [2007 PA Super 192 (Pa. Super. Ct. 2007)]: Victim of sexual abuse does not have standing to file PFA petition if the relationship is not family/affinity/ intimate partner.
    • Slusser v. DeBoer [2009 PA Super 224 (Pa. Super. Ct. 2009)]: Parties’ shared consanguinity with a child is enough to grant standing for PFA order. (e.g., mother & grandfather)
  • Contempt
    • Dunkelberger v. PA Bd. Of Probation (132 PA Commw. 600 (1991)]: ICC is held to be criminal conviction and therefore a defendant may be recommitted as a parole violator if convicted for an ICC.
    • Commonwealth of PA v. Bortz (PA 2006): Prior ICC constitutes reason to upgrade charge (of stalking) to 3rd-degree felony.
  • Corporal Punishment
    • Miller OBO Walker v. Walker (PA Super 1995): PFA definition of abuse is broader than CPSL, so corporal punishment that does not rise to the level of criminal culpability can still be defined as abuse for PFA purposes.
    • Chronister v. Brenneman [1999 PA Super 284 (Pa. Super. Ct. 1999)]: The law permits parents to administer corporal punishment if it is temporarily painful and does not result in bodily injury.
    • Viruet ex rel. Velasquez v. Cancel [1999 PA Super 53 (Pa. Super. Ct. 1999)]: Corporal punishment should not leave bruises everywhere.
    • Ferri v. Ferri (PA Super 2004): A disciplinary action (like a slap) does not rise to the level of “abuse” if it does not cause bodily injury or the fear thereof.
    • T.W. OBO T.L. v. P.J.L. (PA Super 2008): Abuse is distinguished from corporal punishment by physical marks and reasonable fear.
  •  Criminality of Abuse
    • Boykin v. Brown [2005 PA Super 60 (Pa. Super. Ct. 2005)]: Abuse does not need to rise to the level of criminal acts (i.e., charges by police) to merit the awarding of a PFA order.
  • Custody
    • Rosenberg v. Rosenberg [350 Pa. Super. 268 (1986)]: PFA should not substitute for custody proceedings except for ancillary relief in the short term. (Not a PFA case: this was commentary in a footnote.)
    • Dye for McCoy v. McCoy [423 Pa. Super. 334 (1993)]: PFA should not substitute for custody proceedings in long term, but in the short term its custody protections take precedence.
    • Brooks-Gall v. Gall [2003 PA Super 511 (Pa. Super. Ct. 2003)]: The court may not sua sponte place children into state custody without providing parents due process.
    • Shandra v. Williams [2003 PA Super 85 (Pa. Super. Ct. 2003)]: Trial court should not modify pre-existing child custody order without hearing re. best interests of child.
    • Landis v. Landis [2005 PA Super 78 (Pa. Super. Ct. 2005)]: Court needs to consider all the evidence available in order to fashion custody arrangements in best interest of child.
    • Lawrence v. Bordner [2006 PA Super 246 (Pa. Super. Ct. 2006)]: in OBO case:  if emergency custody arrangement is in child’s best interest, include this in the PFA as temporary relief while custody proceedings are in the works.
  • Definition of Abuse
    • Viruet ex Rel. Velasquez v. Cancel [1999 PA Super 53 (Pa. Super. Ct. 1999)]:  CPSL is narrower than PFA in its definition of abuse:  PFA has five definitions, only one of which is the CPSL one.  PFA is appropriate even if abuse doesn’t rise to the level of “serious bodily injury,” because it is meant to prevent future injury.
  • Dismissal
    • Stamus v. Dutcavich [2007 PA Super 381 (Pa. Super. Ct. 2007)]: Trial court may not dismiss PFA unless petitioned by one or both parties.
  • Divorce Actions (contemporaneous)
    • Laczkowski v. Laczkowski [344 PA Super 154 (1985)]: “[the PFA] statute must be construed in pari materia with the Divorce Code, since they were enacted for different but not incompatible purposes.”  (IOW, can’t claim that one preempts the other.)
  • Double Jeopardy
    • Commonwealth of PA v. Zerphy (PA Sup 1984): ICC can be charged separately from criminal charges; not DJ if victim is not the protected party of PFA order.
    • Commonwealth of PA v. Decker (PA Sup 1995): Charges for same conduct trigger double jeopardy protections.  (e.g., simple assault being an element of both the ICC & criminal charge)
    • Commonwealth of PA v. Yerby (PA 1996): If one charge is a lesser offense included in the other, double jeopardy protections attach.  But if criminal charge was not included in ICC, there’s no DJ problem.
    • Leonard v. Smith [454 PA Super 51 (1996)]: ICC can follow criminal conviction w/o DJ if elements of each are distinct.  (e.g., assault/trespass – harassment/stalking)
  • Duration of PFA
    • Holderman v. Hagner [2000 PA Super 292 (Pa. Super. Ct. 2000)]: Expiration date should be measured from date of Final Order, not date of temporary order.
  • Evidence of Prior Bad Acts / Past Abuse
    • Snyder v. Snyder (PA Super 1993): At the hearing, a plaintiff is not limited to the specific allegations written in the petition.
    • Commonwealth of PA v. Barger (PA Sup 1999): The fact of prior bad acts established the reason why the victim offered no physical resistance and delayed reporting incidents.
    • Commonwealth of PA v. Jackson (PA Sup 2006): Evidence of prior bad acts admissible in order to establish “the chain or sequence of events which formed the history of the case, is part of the natural development of the case, and demonstrates Appellant’s motive, malice, intent, and ill-will toward victim.”
  • Evidentiary Hearings Mandatory
    • In re. Penny R. [353 PA Super 70 (1986)]: Court could not sua sponte vacate an earlier order allowing visitation without evidentiary hearing.  (but see Dissent.)
    • Burke v. Bauman [2002 PA Super 396 (Pa. Super. Ct. 2002)]: “within 10 days of filing a hearing SHALL be held” means this is mandatory.
    • Drew v. Drew [2005 PA Super 87 (Pa. Super. Ct. 2005)]: Evidentiary hearing mandated by PFA Act.
    • Lanza v Simconis [2006 PA Super 369 (Pa. Super. Ct. 2006)]: Evidentiary hearing mandated by PFA Act. Plaintiff must have opportunity for counsel, witnesses, cross-X.
  • Ex parte petition hearing
    • Lanza v Simconis[2006 PA Super 369 (Pa. Super. Ct. 2006)]: Not dealt with here, because appellant (plaintiff) did not preserve issue on appeal.  But suggestive that the petition hearing must be ex parte – see also 23 Pa. C.S.A. Section 6107(a)(1) (“shall”).
    • Ferko-Fox v. Fox [68 A.3d 917 (Pa. Super. Ct. 2013)]: The ex parte hearing ought to be conducted in person; in camera review of petition is not sufficient. (But see Ott, dissent) [Originated with Judge Reich, LCCCP]
  • Expungement
    • P.E.S. v K.L. [720 A.2d 487 (Pa. Super. Ct. 1998)]: For the sake of justice, defendant has right to have record expunged if temporary order was not granted and case was dismissed.
    • Carlacci v. Mazaleski [568 Pa. 471 (Pa. 2002)]: Defendant has a right to petition for expungement of PFA record if temporary PFA has been dismissed.
    • Commonwealth of PA v. Charnik (PA Sup 2006): A defendant is not entitled to seek expungement for a final PFA order after a hearing.
  • Extension of PFA
    • Commonwealth of PA v. Snell (PA Sup 1999): PFA Act does not require a separate civil trial to extend the PFA after an ICC conviction.
    • Kuhlmeier v. Kuhlmeier [2003 PA Super 56 (Pa. Super. Ct. 2003)]: Still possible, even when scheduling goddess has delayed next court date till after original order expired.
  • Fees
    • Krassnoski v. Rosey [454 PA Super. 78 (Pa. Super. Ct. 1996)]: Trial court may assess reasonable counsel fees on the unsuccessful defendant, even in cases where plaintiff has been represented free of charge.
    • Egelman v. Egelman [1999 PA Super 57 (Pa. Super. Ct. 1999)]: No financial restrictions or costs are to be placed on the Plaintiff, either upon filing or afterward (with the exception of costs assessed for petitioning in bad faith). Even if defendant prevails, attorney’s fees will not be assessed to the Plaintiff.
    • Viruet ex rel. Velasquez v. Cancel [1999 PA Super 53 (Pa. Super. Ct. 1999)]:  Court may not impose a prepaid bond requirement even if they feel a plaintiff has filed frivolously.  (In 2006, all fees will be waived for plaintiff.)
    • Raker v. Raker [2004 PA Super 107 (Pa. Super. Ct. 2004)]: Fees assessed against defendant after hearing.
  • Guardian ad litem
    • DeHaas v. DeHaas (PA Sup 1998): Guardian ad litem not required by PFA Act (this is a procedural requirement of CPSL)
  • Hearings
    • Commonwealth of PA v. Ortiz (PA Sup 2002): Statute says hearing should be SCHEDULED w/in 10 days of ICC charges, not that it should be HELD w/in 10 days.
  • Insufficient Evidence
    • D.H. v. B.O. [1999 PA Super 149 (Pa. Super. Ct. 1999)]: No actual threats of bodily injury means no PFA order.
    • Raker v. Raker [2004 PA Super 107 (Pa. Super. Ct. 2004)]: For Plaintiff to prevail in PFA hearing, need only establish preponderance of the evidence.
    • Hood-O’Hara v. Wills [2005 PA Super 145 (Pa. Super. Ct. 2005)]: Police reports and medical records are not necessary for establishing the need for a PFA.
    • Karch v. Karch [2005 PA Super 342 (Pa. Super. Ct. 2005)]: Medical/police report is not needed to establish credibility.
    • Scott v. Shay [2007 PA Super 192 (Pa. Super. Ct. 2007)]: If there is no “course of conduct” (pattern of actions) present, the evidence is insufficient.
  • Intent/Volition
    • Chronister v. Brenneman [1999 PA Super 284 (Pa. Super. Ct. 1999)]: In corporal punishment case, intent was an important component in deciding that this was not abuse.
    • Commonwealth v. Haigh (PA Sup 2005): Commonwealth must prove that defendant acted with “wrongful intent” in violating PFA for ICC conviction.
    • Commonwealth v. Brumbaugh (PA Sup 2007): Violation of the PFA was clearly volitional (knowingly made) – wrongful intent sealed the ICC charge (4th burden)
  • Jurisdiction
    • N.T. v. F.F. (PA Sup 2015): Minimal contact with the State of PA has to be established before a PFA can be sought against a nonresident of PA.
  • Jury Trials
    • Eichenlaub v. Eichenlaub [340 Pa. Super. 552 (Pa. Super. Ct. 1985)]: PFA law provides that defendant in an ICC case has no right to a jury trial. (Expediency; penalty not > 6 months incarc.)
    • Commonwealth of PA v. Burton (PA Sup 1993): general right to trial by jury (de novo) is superseded by the abolition of such a right in the PFA Act context.
  • Minor Defendant
    • Varner v. Holley [2004 PA Super 233 (Pa. Super. Ct. 2004)]: Under the PFA Act a minor defendant is not entitled to court-ordered counsel, but he is entitled to an interested adult to defend on his behalf.
  • Mutual Orders
    • Heard v. Heard (PA Sup 1992): lower court has no jurisdiction to issue sua sponte orders without the parties’ filing of petitions.  (At this time this was not specifically written into the Act:  now @ 6108(c).)
    • McKelvey v. McKelvey ([2001 PA Super 103 (Pa. Super. Ct. 2001)]: A sua sponte mutual protection order entered by the trial court is outside the bounds of the PFA Act.
  • Post-Sentence Motions
    • Commonwealth v. Moore (PA Sup 2009): Judicial economy is preferred when filing post-sentencing motion for PFA-ICCs (short sentence might expire before a regular motion gets through the red tape)
  • Reasonable Fear
    • Fonner v. Fonner [1999 PA Super 122 (Pa. Super. Ct. 1999)]:  Physical contact is not a prerequisite for a finding of abuse.  A victim need not wait for abuse to occur if there is reasonable fear that it will.
    • Raker v. Raker [2004 PA Super 107 (Pa. Super. Ct. 2004)]: Reasonable fear of bodily injury without actual physical injury occurring.
    • Thompson v. Thompson (PA Sup 2008): Examples of reasonable fear of bodily injury, even if these specific words were not used by witnesses.
    • T.K. v. A.Z. (PA Sup 2017): Plaintiff in PFA case need not use the word “fear” to describe experiences of anxiety for her physical safety.
  • Relief
    • Gerace v. Gerace [429 Pa. Super. 203 (Pa. Super. Ct. 1993)]: PFA Act provides for broad relief, including recovery of property and costs.
    • Snyder v. Snyder (PA Sup 1993): Remedies are at the trial court’s discretion, including exclusion of the abusive person from a jointly-owned residence.
  • Residence, Eviction
    • Commonwealth of PA v. Majeed (PA 1997): Under PFA order of eviction, a defendant relinquishes license or privilege to enter residence, even though he owned the property.
  • Self Defense
    • Commonwealth of PA v. Stonehouse (PA 1989): Expert testimony on battered woman syndrome should be presented to a jury in a murder trial.
    • Commonwealth of PA v. Miller (PA Sup 1993): Consideration of “battered woman syndrome” for plea of self-defense may be warranted (dicta)
  •  Service
    • Commonwealth v. Stallworth (PA 2001): If PFA has not yet been served by the time crime is committed, it cannot be incorporated into sentencing as “aggravating circumstances.”
    • Commonwealth v. Padilla (PA sup 2005): Verbal notice of service over the phone by police officer was sufficient to comply with the service requirements of due process.
  •  Stalking
    • R.G. v. T.D. (PA Sup 1996): Stalking as a course of deliberate conduct is enough to meet the definition of “abuse” if plaintiff is in fear for her safety.
    • Commonwealth v. Leach (PA Sup 1999): Subsequent acts are necessary to support a “course of conduct” called stalking; but each of the additional acts are, by definition, stalkings and can be the basis for an independent charge.
    • Commonwealth of PA v. Abed (PA Sup 2010): A conviction of stalking does not require that there be physical contact; threats and fear for personal safety are enough.
    • T.K. v. A.Z. (PA Sup 2017): Stalking is sufficient to meet definition of abuse.  (i.e., it’s not just “rude,” it’s “abusive.”)
  •  Verbal/Nonverbal Threats
    • R.G. v. T.D. (PA Sup 1996): Phone and email threats are sufficient to place a person in reasonable fear of imminent bodily injury.
    • Burke v. Bauman [2002 PA Super 396 (Pa. Super. Ct. 2002)]: Phone threats can be sufficient to place a person in reasonable fear of imminent bodily injury.
    • Karch v. Karch [2005 PA Super 342 (Pa. Super. Ct. 2005)]: Evidence of threat is more than sufficient for PFA.
    • Mescanti v. Mescanti [2008 PA Super 201 (Pa. Super. Ct. 2008)]: Nonverbal evidence (e.g., sound of guns being cocked) enough to establish reasonable fear.
  • Witnesses
    • Coda v. Coda [446 Pa. Super. 296 (Pa. Super. Ct. 1995)]: A continuance may be granted to subpoena a material witness if the witness’s testimony may affect the outcome of the hearing.
    • K.D. v J.D. (PA Sup 1997): Hearsay testimony (e.g., from CYS/therapist) of child witness cannot be admitted in a PFA hearing (different standards than child abuse hearing).