Is Domestic Violence an Issue in Your Case?
An angry or manipulative spouse or co-parent can sometimes try to gain the upper hand by raising domestic violence as an issue in your case. Abuse is a serious concern, and many survivors and children rely on protection from abuse orders for their safety. But when claims of harm are overblown or taken out of context, it can affect your divorce, your right to child custody, and your reputation. Domestic violence and divorce can change family law cases drastically.
What Happens When a Protection from Abuse Order is Entered Against You
Pennsylvania's protection from abuse (PFA) statute provides a fast and effective way for the victims of domestic violence to protect themselves and their children. However, the same provisions that allow a judge to enter a PFA order quickly to shield a victim from his or her abuser also make the law susceptible to misuse. Often a temporary PFA order is granted the same day it is filed -- without notice to the person whose rights it affects. While a hearing is generally scheduled within 10 business days, that initial order can put you on the defensive, making domestic violence an issue in your divorce or child custody case, even when the evidence is lacking.
At Berman & Associates, we have seen both sides of Pennsylvania’s protective order statute. Our family law attorneys help the victims of abuse obtain protection from abuse orders, but we also stand beside those wrongfully accused of abusive behavior. We know the effect domestic violence and divorce can have on your reputation and your rights. We will advocate on your behalf to make sure the judge has the full story.
Domestic Violence and Child Custody
A protection from abuse order can temporarily address child custody and visitation issues, as well as directing the alleged abuser to pay for child support, spousal support, and health insurance. However, it will not answer all of a family’s child custody concerns. Those will be addressed in a separate divorce or child custody proceeding.
Regardless of whether your spouse or co-parent obtains a protection from abuse order, cases of domestic violence and divorce can still be an issue in your child custody dispute. Pennsylvania judges decide custody disputes based on the “best interests of the child.” They are required to consider any incident of domestic violence within the last 5 years. If there is evidence to show the domestic violence occurred, the judge must find that the abusive parent no longer poses a risk to the child’s safety or well-being. This puts any parent accused of domestic violence on the defensive. You and your attorney will need develop a case showing:
- That the alleged domestic violence did not happen
- Even if it did, you do not pose a threat to your children now
After hearing the evidence on both sides, a judge can place limits on the family’s custody arrangement, including requiring supervised visitation with a third party adult. At Berman & Associates, we know how important it is to defend against claims of domestic abuse from the very start of your child custody case. We will investigate the matter and provide context to the court, advocating for your parental rights, and showing that you are not a danger to your children.
How to Challenge a Protective Order After it is Entered
There are two ways you can defend against a temporary Pennsylvania protection from abuse order entered against you:
- Appear at the scheduled hearing and show that there is not a preponderance of evidence to show domestic violence occurred, or is not likely to occur in the future
- File a motion to modify or terminate the protective order any time while it is in effect
If you have been wrongly accused of abuse, you can show that your spouse or co-parent filed the initial petition in bad faith, without fear of domestic violence, or for an improper purpose (like gaining the advantage in a custody case). If you do, you can ask the judge to order the petitioner to pay for your attorney fees. However, you will need to show more than a lack of evidence to get your attorney fees covered.
Other Ways Domestic Violence and Divorce Changes the Process
Allegations of domestic violence in divorce are important even if it is a divorce with no children. Pennsylvania is generally a no-fault divorce state. Spouses can consent to divorce after a 90-day waiting period, or one spouse can file for divorce after being separated for one year. However, if you have been convicted of (not just charged with) certain domestic violence crimes, the judge can act as though you have consented to the divorce to allow your spouse to end the marriage faster.
In addition, your spouse may claim that he or she is entitled to spousal support based on allegations of financial abuse. Rather than performing physical domestic violence, some abusers attempt to control their partners’ access to funds, making their spouses rely on them throughout the relationship. If your spouse can prove that you separated because of abuse and that you supported him or her throughout the marriage, the judge may order you to pay spousal support after the divorce is final.
Defending Against Domestic Violence Claims in Your Pennsylvania Divorce
At Berman & Associates, our experienced family law attorneys have stood on both sides of domestic violence divorce. We know how to protect survivors, and we know what to do if a spouse is using the state’s protective statutes improperly. We can help you defend against domestic violence claims and protect your right to custody of your children and a fair resolution to your marriage. We welcome you to contact us to speak with us about how we can help with your family law matter.