Blog - Spivak Law Firm

Improving Pennsylvania’s PFA Law

Posted on March 28 2013 by Todd Spivak and Rebecca Canterbury

A Protection From Abuse (PFA) order has devastating consequences for defendants. But people who file bogus PFAs often face no consequences whatsoever.

“Want somebody out of the house? File a bogus PFA!” Allegheny County Court of Common Pleas Judge Kim D. Eaton recently told Spivak Law Firm for an article published in The Pittsburgh Post-Gazette.

A PFA is a no-contact order that aims to restrict perpetrators of domestic violence from contacting their victims. A PFA can also evict an alleged abuser from his home, eliminate his constitutional right to own guns, and forbid him from seeing his kids.

Family law attorneys deride the PFA system as “poor man’s custody” because it allows people to obtain child custody orders while circumventing the formal custody process and associated court fees.

In Allegheny County, people who file PFAs are entitled to free lawyers who strengthen their PFA petitions and represent them at the PFA hearing.

Defendants do not get a free lawyer, and at least three-fourths of defendants in Allegheny County attend the PFA hearing pro se. They are not entitled to a public defender because a PFA is a civil order, though violating it can result in a six-month jail sentence.

Getting a PFA is easy. In 2011, judges in Allegheny County approved a whopping 97 percent of all initial PFA petitions, which are based solely on a plaintiff’s allegations. The defendant gets no opportunity to respond to the allegations until the PFA hearing about 10 days later.

During that 10-day span, defendants may be booted from their shared residence and restricted to having limited phone contact with their children. Defendants sometimes cannot return home even to get essentials such as toiletries or work uniforms.

The temporary PFA instantly becomes a permanent public record that is easily accessible for free online by friends, neighbors, co-workers, and employers. The stigma of the PFA may permanently damage the defendant’s reputation and relationships.

At a PFA hearing, the plaintiff’s lawyers will often ask the defendants directly if they are willing to accept a short-term PFA. Defendants may accept such an offer without appreciating the far-reaching consequences.

But people who file bogus PFAs often suffer zero consequences.

Pennsylvania law states that a person who files a PFA “in bad faith” must pay the defendant’s attorney fees. But proving bad faith is impossible in most cases because of the “he-said, she-said” nature of domestic violence. A person who files a bogus PFA may also be criminally prosecuted, but this rarely happens.

“The court’s attitude is: ‘You won, the PFA was dismissed, be happy,’” says family law attorney Christine Gale.

Here are five common-sense solutions for curbing abuses in Pennsylvania’s PFA law:

First, there should be a colloquy for PFA defendants to ensure that they understand the consequences of accepting a final PFA. It could be as simple as checking boxes on a standard form.

Second, courts should make it easier for allowing defendants to recover attorney fees when a PFA is withdrawn or dismissed.

Third, district attorneys should criminally prosecute what Judge Eaton calls “serial filers” of bogus PFAs.

Fourth, law schools and legal aid clinics should partner to train students to provide free representation for low-income PFA defendants.

Fifth, temporary PFAs should be removed from the public database when the PFA is later withdrawn or dismissed.

Such measures would strengthen an important law by limiting the damage caused by bogus PFAs.

To speak with an experienced PFA lawyer, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Is Divorce Bad for Children?

Posted on March 20 2013 by Todd Spivak and Rebecca Canterbury

Is divorce bad for children? “Yes, obviously,” may be your knee-jerk response, but a recent article in Scientific American points to studies showing that in the long run divorce adversely affects only a small percentage of kids.

There are many conflicting studies about the long-term consequences of divorce on children. According to University of California professor Judith Wallerstein, most adults who were children of divorce experience depression and relationship issues. But research by University of Virginia professor E. Mavis Hetherington shows that only 15 percent of adult children of divorce experience greater problems than those from stable families.

There seems to be a consensus, however, that many children experience short-term negative effects from divorce, such as anger and anxiety. According to Hetherington’s study, such effects typically diminish or disappear by the second year post-divorce.

At Spivak Law Firm, we believe strongly in protecting children through the divorce process. We handle many high-conflict divorces with issues of child custody, child support, and protection from abuse (PFA). To speak with a Pittsburgh family law attorney, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Understanding Child Custody in Pennsylvania

Posted on March 16 2013 by Todd Spivak and Rebecca Canterbury

When seeking custody of a child in Pennsylvania, it is important to understand the different types of custody available.

First, distinguish between “legal custody” and “physical custody.”

“Legal custody” refers to the right to make major decisions affecting the best interests of a minor child, including medical, religious, and educational decisions. Under Pennsylvania law, there is a presumption that “legal custody” is shared equally by both parents.

“Physical custody,” on the other hand, refers to the actual physical possession and control of a child. Custody disputes usually arise over issues of “physical custody,” as parents disagree about who gets the child and when.

There are several types of “physical custody.”

“Shared physical custody” refers to when parents divide time with the child equally – for example, on a week-on, week-off basis. It does not have to be 50/50; even a 60/40 time split based on overnights spent with the child is considered “shared physical custody.”

Another typical custody arrangement occurs where one parent has “primary physical custody” and the other parent has “partial physical custody.”

“Primary physical custody” refers to the right to have physical possession of a child for the majority of the time.

“Partial physical custody” means the right to take possession of a child away from the custodial person for a certain period of time.

For example, a parent who gets the child every other weekend and for a few hours during the week has “partial physical custody,” whereas the other parent has “primary physical custody.”

Finally, “visitation” means the right to visit a child, but does not include the right to remove the child from the custodial parent’s control. “Visitation” is frequently granted to grandparents or a parent who has been out of the child’s life for a substantial amount of time.

“Supervised visitation” refers to when a court orders that a supervisor be present during the visit. This usually occurs when there are issues of physical abuse or substance abuse that could endanger a child’s welfare. If no such issues exist, the arrangement is known as “unsupervised visitation.”

It is important to remember that child custody arrangements can always be modified so long as the parents mutually consent. To speak with an experienced child custody attorney, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Getting Ann’s PFA Dismissed

Posted on March 11 2013 by Todd Spivak and Rebecca Canterbury

For the first time, Ann went several days without seeing her child. The reason? Ann’s husband filed a Protection From Abuse (PFA) restraining order against her. The PFA booted Ann from her home and granted temporary custody of their child to her husband.

Ann’s husband said she hit him after discovering that he was having an affair. He claimed to be afraid of her.

In domestic violence cases, women typically seek protection from their boyfriends or husbands. But Spivak Law Firm has also successfully defended many women accused of abuse by their male partners.

At Ann’s PFA hearing in downtown Pittsburgh, her husband didn’t back down. He wanted to permanently evict Ann from their home and to get primary custody of their son. Both parties testified before a judge.

We aimed to show that Ann’s husband was abusing the PFA system to gain leverage in their imminent divorce and custody disputes. We argued that Ann’s actions did not rise to the level of a PFA because it was a single incident and there were no injuries.

The hearing lasted more than two hours. In the end, the judge dismissed the PFA.

“Thank you so much for everything,” Ann wrote us later that evening. “I couldn’t have done this without you. I am home with my son, I couldn’t be happier.”

Spivak Law Firm provides strong defense at PFA hearings throughout the Pittsburgh area in Allegheny County, Westmoreland County, Washington County, Beaver County, and Butler County. To speak with an experienced PFA defense attorney, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Lower Your Child Support Payments

Posted on March 7 2013 by Todd Spivak and Rebecca Canterbury

If you think you are paying too much in child support, do not be fooled into thinking that quitting your job will lower your support obligations.

Under Pennsylvania law, your child support obligation will not be lowered if you quit your job, assume a lower paying job, or even leave your job to pursue an education.

Courts will, however, adjust child support payments if you are receiving less income due to illness, lay-off, or being fired, “unless such a reduction in income was willfully undertaken in an attempt to avoid or reduce the support obligation.”

The issue is control. If you lose your job due to a reason outside your control, your support obligation may be lowered. But if you choose to quit, then your support obligation will not be affected.

The appropriate way to seek a reduction in child support payments is to hire an experienced family law attorney and file a Motion to Modify Support.

For more information about modifying your child support payment, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Understanding Pennsylvania DUI Law

Posted on March 1 2013 by Todd Spivak and Rebecca Canterbury

In Pennsylvania, there are two main ways that a person may be convicted for driving under the influence (DUI).

The first way is to consume “a sufficient amount of alcohol” to render the person incapable of safe driving. In such cases, the prosecutor must show a nexus, or link, between the bad driving and the consumption of alcohol.

The second and more common way is for the person’s blood alcohol content (BAC) to be at least .08 percent within two hours after driving. BAC is measured by dividing grams of alcohol by 100 milliliters of blood. Police use breath, blood, and urine tests to determine a driver’s BAC level.

Penalties for a DUI become more severe with increased BAC levels. A BAC of at least .08 percent but less than .10 percent is considered a “general impairment.” A BAC of at least .10 percent but less than .16 percent is considered a “high rate of alcohol.” A BAC of .16 percent or higher is considered the “highest rate of alcohol.”

To speak with a Pittsburgh DUI lawyer, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Westmoreland County PFA Withdrawn

Posted on February 15 2013 by Todd Spivak and Rebecca Canterbury

Joe has an anger problem. And he has a drinking problem. But right now the biggest problem he faces is a Protection From Abuse (PFA) order filed by his ex-girlfriend.

Joe’s ex says he threatened her. Joe denies the allegations.

On the morning of the PFA hearing, Joe and his ex sit in separate rooms. She wants a PFA lasting at least one year.

As Joe’s attorney, I ask to speak with the judge. The judge quickly reviews the allegations and appears ready to order a final PFA against Joe.

But I explain to the judge that the parties are not married, have no kids together, and are not living together because Joe has already signed a lease on a new apartment in Westmoreland County. A final PFA could cause Joe to lose his job, which subjects him to routine background checks.

Because there’s nothing tying the parties together, I argue, the judge should dismiss the PFA and let them move on with their lives.

The judge agrees. He instructs the plaintiff’s lawyer to withdraw the PFA. When I return to the waiting area and inform Joe, he exhales a sigh of relief.

“I wasn’t going to hire a lawyer,” Joe says. “I wasn’t even going to show up at the hearing.”

If Joe had not attended the hearing, he likely would have received a maximum three-year PFA. Instead, with the help of his attorney, the PFA was dropped.

For a free consultation with an experienced Westmoreland County PFA lawyer, call Spivak Law Firm today at (412) 344-4900 or toll free at (800) 545-9390.

Helping Ellen Get Her Kids Back

Posted on February 5 2013 by Todd Spivak and Rebecca Canterbury

When Ellen’s mother died, she became deeply depressed. She started drinking heavily for the first time in her life. Knowing that she was suddenly unfit to care for her two young sons, Ellen signed over custody rights to her ex-husband.

A year passed before Ellen stopped drinking and emerged from her depression. But by then she had lost everything – her home, her job, and her kids. She wanted her life back.

Ellen landed a job and let a three-bedroom apartment hoping to one day fill it with her two sons. Spivak Law Firm has spent the last year helping Ellen exercise her custody rights pro bono. It has been a long difficult journey, but this month we helped her get the child custody schedule of her dreams.

“I am so happy,” Ellen told us. “Finally, I get my kids back.”

To speak with an Allegheny County child custody lawyer, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

PFA DO’s and DON’Ts

Posted on February 2 2013 by Todd Spivak and Rebecca Canterbury

At Spivak Law Firm, we provide strong defense at PFA hearings for people accused of domestic violence. In most cases, we get the PFA dismissed.

Based in Pittsburgh, we routinely represent PFA defendants in Allegheny County, Westmoreland County, Beaver County, Butler County, and Washington County.

If you’ve been served with a PFA, protect your future by following this important list of PFA Do’s and Don’ts:

Do Hire an Experienced PFA Defense Lawyer: In many Pennsylvania counties, PFA plaintiffs are entitled to a free lawyer. PFA defendants should retain a lawyer to help level the playing field. PFA is a unique area of law that combines aspects of family law and criminal defense. As one of the few law firms in the greater Pittsburgh area that routinely handles both family and criminal cases, Spivak Law Firm is uniquely qualified to help. Our strong negotiation and courtroom skills help us achieve the best outcomes.

Don’t Blow Off the Hearing: Defendants who fail to appear at their PFA hearing risk getting a maximum three-year PFA. This can be devastating, as a PFA stays on the public docket and can haunt you like a criminal record. It comes up on a basic background check performed by employers, potentially costing you a job or promotion. At Spivak Law Firm, we understand that a PFA is a big deal. If you’ve been served with a PFA, we strongly encourage you to take it seriously by attending the PFA hearing.

Do Bring Evidence: If you’ve been served with a PFA, your hearing is likely just about a week away. That does not leave you or your attorney much time to prepare, so you need to start thinking about your defense immediately. Physical evidence commonly introduced at PFA hearings includes copies of medical records, phone records, emails, texts, and Facebook pages. At Spivak Law Firm, we help our clients prepare for their PFA hearing by collecting – by subpoena, if necessary – all records that help present the strongest possible defense.

Don’t Contact the Plaintiff: A PFA is a no-contact order. While it remains in effect, the defendant must abide by the PFA by having no contact whatsoever with the plaintiff. This includes not just physical contact but also contact by phone, text, email, fax, or regular mail. It also includes third-party contact. Thus, a PFA defendant cannot ask a friend or family member to contact the plaintiff about anything. For instance, having a friend ask the plaintiff to withdraw the PFA constitutes a violation of the court order because it is considered third-party contact. For more information on this issue, please visit our blog post “10 Tips for PFA Defendants to Avoid Arrest.”

Do Bring Witnesses: In domestic violence cases, the only eyewitnesses to the incident are often the parties themselves. Because of the “he-said, she-said” nature of domestic violence, cases are often determined based on credibility. A judge will hear testimony from both parties and make a decision largely based on who comes across as more believable. But when witnesses are present, it is important to bring them to the hearing. Because an eyewitness can be crucial in getting your PFA dropped, Spivak Law Firm works hard with clients to ensure that such witnesses appear at their PFA hearing.

Don’t Violate the PFA: Violating any provision of a PFA can result in a six-month jail sentence and a $1,000 fine. Although the main function of a PFA is to restrict contact between the parties, the court order may also contain other provisions that must be followed to avoid arrest. For instance, a PFA may restrict your ability to see your kids, possess weapons, or go to your home and other places frequented by the plaintiff. At Spivak Law Firm, we carefully review the PFA with our clients to ensure that they understand the restrictions imposed by the PFA and the severe consequences of violating them.

To speak with an experienced PFA lawyer, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.

Protecting Child Custody Rights

Posted on February 1 2013 by Todd Spivak and Rebecca Canterbury

Dormont-Brookline Patch, an online news outlet, has published our article about how Pennsylvania law protects the child custody rights of rape victims. The article originally appeared in the Pittsburgh Post-Gazette and has been reproduced in At Issue, a publication of the Pennsylvania Bar Association:

“At the age of 21, during her senior year in college, Shauna Prewitt was raped. She became pregnant, opted to keep the child and had a baby girl.

“Ms. Prewitt pressed criminal charges against her attacker. Her rapist responded by asserting legal custody rights over their child. Ms. Prewitt promptly withdrew her criminal complaint. Her attacker then followed suit by withdrawing his custody petition.

“‘When no law prohibits a rapist from exercising [child custody] rights,” says Ms. Prewitt, who is now an attorney and women’s rights advocate, “a woman may feel forced to bargain away her legal rights to a criminal trial in exchange for the rapist dropping the bid to have access to her child.’”

The entire article is reproduced here.

To speak with a Pittsburgh child custody attorney, call Spivak Law Firm at (412) 344-4900 or toll free at (800) 545-9390.