THE COURTS
Title 231--RULES
OF CIVIL PROCEDURE
PART I. GENERAL
[231 PA. CODE CH. 1900]
Amendments to the Rules of Civil Procedure Relating to Domestic Relations Matters; Recommendation 82
[36 Pa.B. 5561]
[Saturday, September 2, 2006]The Domestic Relations Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend the Rules of Civil Procedure relating to domestic relations matters as set forth herein. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
Notes and explanatory comments which appear with proposed amendments have been inserted by the committee for the convenience of those using the rules. Reports, notes and comments will not constitute part of the rules and will not be officially adopted or promulgated by the Supreme Court.
The committee solicits and welcomes comments and suggestions from all interested persons prior to submission of this proposal to the Supreme Court of Pennsylvania. Please submit written comments no later than Friday, October 27, 2006 directed to:
Patricia A. Miles, Esquire
Counsel, Domestic Relations Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055
FAX (717) 795-2175
E-mail: patricia.miles@pacourts.usBy the Domestic Relations
Procedural Rules CommitteeNANCY P. WALLITSCH, Esq.,
Chair
Annex A
TITLE 231. RULES OF CIVIL PROCEDURE
PART I. GENERAL
CHAPTER 1900. ACTIONS PURSUANT TO THE PROTECTION FROM ABUSE ACT Rule 1905. Forms for Use in PFA Actions. Notice and Hearing. Petition. Temporary Protection Order. Final Protection Order.
(a) The Notice of Hearing and Order required by Rule 1901.3 shall be substantially in the following form:
(Caption)
NOTICE OF HEARING AND ORDERYOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following papers, you must appear at the hearing scheduled herein. If you fail to do so, the case may proceed against you and a FINAL order may be entered against you granting the relief requested in the petition. In particular, you may be evicted from your residence, be prohibited from possessing any firearm, other weapon, ammunition or any firearm license, and lose other important rights, including custody of your children. Any protection order granted by a court may be considered in subsequent proceedings under Title 23 (Domestic Relations) of the Pennsylvania Consolidated Statutes, including child custody proceedings under Chapter 53 (relating to custody).
A hearing on the matter is scheduled for the _____ day of _____ , 20 ____ , at ____ .m., in Courtroom ____ at ______ Courthouse, ______ , Pennsylvania.
[You] If an order of protection has been entered, you MUST obey the order [that is attached] until it is modified or terminated by the court after notice and hearing. If you disobey this order, the police or sheriff may arrest you. Violation of this order may subject you to a charge of indirect criminal contempt which is punishable by a fine of up to $1,000[.00] and/or up to six months in jail under 23 Pa.C.S.A. § 6114. Violation may also subject you to prosecution and criminal penalties under the Pennsylvania Crimes Code. Under federal law, 18 U.S.C. § 2265, this order is enforceable anywhere in the United States, tribal lands, U. S. Territories and the Commonwealth of Puerto Rico. If you travel outside of the state and intentionally violate this order, you may be subject to federal criminal proceedings under the Violence Against Women Act, 18 U.S.C. §§ 2261--2262.
If this order directs you to relinquish any firearm, other weapon, ammunition or any firearm license to the sheriff, you may do so upon service of this order. As an alternative, you may relinquish any firearm, other weapon, or ammunition listed herein to a third party provided you and the third party first comply with all requirements to obtain a safekeeping permit. 23 Pa.C.S.A. § 6108.3. You must relinquish any firearm, other weapon, ammunition or any firearm license listed herein no later than 24 hours after service of the order. If, due to their current location, firearms, other weapons or ammunition cannot reasonably be retrieved within the time for relinquishment, you must provide an affidavit to the sheriff listing the firearms, other weapons or ammunition and their current location. Failure to timely relinquish any firearm, other weapon, ammunition or any firearm license shall result in a violation of this order and may result in criminal conviction under the Uniform Firearms Act, 18 Pa.C.S.A. § 6105.
NOTICE: Even if this order does not direct you to relinquish firearms, you may be subject to federal firearms prohibitions and federal criminal penalties under 18 U.S.C. § 922(g)(8).
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. YOU HAVE THE RIGHT TO HAVE A LAWYER REPRESENT YOU AT THE HEARING. THE COURT WILL NOT, HOWEVER, APPOINT A LAWYER FOR YOU. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. IF YOU CANNOT FIND A LAWYER, YOU MAY HAVE TO PROCEED WITHOUT ONE.
County Lawyer Referral Service
[insert Street Address]
[insert City, State, and ZIP]
[insert Phone Number](b) The petition in an action filed pursuant to the Act shall be substantially in the following form:
(Caption)
PETITION FOR PROTECTION FROM ABUSE1. Plaintiff's name is: __________
2. I am filing this [Petition] petition on behalf of: [ ] Myself and/or [ ] Another Person. If you checked ''myself,'' please answer all questions referring to yourself as ''Plaintiff.'' If you checked ''another person,'' please answer all questions referring to that person as the ''Plaintiff,'' and provide your address here, unless confidential:
If you checked ''Another Person,'' indicate your relationship with Plaintiff:
[ ] parent of minor Plaintiff(s)
[ ] applicant for appointment as guardian ad litem of minor Plaintiff(s)
[ ] adult household member with minor Plaintiff(s)
[ ] court appointed guardian of incompetent Plaintiff(s)3. Name(s) of ALL person(s), including Plaintiff and minor children, who seek protection from abuse: __________
__________4. [ ] Plaintiff's address is confidential or
[ ] Plaintiff's address is: __________
__________5. Defendant is believed to live at the following address: __________
__________Defendant's Social Security Number (if known) is: __________
Defendant's date of birth is: __________
Defendant's place of employment is: __________
[ ] Check here if you have reason to believe that Defendant is a licensed firearms dealer, is employed by a licensed firearms dealer or manufacturer, is employed as a writer, researcher or technician in the firearms or hunting industry or is [employed in a profession that requires Defendant to handle firearms or] required to carry a firearm as a condition of employment.
[ ] Check here if Defendant is 17 years old or younger.
6. Indicate the relationship between Plaintiff and Defendant.
[[ ] Spouse [ ] Current or former sexual/
intimate partner[ ] Other relationship by blood or marriage:
______
______[ ] Ex-spouse [ ] Parent/Child [ ] Persons who live or have lived like spouses [ ] Parents of the same children [ ] Brother/
Sister]CHECK ALL THAT APPLY:
[ ] spouse or former spouse of Defendant
[ ] parent of a common child with Defendant
[ ] current or former sexual or intimate partner with Defendant
[ ] child of Plaintiff
[ ] child of Defendant
[ ] family member related by blood (consanguinity) to Defendant
[ ] family member related by marriage or affinity to Defendant
[ ] sibling (person who shares biological parent hood) of Defendant
[ ] current or former cohabitant (person who lives with) Defendant7. Have Plaintiff and Defendant been involved in any of the following court actions?
[ ] Divorce [ ] Custody [ ] Support [ ] Protection
From AbuseIf you checked any of the above, briefly indicate when and where the case was filed and the court number, if known: __________
__________
__________8. Has Defendant been involved in any criminal court action? __________
If you answered Yes, is Defendant currently on probation? __________
9. Plaintiff and Defendant are the parents of the following minor child/ren:
Name(s) Age(s) who reside at (list address unless confidential) ______ ______ ______ ______ ______ ______ 10. If Plaintiff and Defendant are parents of any minor child/ren together, is there an existing court order regarding their custody? __________
If you answered ''Yes,'' describe the terms of the order (e.g., primary, shared, legal and/or physical custody): __________
__________
__________If you answered ''Yes,'' in what county and state was the order issued? __________
__________If you are now seeking an order of child custody as part of this petition, list the following information:
(a) Where has each child resided during the past five years?
Childs name Person(s) child lived with Address, unless confidential When ______ ______ ______ _____ ______ ______ ______ _____ ______ ______ ______ _____ ______ ______ ______ _____ (b) List any other persons who are known to have or claim a right to custody of each child listed above.
Name Address Basis of Claim ______ ______ ______ ______ ______ ______ ______ ______ ______ 11. The following other minor child/ren presently live with Plaintiff:
Name(s) Age(s) Plaintiffs relationship to children ______ ______ ______ ______ ______ ______ ______ ______ ______ 12. The facts of the most recent incident of abuse are as follows:
Approximate Date: __________
Approximate Time: __________
Place: __________
Describe in detail what happened, including any physical or sexual abuse, threats, injury, incidents of stalking, medical treatment sought, and/or calls to law enforcement (attach additional sheets of paper if necessary):
__________
__________
__________13. If Defendant has committed prior acts of abuse against Plaintiff or the minor child/ren, describe these prior incidents, including any threats, injuries, or incidents of stalking, and indicate approximately when such acts of abuse occurred (attach additional sheets of paper if necessary):
__________
__________
__________
__________
__________14. (a) Has Defendant used or threatened to use any firearms or other weapons against Plaintiff or the minor child/ren? If so, please describe the use or threatened use below and list on Attachment A to Petition, which is incorporated by reference into this petition, any firearms, other weapons or ammunition Defendant used or threatened to use against Plaintiff or the minor child/ren:
__________
__________
__________
__________(b) [To] Other than the firearms, other weapons or ammunition Defendant used or threatened to use against Petitioner or the minor child/ren, does Defendant, to the best of your knowledge or belief, [does Defendant] own or possess any additional firearm, other weapon, ammunition or any firearm license?
(c) If the answer to (b) above is ''yes,'' list any additional firearm, other weapon or ammunition owned by or in the possession of Defendant on Attachment A to Petition, which is incorporated by reference into this petition.
(d) Plaintiff (check one) [ ] DOES [ ] DOES NOT request that the court order Defendant to relinquish firearms, other weapons or ammunition listed on Attachment A to Petition. If Plaintiff does seek relinquishment, identify on Attachment A to Petition the firearms, other weapons and ammunition Plaintiff requests the court to order Defendant to relinquish.
15. Identify the sheriff, police department or law enforcement agency in the area in which Plaintiff lives that should be provided with a copy of the protection order:
__________
__________16. There is an immediate and present danger of further abuse from Defendant.
CHECK THE FOLLOWING BOXES ONLY IF THEY APPLY TO YOUR CASE AND PROVIDE THE REQUESTED INFORMATION
[ ] Plaintiff is asking the court to evict and exclude Defendant from the following residence:
__________
__________[ ] owned by (list owners, if known): __________
[ ] rented by (list all names, if known): __________
[ ] Defendant owes a duty of support to Plaintiff and/or the minor child/ren.
[ ] Plaintiff has suffered out-of-pocket financial losses as a result of the abuse described above. Those losses are: __________
__________
__________FOR THE REASONS SET FORTH ABOVE, I REQUEST THAT THE COURT ENTER A TEMPORARY ORDER, and AFTER HEARING, A FINAL ORDER THAT WOULD DO THE FOLLOWING (CHECK ALL FORMS OF RELIEF REQUESTED):
[ ] A. Restrain Defendant from abusing, threatening, harassing, or stalking Plaintiff and/or the minor child/ren in any place where Plaintiff and/or the child/ren may be found.
[ ] B. Evict/exclude Defendant from Plaintiff's residence and prohibit Defendant from attempting to enter any temporary or permanent residence of [the] Plaintiff.
[ ] C. Require Defendant to provide Plaintiff and/or the minor child/ren with other suitable housing.
[ ] D. Award Plaintiff temporary custody of the minor child/ren and place the following restrictions on contact between Defendant and the child/ren: __________
__________
__________[ ] E. Prohibit Defendant from having any contact with Plaintiff and/or the minor child/ren, either in person, by telephone, or in writing, personally or through third persons, including but not limited to any contact at Plaintiff's school, business, or place of employment, except as the court may find necessary with respect to partial custody and/or visitation with the minor child/ren.
[ ] F. Prohibit Defendant from having any contact with Plaintiff's relatives and Plaintiff's children listed in this petition, except as the court may find necessary with respect to partial custody and/or visitation with the minor child/ren. The following persons are Plaintiff's relatives or family and household members that Plaintiff believes require protection from stalking and harassment by Defendant.
Name Address (optional) Relationship to Plaintiff
__________
__________
__________[ ] G. Order Defendant to temporarily relinquish [any firearm] some or all of the firearms, other [weapon,] weapons and/or ammunition listed on Attachment A to Petition and any firearm license to the sheriff of this county and prohibit Defendant from transferring, acquiring or possessing any firearm[, other weapon, ammunition or any firearm license] for the duration of the order.
[ ] H. Order Defendant to pay temporary support for Plaintiff and/or the minor child/ren, including medical support and [ ] payment of the rent or mortgage on the residence.
[ ] I. Direct Defendant to pay Plaintiff for the reasonable financial losses suffered as the result of the abuse, to be determined at the hearing.
[ ] J. Order Defendant to pay the costs of this action, including filing and service fees.
[ ] K. Order Defendant to pay Plaintiff's reasonable attorney's fees.
[ ] L. Order the following additional relief, not listed above: __________
__________
__________
__________[ ] M. Grant such other relief as Plaintiff requests and/or the court deems appropriate.
[ ] N. Order the police, sheriff or other law enforcement agency to serve the Defendant with a copy of this petition, any order issued, and the order for hearing. Plaintiff will inform the designated authority of any addresses, other than Defendant's residence, where Defendant can be served.
VERIFICATION I verify that I am the petitioner as designated in the present action and that the facts and statements contained in the above petition are true and correct to the best of my knowledge. I understand that any false statements are made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities.
_________________
Signature
_________________
Date
(Caption)
[PETITIONER'S] ATTACHMENT A TO PETITION FIREARMS, OTHER WEAPONS AND AMMUNITION INVENTORY I, ______ , Plaintiff in this Protection From Abuse Action, hereby [request the court order Defendant to relinquish]
(a) aver that Defendant used or threatened to use the following firearms, other weapons[,] and ammunition[, and firearm licenses to the sheriff] against Plaintiff or the minor child/ren:
1.
2.
3.
4.
5.
[6.
7.
8.
9.
10.]
(b) aver that Defendant, to the best of my knowledge or belief, owns or possesses the following firearms, other weapons or ammunition not set forth in (a) above:
1.
2.
3.
4.
5.
(c) request that the court order Defendant to relinquish the following firearms, other weapons and ammunition:
1.
2.
3.
4.
5.
If more space is needed, more sheets may be attached to this document.
I believe the above items are located at: (List all relevant addresses where they may be found, including locations, if known. For example, ''front seat of blue truck,'' ''gun cabinet,'' ''bedroom closet,'' etc.):
Name ______ Date ______
Notice: This attachment will be withheld from public inspection in accordance with 23 Pa.C.S.A. § 6108 (a)(7)(v).
(c) The Temporary Order of Court entered pursuant to the Act shall be substantially in the following form:
(Caption)
TEMPORARY PROTECTION FROM ABUSE ORDER Defendant's Name: __________
Defendant's Date of Birth: __________
[Defendant's Social Security Number: ______ ]
Names of All Protected Persons, including Plaintiff and minor child/ren: __________
__________AND NOW, this ____ day of ______ , 20 ____ , upon consideration of the attached Petition for Protection From Abuse, the court hereby enters the following Temporary Order:
[ ] 1. Defendant shall not abuse, harass, stalk or threaten any of the above persons in any place where they might be found.
[ ] 2. Defendant is evicted and excluded from the residence at [NONCONFIDENTIAL ADDRESS FROM WHICH DEFENDANT IS EXCLUDED] or any other permanent or temporary residence where Plaintiff or any other person protected under this order may live. Plaintiff is granted exclusive possession of the residence. Defendant shall have no right or privilege to enter or be present on the premises of Plaintiff or any other person protected under this order.
[ ] 3. Except for such contact with the minor child/ren as may be permitted under Paragraph 5 of this order, Defendant is prohibited from having ANY CONTACT with Plaintiff, or any other [protected] person protected under this order, either directly or indirectly, at any location, including but not limited to any contact at Plaintiff's school, business, or place of employment. Defendant is specifically ordered to stay away from the following locations for the duration of this order: __________
__________
__________[ ] 4. Except for such contact with the minor child/ren as may be permitted under Paragraph 5 of this order, Defendant shall not contact Plaintiff, or any other person protected under this order, by telephone or by any other means, including through third persons.
[ ] 5. Pending the outcome of the final hearing in this matter, Plaintiff is awarded temporary custody of the following minor child/ren: __________
__________
__________
__________Until the final hearing, all contact between Defendant and the child/ren shall be limited to the following: __________
__________
__________
__________[ ] THIS ORDER SUPERSEDES ANY PRIOR ORDER RELATING TO CHILD CUSTODY.
The local law enforcement agency and the sheriff in the jurisdiction where the child/ren are located shall ensure that the child/ren are placed in the care and control of the Plaintiff in accordance with the terms of this [Order] order.
[ ] 6. [Defendant is prohibited from possessing, transferring or acquiring any firearms for the duration of this order.] FIREARMS, OTHER WEAPONS AND AMMUNITION RESTRICTIONS
Check all that apply:
[ ] Defendant is prohibited from possessing, transferring or acquiring any firearms for the duration of this order.
[ ] Defendant shall relinquish to the sheriff [all firearms and] the following firearms licenses owned or possessed by Defendant[.]: __________
__________[ ] Defendant is directed to relinquish to the sheriff any firearm, other weapon or ammunition listed in [Petitioner's] Attachment A[, and any firearms license Defendant may possess] to Temporary Order, which is incorporated by reference herein.
Defendant may relinquish any firearms, other weapons or ammunition to the sheriff. As an alternative, Defendant may relinquish firearms, other weapons and ammunition to a third party provided Defendant and third party first comply with all the requirements to obtain a safekeeping permit. Defendant must relinquish any firearm, other weapon, ammunition or [firearms] firearm license ordered to be relinquished no later than 24 hours after service of this order. If, due to their current location, firearms, other weapons or ammunition cannot reasonably be retrieved within the time for relinquishment, Defendant shall provide to the sheriff an affidavit listing the firearms, other weapons or ammunition and their current location. Failure to timely relinquish any firearm, other weapon, ammunition or any firearm license shall result in a violation of this order and may result in criminal conviction under the Uniform Firearms Act, 18 Pa.C.S.A. § 6105.
[ ] 7. The following additional relief is granted:
__________
__________
__________
__________
__________
__________[ ] Defendant is prohibited from stalking, as defined in 18 Pa.C.S.A. § 2709.1, or harassing, as defined in 18 Pa.C.S.A. § 2709, the following family and household members of Plaintiff:
Name Address (optional) Relationship to Plaintiff
__________
__________
__________[ ] Other relief:
__________
__________
__________[ ] 8. A certified copy of this order shall be provided to the sheriff or police department where Plaintiff resides and any other agency specified hereafter: [insert name of agency]
[ ] 9. THIS ORDER SUPERSEDES ANY PRIOR PROTECTION FROM ABUSE ORDER OBTAINED BY THE SAME PLAINTIFF AGAINST THE SAME DEFENDANT.
[ ] 10. THIS ORDER APPLIES IMMEDIATELY TO DEFENDANT AND SHALL REMAIN IN EFFECT UNTIL [insert expiration date] OR UNTIL OTHERWISE MODIFIED OR TERMINATED BY THIS COURT AFTER NOTICE AND HEARING.
NOTICE TO THE DEFENDANT Defendant is hereby notified that violation of this order may result in arrest for indirect criminal contempt, which is punishable by a fine of up to $1,000[.00] and/or up to six months in jail. 23 Pa.C.S.A. § 6114. Consent of Plaintiff to Defendant's return to the residence shall not invalidate this order, which can only be changed or modified through the filing of appropriate court papers for that purpose. 23 Pa.C.S.A. § [6113] 6108(g). If Defendant is required to relinquish any firearms, other weapons or ammunition or any [firearms] firearm license, those items must be relinquished to the sheriff within 24 hours of the service of this order. As an alternative, Defendant may relinquish any firearm, other weapon or ammunition listed herein to a third party provided Defendant and the third party first comply with all requirements to obtain a safekeeping permit. If, due to their current location, firearms, other weapons or ammunition cannot reasonably be retrieved within the time for relinquishment, Defendant shall provide an affidavit to the sheriff listing the firearms, other weapons or ammunition and their current location. Defendant is further notified that violation of this [Order] order may subject him/her to state charges and penalties under the Pennsylvania Crimes Code and to federal charges and penalties under the Violence Against Women Act, 18 U.S.C. §§ 2261--2262.
NOTICE TO SHERIFF, POLICE AND LAW ENFORCEMENT OFFICIALS This order shall be enforced by the police department or sheriff who has jurisdiction over Plaintiff's residence OR any location where a violation of this order occurs OR where Defendant may be located. If Defendant violates Paragraphs 1 through 6 of this order, Defendant shall be arrested on the charge of indirect criminal contempt. An arrest for violation of this order may be made without warrant, based solely on probable cause, whether or not the violation is committed in the presence of a police officer or sheriff.
Subsequent to an arrest, the law enforcement officer or sheriff shall seize all firearms, other weapons and ammunition in Defendant's possession which were used or threatened to be used during the violation of the protection order or during prior incidents of abuse and any other firearms in Defendant's possession. Any firearm, other weapon, ammunition or any firearm license must be delivered to the sheriff's office of the county which issued this order, which office shall maintain possession of the firearms, other weapons and ammunition until further order of this court, unless the weapon/s are evidence of a crime, in which case, they shall remain with the law enforcement agency whose officer or sheriff made the arrest.
BY THE COURT:
_________________ __________
Judge Date
(Caption)
ATTACHMENT A TO TEMPORARY ORDER FIREARMS, OTHER WEAPONS, AMMUNITION AND FIREARM LICENSES INVENTORY It is hereby ordered that Defendant relinquish the following firearms, other weapons, ammunition, and firearm licenses to the sheriff:
Firearm / Other Weapon / Location
Ammunition / License1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
BY THE COURT
Judge ______ Date __________
Notice: This attachment will be withheld from public inspection in accordance with 23 Pa.C.S.A. § 6108(a)(7)(v).
(d) The form of the Affidavit of Service in a Protection From Abuse matter shall be substantially in the following form:
(Caption)
AFFIDAVIT OF SERVICE I, ______ , the undersigned, hereby state that I served a copy of the Notice of Hearing and Order, Petition and Temporary Order in the above-captioned action upon Defendant by handing the papers to ______ at the following address:
__________
______ on the _____ day of ______ , 20 ____ , at approximately ____ o'clock __ .m.I verify that the statements made in this Affidavit are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities.
(Signature) __________
(Title) __________
(Address) __________
(Date) __________
THIS FORM MUST BE COMPLETED AND SIGNED BY THE PERSON WHO SERVES THE DEFENDANT WITH THE NOTICE OF HEARING AND ORDER, PETITION AND TEMPORARY ORDER. IT MUST BE FILED WITH THE PROTHONOTARY OR BROUGHT TO THE COURT ON THE HEARING DATE.
(e) The Final Order of Court entered pursuant to the Act shall be substantially in the following form:
(Caption)
FINAL ORDER OF COURT This order is entered (check one) [ ] by agreement without admission [ ] after a hearing and decision by the court [ ] by default. Without regard as to how the order was entered, this is a final order of court subject to full enforcement pursuant to the Protection From Abuse Act.
Defendant's Name: __________
Defendant's Date of Birth: __________
Defendant's Social Security Number: __________
Names and Dates of Birth of All Protected Persons, including Plaintiff and minor children:
Names Dates of Birth ______ _________________ ______ _________________ ______ _________________ CHECK ALL THAT APPLY:
Plaintiff or Protected Person(s) is/are:
[ ] spouse or former spouse of Defendant
[ ] parent of a common child with Defendant
[ ] current or former sexual or intimate partner with Defendant
[ ] child of Plaintiff
[ ] child of Defendant
[ ] family member related by blood (consanguinity) to Defendant
[ ] family member related by marriage or affinity to Defendant
[ ] sibling (person who shares biological parenthood) of Defendant
[ ] current or former cohabitant (person who lives with) DefendantDefendant was served in accordance with Pa.R.C.P. 1930.4 and provided notice of the time, date and location of the hearing scheduled in this matter.
AND NOW, this _____ day of _____ , 20 ____ , the court having jurisdiction over the parties and the subject-matter, it is ORDERED, ADJUDGED AND DECREED as follows:
Note: Space is provided to allow for 1) the court's general findings of abuse; 2) inclusion of the terms under which the order was entered (e.g., that the order was entered with the consent of the parties, or that the defendant, though properly served, failed to appear for the hearing, or the reasons why the plaintiff's request for a final PFA order was denied); and/or 3) information that may be helpful to law enforcement (e.g. whether a firearm or other weapon was involved in the incident of abuse and/or whether the defendant is believed to be armed and dangerous).
[ ] Plaintiff's request for a final protection order is denied.
OR
[ ] Plaintiff's request for a final protection order is granted.
[ ] 1. Defendant shall not abuse, stalk, harass, threaten or attempt to use physical force that would reasonably be expected to cause bodily injury to Plaintiff or any other protected person in any place where they might be found.
[ ] 2. Defendant is completely evicted and excluded from the residence at [NONCONFIDENTIAL ADDRESS FROM WHICH DEFENDANT IS EXCLUDED] or any other residence where Plaintiff or any other person protected under this order may live. Exclusive possession of the residence is granted to Plaintiff. Defendant shall have no right or privilege to enter or be present on the premises of Plaintiff or any other person protected under this order.
[ ] On [insert date and time], Defendant may enter the residence to retrieve his/her clothing and other personal effects, provided that Defendant is in the company of a law enforcement officer or sheriff when such retrieval is made and [insert any other conditions] __________
__________
__________[ ] 3. Except as provided in paragraph 5 of this order, Defendant is prohibited from having ANY CONTACT with Plaintiff, either directly or indirectly, or any other person protected under this order, at any location, including but not limited to any contact at Plaintiff's school, business, or place of employment. Defendant is specifically ordered to stay away from the following locations for the duration of this order: __________
__________
__________[ ] 4. Except as provided in paragraph 5 of this order, Defendant shall not contact Plaintiff, either directly or indirectly, or any other person protected under this order, by telephone or by any other means, including through third persons.
[ ] 5. [Custody] Temporary custody of the minor children, [NAMES OF THE CHILDREN SUBJECT TO THE PROVISION OF THIS PARAGRAPH] shall be as follows: [STATE TO WHOM PRIMARY PHYSICAL CUSTODY IS AWARDED; STATE TERMS OF PARTIAL CUSTODY OR VISITATION, IF ANY.]
__________
__________
__________[ ] THIS ORDER SUPERSEDES ANY PRIOR ORDER RELATING TO CUSTODY.
[ ] Custody petition is pending
[ ] A hearing is scheduled for ______ (date, time and location)__________
__________[ ] 6. [Defendant is prohibited from possessing, transferring or acquiring any firearms for the duration of this order.] FIREARMS, OTHER WEAPONS AND AMMUNITION RESTRICTIONS
Check all that apply:
[ ] Defendant is prohibited from possessing, transferring or acquiring any firearms for the duration of this order.
[ ] Defendant shall relinquish to the sheriff [all firearms and] the following firearms licenses owned or possessed by Defendant[.] : __________
[ ] Defendant is directed to relinquish to the sheriff any firearm, other weapon or ammunition listed in [Petitioner's] Attachment A[,and any firearms license Defendant may possess] to Final Order, which is incorporated by reference herein.
Defendant may relinquish any firearms, other weapons or ammunition to the sheriff. As an alternative, Defendant may either relinquish firearms, other weapons and ammunition to a third party provided Defendant and third party first comply with all the requirements to obtain a safekeeping permit, or relinquish firearms, other weapons and ammunition to a licensed firearms dealer for consignment sale, lawful transfer or safekeeping pursuant to 23 Pa.C.S.A. § 6108.2(e). Defendant must relinquish any firearm, other weapon, ammunition or firearms license ordered to be relinquished no later than 24 hours after service of this order. Failure to timely relinquish any firearm, other weapon, ammunition or any firearm license shall result in a violation of this order and may result in criminal conviction under the Uniform Firearms Act, 18 Pa.C.S.A. § 6105.
[ ] 7. Any firearm delivered to the sheriff or transferred to a licensed firearm dealer, or a qualified third party who satisfies the procedural and substantive requirements to obtain a safekeeping permit issued under 23 Pa.C.S.A. § 6108.3 pursuant to this order or the temporary order shall not be returned to Defendant until further order of court or as otherwise provided by law.
[ ] 8. The following additional relief is granted as authorized by § 6108 of the Act:
__________
__________
__________
__________
__________
__________[ ] Defendant is prohibited from stalking, as defined in 18 Pa.C.S. § 2709.1, or harassing, as defined in 18 Pa.C.S. § 2709, the following family and household members of Plaintiff:
Name Address (optional) Relationship to Plaintiff
__________
__________
__________[ ] Other relief:
__________
__________
__________[ ] 9. Defendant is directed to pay temporary support for: [INSERT THE NAMES OF THE PERSONS FOR WHOM SUPPORT IS TO BE PAID] as follows: [INSERT AMOUNT, FREQUENCY AND OTHER TERMS AND CONDITIONS OF THE SUPPORT ORDER]. This order for support shall remain in effect until a final support order is entered by this court. However, this order shall lapse automatically if Plaintiff does not file a complaint for support with the Domestic Relations Section of the court within two weeks of the date of this order. The amount of this temporary order does not necessarily reflect Defendant's correct support obligation, which shall be determined in accordance with the guidelines at the support hearing. Any adjustments in the final amount of support shall be credited, retroactive to this date, to the appropriate party.
10. [ ] (a) The costs of this action are imposed on Defendant.
[ ] (b) Because this order followed a contested proceeding, or a hearing at which Defendant was not present, despite being served with a copy of the petition and notice of the date, time and place of the hearing, Defendant is ordered to pay an additional $100 surcharge to the court, which shall be distributed in the manner set forth in 23 Pa.C.S.A. § 6106(d).
[ ] (c) Upon a showing of good cause or a finding that Defendant is unable to pay, the costs of this action are waived.
[ ] 11. Defendant shall pay $ ______ to Plaintiff by (insert date) as compensation for Plaintiff's out-of-pocket losses, which are as follows: __________
__________An installment scheduled is ordered as follows: __________
__________OR
[ ] Plaintiff is granted leave to present a petition, with appropriate notice to Defendant, to [INSERT THE NAME OF THE JUDGE OR COURT TO WHICH THE PETITION SHOULD BE PRESENTED] requesting recovery of out-of-pocket losses. The petition shall include an exhibit itemizing all claimed out-of-pocket losses, copies of all bills and estimates of repair, and an order scheduling a hearing. No fee shall be required by the prothonotary's office for the filing of this petition.
[ ] 12. THIS ORDER SUPERCEDES ANY PRIOR PROTECTION FROM ABUSE ORDER OBTAINED BY THE SAME PLAINTIFF AGAINST THE SAME DEFENDANT.
13. All provisions of this order shall expire:
Check one
[ ] in [INSERT DAYS, MONTHS OR YEARS] on [INSERT EXPIRATION DATE]
[ ] in three years, on [INSERT EXPIRATION DATE].
NOTICE TO THE DEFENDANT VIOLATION OF THIS ORDER MAY RESULT IN YOUR ARREST ON THE CHARGE OF INDIRECT CRIMINAL CONTEMPT WHICH IS PUNISHABLE BY A FINE OF UP TO $1,000 AND/OR A JAIL SENTENCE OF UP TO SIX MONTHS. 23 PA.C.S.A. § 6114. VIOLATION MAY ALSO SUBJECT YOU TO PROSECUTION AND CRIMINAL PENALTIES UNDER THE PENNSYLVANIA CRIMES CODE. A VIOLATION OF THIS ORDER MAY RESULT IN THE REVOCATION OF THE SAFEKEEPING PERMIT, WHICH WILL REQUIRE THE IMMEDIATE RELINQUISHMENT OF YOUR FIREARMS, OTHER WEAPONS AND AMMUNITION TO THE SHERIFF. PLAINTIFF'S CONSENT TO CONTACT BY DEFENDANT SHALL NOT INVALIDATE THIS ORDER WHICH CAN ONLY BE MODIFIED BY FURTHER ORDER OF COURT. 23 Pa.C.S.A. § 6108(g).
THIS ORDER IS ENFORCEABLE IN ALL FIFTY (50) STATES, THE DISTRICT OF COLUMBIA, TRIBAL LANDS, U.S. TERRITORIES AND THE COMMONWEALTH OF PUERTO RICO UNDER THE VIOLENCE AGAINST WOMEN ACT, 18 U.S.C. § 2265. IF YOU TRAVEL OUTSIDE OF THE STATE AND INTENTIONALLY VIOLATE THIS ORDER, YOU MAY BE SUBJECT TO FEDERAL CRIMINAL PROCEEDINGS UNDER THAT ACT. 18 U.S.C. §§ 2261--2262. IF YOU POSSESS A FIREARM OR ANY AMMUNITION WHILE THIS ORDER IS IN EFFECT, YOU MAY BE CHARGED WITH A FEDERAL OFFENSE EVEN IF THIS PENNSYLVANIA ORDER DOES NOT EXPRESSLY PROHIBIT YOU FROM POSSESSING FIREARMS OR AMMUNITION. 18 U.S.C. § 922(g)(8).
NOTICE TO SHERIFF, POLICE AND LAW ENFORCEMENT OFFICIALS The police and sheriff who have jurisdiction over Plaintiff's residence OR any location where a violation of this order occurs OR where Defendant may be located, shall enforce this order. The court shall have jurisdiction over any indirect criminal contempt proceeding, either in the county where the violation occurred or where this protective order was entered. An arrest for violation of paragraphs 1 through 7 of this order may be without warrant, based solely on probable cause, whether or not the violation is committed in the presence of the police or any sheriff. 23 Pa.C.S.A. § 6113.
Subsequent to an arrest, and without the necessity of a warrant, the police officer or sheriff shall seize all firearms, other weapons and ammunition in Defendant's possession that were used or threatened to be used during the violation of the protection order or during prior incidents of abuse and any other firearms in Defendant's possession. The [insert the appropriate name or title] shall maintain possession of the firearms, other weapons or ammunition until further order of this court.
When Defendant is placed under arrest for violation of the order, Defendant shall be taken to the appropriate authority or authorities before whom Defendant is to be arraigned. A ''Complaint for Indirect Criminal Contempt'' shall then be completed and signed by the police officer, sheriff OR Plaintiff. Plaintiff's presence and signature are not required to file the complaint.
If sufficient grounds for violation of this order are alleged, Defendant shall be arraigned, bond set, if appropriate and both parties given notice of the date of hearing.
BY THE COURT:
Judge ______ Date__________
If entered pursuant to the consent of plaintiff and defendant:
______ __________ (Plaintiff's signature) (Defendant's signature)
(Caption)
ATTACHMENT A TO FINAL ORDER FIREARMS, OTHER WEAPONS, AMMUNITION AND FIREARM LICENSES INVENTORY It is hereby ordered that Defendant relinquish the following firearms, other weapons, ammunition, and firearm licenses to the sheriff:
Firearm / Other Weapon / Location
Ammunition / License1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
BY THE COURT
Judge _________________ Date __________
Notice: This attachment will be withheld from public inspection in accordance with 23 Pa.C.S.A. § 6108(a)(7)(v).
* * * * *
Explanatory Comment--2006 The Notice to Defend in subdivision (a) was amended to include three notice requirements of the 2005 Protection From Abuse Act amendments, Act 66 of 2005. 23 Pa.C.S.A. § 6107 (a). The amendments provide that sheriffs may arrest defendants for violations of protective orders. The notice also advises the defendant that if firearms, other weapons or ammunition cannot reasonable be retrieved within the required time, the defendant must provide the sheriff with an affidavit listing the firearms, other weapons and ammunition and their current location. Pa.C.S.A. § 6108(a)(7)(i)(B). In addition, defendants have the option to turn firearms, other weapons and ammunition over to a qualified third party instead of the sheriff, and federal firearms prohibitions and penalties are more clearly stated.
The 2005 amendments to the Protection From Abuse Act require several changes to the form petition at subdivision (b). The plaintiff is required to inform the court if the defendant works in a job that requires the handling of firearms. This provision was included to allow courts to exercise appropriate discretion when a defendant is exempt from federal firearm prohibitions and penalties. It also directs the court to ''make a reasonable effort to preserve the financial assets of the defendant's business while fulfilling the goals'' of the Protection From Abuse Act. 23 Pa.C.S.A. § 6108(a)(7.1). Federal law prohibits possession of firearms and penalizes defendants who possess them if they are subject to an order prohibiting abuse, stalking or harassment. However, certain law enforcement officials are exempt from this prohibition and penalty. Under 18 U.S.C. § 925(a)(1), a person performing an official duty on behalf of the federal, state or local law enforcement agency may possess a firearm as long as the officer is required to possess the firearm in his or her official capacity. The Bureau of Alcohol, Tobacco and Firearms requires the official possession of the firearm to be authorized by statute, regulation or official department policy. The new notice requirement is found in 23 Pa.C.S.A. § 6106 (a.2).
Paragraph 14 of the form petition was amended to address the manner in which the firearms and other weapons were used against the plaintiff or minor children and to remove the listing of firearms in the petition itself. The amended statute prohibits public access to any list or inventory of the defendant's firearms, other weapons or ammunition. Thus, a separate Attachment A is included at the end of the petition for purposes of listing the firearms, other weapons and ammunition at issue. This will allow the prothonotary to more easily redact the list from public access, while at the same time permitting the court, the parties and law enforcement agencies to enforce the order. 23 Pa.C.S.A. § 6108 (a)(7)(v). Section 6108(a)(7) of the Protection From Abuse Act provides for relinquishment of other weapons and ammunition only if they have been used or threatened to be used in an act of abuse. Paragraph 14 and Attachment A to Petition balance the court's need to be advised of firearms, other weapons and ammunition used or threatened to be used in an act of abuse or available to the defendant with the plaintiff's right to decline to seek relinquishment of some or all of those firearms, other weapons and ammunition.
The form petition also was amended to address the court's authority to order the defendant to relinquish any and all firearms[, other weapons and ammunition], whether they were used or threatened to be used in an act of abuse or not. Any one of several circumstances authorizes the court to grant this relief, including, but not limited to, abuse involving a firearm or weapon or an immediate and present danger of abuse. The amended statute provides the court with multiple examples of what may constitute proof of immediate and present danger for the purposes of ordering the relinquishment of any or all of the defendant's firearms. 23 Pa.C.S.A. § 6107(b)(3). Finally, the form addresses the court's authority to order Defendant to relinquish other weapons and ammunition which were used or threatened to be used in an act of abuse.
In subdivisions (c) and (e), paragraph three in the form temporary and final orders is amended to clarify that even indirect contact with a protected person may be prohibited. This clarification reflects the Pennsylvania Supreme Court's holding in Commonwealth v. Baker, 564 Pa. 192, 766 A.2d 328 (2001), that the order must be ''definite, clear, specific and leave no doubt or uncertainty in the mind of the person to whom it was addressed of the prohibited conduct.''
The 2005 amendments to the Protection From Abuse Act provide that the court may order the defendant to relinquish ammunition and firearm licenses, in addition to firearms and other weapons. 23 Pa.C.S.A. §§§ 6108(a)(7) and 7.1. These items were added to paragraph six of the temporary and final order forms, the notices to the defendant and the notices to the sheriff, police and law enforcement.
The amendments to paragraph six of the form orders also provide the court with [two options if firearms, weapons or ammunition are prohibited] discretion to place certain restrictions on firearms possession or to completely proscribe firearms possession. [The court may order only certain firearms, weapons and ammunition to be relinquished as listed by Plaintiff on Attachment A, or the court may order that all firearms, weapons and ammunition be relinquished.] The amended paragraphs and the notices to the defendant inform the parties that if the defendant is ordered to relinquish firearms, weapons or ammunition, they must be relinquished to the sheriff or, in the alternative, they may be relinquished to a third party who complies with the substantive and procedural requirements for a third party safekeeping permit. 23 Pa.C.S.A. §§§ 6107(a), 6108.3. Upon entry of a final order, the defendant may also relinquish firearms, other weapons or ammunition to a licensed firearms dealer. No matter which option Defendant chooses, if firearms and weapons are ordered to be relinquished, any firearm license [possessed] ordered to be relinquished must be relinquished to the sheriff. The aforementioned items may be relinquished at the time of service, but no later than 24 hours after service unless they cannot reasonably be retrieved due to their location. 23 Pa.C.S.A. § 6108 (a)(7)(i). The notice to the defendant in the final order was expanded to advise the defendant that violation of the order may result in the revocation of the third-party safekeeping permit. Paragraph seven of the final order form was amended to reflect 23 Pa.C.S.A. § 6108.1(a) and other statutory provisions concerning the return of firearms. [The process for return of firearms is within the discretion of the court in each judicial district.]
Paragraph ten of the final order form was amended to reflect the statute's prohibition against charging the plaintiff fees or costs related to filing, service, registration or appeal in any Protection From Abuse matter. A new subparagraph (b) in paragraph ten of the final order reflects the 2005 amendments to the Protection From Abuse Act which increased the surcharge a court may order a defendant to pay when an action is contested and directs the disbursement of the collected surcharges. 23 Pa.C.S.A. § 6106(d).
Paragraph fourteen of the final order form was amended to reflect the increased period of protection the court may grant. The maximum period of protection was increased from eighteen months to three years.
The amended notice to the sheriff, police and law enforcement in the final order clarifies that the defendant may be arrested anywhere a violation occurs, and that the court has jurisdiction to hear the issue of indirect criminal contempt either where the order was issued or where the violation occurred. With this amendment, jurisdiction for indirect criminal contempt is parallel to prosecution for stalking and harassment. 23 Pa.C.S.A. § 6114(a.1). The notice also makes it clear that a search and seizure of firearms may occur without a warrant when incident to arrest. 23 Pa.C.S.A. § 6113(b) and 6121.
Other amendments to the order forms reflect that the sheriff is authorized to arrest for violations of the order under the Protection From Abuse Act. 23 Pa.C.S.A. § 6113. The references to a protective order superseding provisions of a prior custody order were moved to paragraph five, which deals with custody, in both the temporary and final orders.
[Pa.B. Doc. No. 06-1719. Filed for public inspection September 1, 2006, 9:00 a.m.]
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