Ronald Wise-Stough v. Arlee Holmes; Ronald Stough v. Dustin Hans Sutton Nos. 2006-20608 and 2016-40062

Civil Action-Law-Family Law-Protection From Abuse-Custody-Corporal Punishment-Counsel Fees

Plaintiff Ronald Wise-Stough/Ronald Stough (“Father”), the father of the minor twelve (12) year old child in this case, filed a Petition for Emergency Custody against Defendant Arlee Holmes (“Mother”), the child’s mother, and a Protection From Abuse (“PFA”) Petition against Dustin Hans Sutton (“Step-father”), the child’s step-father, both of whom the child had lived throughout his life based upon an incident in which it was alleged that Step-father pushed the child against the wall after the hand of the child’s fifteen (15) month old sibling had been shut in a door by the child. The Court entered temporary Orders transferring legal and physical custody to Father based upon the same that contained no provisions for contact with the child by Mother. The Court thereafter consolidated the Petitions for hearing on the permanent Orders.

1. The purpose of the PFA Act is to protect victims of domestic violence with a primary goal of advancing prevention of physical and sexual abuse.

2. In cases where PFA and custody actions intersect, a PFA order may not impose more than an emergency custody order, as the PFA Act was enacted to provide immediate physical protection from physical abuse, not to replace other established proceedings for the determination of permanent custody of children.

3. The term “abuse” is defined by the PFA Act to include attempting to cause or intentionally, knowingly or recklessly causing bodily injury or serious bodily injury, placing another in reasonable fear of imminent serious bodily injury and physically or sexually abusing minor children. 23 Pa.C.S. § 6102.

4. Courts consistently have held that corporal punishment does not constitute abuse except in extreme circumstances. Parents may use corporal punishment to discipline their children as long as the force used is not designed or known to create a substantial risk of death, serious bodily injury, disfigurement, extreme pain, mental distress or gross degradation.

5. In light of the fact that Step-father, who has served as the child’s parental figure for five (5) years, was attempting to impart self-discipline to the child by requiring him to clean up after himself, the child in a reaction to the same slammed the door that pinched his brother’s hand and the child had bullied the younger brother in the past, the child in this case was not injured and the child denied having been choked by Step-father, Step-father’s action of shoving the child against the wall in an aggressive fashion to communicate that the child never could do that again because it seriously could have harmed his brother was not abuse. Rather, it was an understandable human reaction to the disturbing situation that confronted him.

6. At least some effort should be made by a parent to verify the child’s statements before reporting the same to authorities. This is especially so when history has called into question a child’s ability accurately to relay facts.

7. The PFA Petition in this case was not designed to protect the child from abuse. Rather, it was filed as an effort by Father as an estranged parent to gain leverage in a custody dispute with Mother.

8. In a situation where a PFA petition has not been undertaken to protect a child from abuse and is filed in an effort by a party to gain leverage in a custody dispute, the Court will entertain a request by the party against whom the petition has been filed for counsel fees pursuant to 42 Pa.C.S. § 2503.

L.C.C.C.P. Nos. 2006-20608 and 2016-40062, Opinion by Bradford H. Charles, Judge, June 16, 2016.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA FAMILY DIVISION

NO. 2006-20608

RONALD WISE-STOUGH, Plaintiff
v.

ARLEE HOLMES, Defendant

NO. 2016-40062

RONALD STOUGH, Plaintiff

v.

DUSTIN HANS SUTTON, Defendant

ORDER OF COURT

AND NOW, to wit, this 16th day of June, 2016, in accordance with the attached Opinion, the Order of this Court is as follows:

1. The Petition of Ronald Wise-Stough for relief under the Protection from Abuse Act is DENIED. All temporary orders entered in Docket 2016-40062 are vacated. If any costs exist, those costs are to be paid by the County of Lebanon.

2. Custody of the son of Ronald Wise-Stough (hereafter “FATHER”) and Arlee Holmes (hereafter “MOTHER”) shall be determined in Custody Court.

3. The temporary emergency order entered by this Court on April 12, 2016 is vacated.

4. Pursuant to the temporary order issued by this Court after hearing on May 27, 2016, FATHER’s periods of physical custody with his son are stayed until the weekend of June 18, 2016. Thereafter, the existing Custody Order entered on March 5, 2016 shall be followed.

BY THE COURT:

BRADFORD H. CHARLES, J.

APPEARANCES:

Gregory S. Hazlett, Esquire For Ronald Wise-Stough

Jennifer M. Merx, Esquire For Arlee Holmes

BUZGON DAVIS LAW OFFICES

Keith D. Wagner, Esquire For Ronald Wise-Stough

BRINSER, WAGNER & ZIMMERMAN

Frederick S. Long, Esquire For Dustin Sutton

BRIGHTBILL LONG

Opinion, Charles, J., June 16, 2016:

Former Lebanon County President Judge G. Thomas Gates often proclaimed: “The only thing worse than abuse is abuse of the abuse Act.” Over the years, we have observed many parents attempt to use the Protection From Abuse (“PFA”) Law to gain leverage in custody litigation. However, almost never have we encountered a parent “abuse the abuse act” like the Plaintiff in this case.

I. FACTS

Ronald Wise-Stough (hereafter “FATHER”) and Arlee Ann Sutton (hereafter “MOTHER”) are the parents of twelve year old R.J. Dustin H. Sutton (hereafter “DUSTIN”) is married to MOTHER and is R.J.’s stepfather. Until FATHER filed the PFA now before the Court, R.J. resided with MOTHER for his entire life. DUSTIN has resided with MOTHER for at least the past three years. Together, DUSTIN and MOTHER are the parents of two other children, ages 15 months and 9 weeks.

For approximately five years prior to early 2015, FATHER “stepped out” of R.J.’s life. According to FATHER, R.J. fabricated a claim of child abuse. FATHER became afraid that R.J. might accuse him again of abuse. To avoid this, FATHER simply abdicated his role as father. During this five year period, DUSTIN was the only father-figure that R.J. knew.

At some point in 2014, FATHER decided that he wanted to reengage with R.J. Custody litigation was commenced. Eventually, a mediation was conducted before Custody Conciliator Marc A. Hess, Esquire. As a result of that mediation, the parties entered into a “build-up” agreement that periodically increased FATHER’s periods of partial custody with R.J. Eventually, FATHER enjoyed alternating weekends and Wednesday evenings with R.J.

The physical custody time afforded by the March 5, 2015 Court Order did not satisfy FATHER. On September 10, 2015, FATHER filed a Motion to Modify Custody seeking expanded time with his children. A custody mediation was scheduled for April 15, 2016.

On April 6, 2016, an incident occurred between R.J. and DUSTIN. Although testimony differed about the actual incident, everyone agrees that R.J. had created a mess of some sort and DUSTIN had asked him to clean up the mess. DUSTIN’s request irritated R.J., and he slammed a door shut. Unfortunately, R.J.’s fifteen month old brother was located in the door jamb. The infant’s hand got stuck in the door. The infant screamed. The hand started bleeding. MOTHER rushed to aid her infant son. DUSTIN then grabbed R.J. and pushed him up against a wall.

While everyone basically agrees with the above, there were differences in the description of this incident. DUSTIN and MOTHER claim that R.J. actually looked and saw his brother in the door before slamming it shut. R.J. claims that he did not know that his brother was located there. MOTHER and DUSTIN claim that DUSTIN picked up R.J. by his arms or armpits. R.J. claims that DUSTIN picked him up by his neck.

The next day, R.J. called FATHER to complain about what DUSTIN had done. FATHER drove immediately to R.J.’s school. Somehow, MOTHER got wind of what was happening. She removed R.J. from school. Because MOTHER felt that FATHER’s conduct in approaching school authorities violated the existing Court Order, MOTHER took R.J. to the police station to request that FATHER be charged for violating the custody order.

FATHER came into the Lebanon County Courthouse. He filed a PFA. In its entirety, the allegation of FATHER’s PFA read:

My son [R.J.] called me at 9:00 a.m. and told me that his step-father Dustin Sutton choked him and he had bruises and a scratch on his back. [R.J.] reported this to the school to Mrs. Grove and Mrs. Grove reported to CYS through Childline services based on what child stated. Mrs. Grove texted me and let me know that she made a report to CYS. Childline report states: Dustin choked the child, there are red marks on both sides of the child’s neck, a scratch on his chin. Child fell as he was being choked resulting in a large brushburn on his left hip. Mother was present and told the Defendant to stop. Defendant is diagnosed of obsessive compulsive disorder and Defendant is on Megan’s Law as a part of child sexual abuse and is not to be left alone with children. Child is coached by Defendant and Mother to not tell anyone what happens at home. CYS is involved. Biological parents have court ordered custody with Father of victim having every other weekend and Wednesdays. CYS went to school today (4/7/16) to speak with [R.J.] and his mother pulled him out of school before they had a chance to speak with him.

Based upon these allegations, the Court issued an ex parte Order that granted custody of R.J to FATHER. Even though MOTHER was not accused of abuse, she was not afforded any physical custody periods via the PFA Order.

The allegations of abuse were reported to both the police and to CYS. An investigation was commenced. When R.J. was first seen by CYS, Caseworker Jessica MacTavish observed scratches on R.J. but she did not observe red marks around R.J.’s neck. R.J. told Ms. McTavish that he did not know how the scratches under his chin had occurred. He also declined to describe DUSTIN’s conduct as a “choke”.

FATHER took R.J. to the hospital. According to a report marked as Exhibit 1 to FATHER’s Emergency Custody Petition, R.J. reported that DUSTIN had grabbed him around the throat and pinned him against the wall. MOTHER then told DUSTIN to stop and DUSTIN then threw R.J. to the ground. R.J. denied that he suffered loss of consciousness and he denied that he had any difficulty breathing.

On April 12, 2016, FATHER filed an Emergency Custody Petition. The Emergency Custody Petition alleged that DUSTIN had choked R.J. The Petition alleged “his mother was present during abuse and told Dustin to stop but never informed authorities or took R.J. to a doctor to be checked out.” An ex parte Order was entered by this Court that granted FATHER full legal and physical custody of R.J. Once again, no provision was included for MOTHER to have contact with R.J.

Predictably, both MOTHER and FATHER hired attorneys. MOTHER’s attorney requested that MOTHER be afforded rights of physical custody. FATHER declined and demanded that all visits between MOTHER and R.J. be supervised. Eventually, MOTHER did have two supervised visits with R.J. that lasted two hours each. This was MOTHER’s only contact with R.J. for approximately six weeks.

Pursuant to the initial ex parte PFA Order, a hearing was scheduled for April 14, 2016. FATHER requested a continuance in order to obtain counsel. The Court granted FATHER’s continuance request and the PFA hearing was postponed until April 28, 2016. On April 28, 2016, FATHER requested a second continuance of the PFA. This second request for a continuance was also granted. Another hearing was scheduled for May 26, 2016.

Perhaps fortuitously, a pre-trial conference was scheduled with the Court regarding FATHER’s Custody Complaint. On May 12, 2016, we met with counsel to pre-try the custody case. At that time, we learned about the sequence of events outlined above. We also learned that MOTHER had been effectively precluded from enjoying any meaningful relationship with R.J. after the date on which the PFA was filed. Based on what was represented to us by counsel, we scheduled an Emergency Custody hearing for Friday, May 27, 2016. Because the Emergency Custody proceeding and the PFA involved the same people and the same issue, we sua sponte consolidated the PFA hearing with the Emergency Custody hearing. Facts relating to both matters were presented to this Court over three hours on May 27, 2016.

At the May 27, 2016 hearing, FATHER acknowledged that he prevented MOTHER from enjoying custody rights with R.J. after he had been placed in charge of custody by the April 7, 2016 PFA Order. He expressed concern about “mental abuse” by MOTHER and “inappropriate comments” by MOTHER that were designed to make R.J. feel guilty. When asked for an example, FATHER described MOTHER as saying to R.J.: “You are breaking my heart. I have been there since day one.” Throughout the course of FATHER’s testimony, he made it clear that he should be in control of the custody situation. We remember FATHER emphasizing “I allowed her …” as though he had absolute authority to dictate all aspects of the custody arrangement.

During this testimony, R.J. indicated that he loves both his MOTHER and his FATHER. He appeared to be somewhat dismayed about everything that has happened with the police, CYS, lawyers and the court. When describing the incident with DUSTIN, R.J. indicated that MOTHER physically grabbed DUSTIN while DUSTIN was holding him off the floor. R.J. stated that MOTHER protected him at a time that DUSTIN was angry and on the verge of losing control. In his testimony to us, R.J. testified that he did have “a little bit” of difficulty breathing while DUSTIN “choked” him.

Both DUSTIN and MOTHER testified that R.J. is a borderline defiant child. According to MOTHER and DUSTIN, R.J. has in the past physically struck his fifteen month old brother. Both MOTHER and DUSTIN indicate that R.J. is a habitual liar.

Jessica McTavash and Sharon Gassert of CYS also testified. Both described the investigation completed by CYS. That investigation included an interview by Jessica McTavash with R.J. that occurred shortly after the allegations of abuse were lodged. In that interview, R.J. denied knowing how the scratches under his chin had been caused. Although R.J. said that he was grabbed by DUSTIN around the neck, he declined to use the word “choke” to describe the incident and he did not articulate that he had any difficulty breathing. Sharon Gassert facilitated an interview of R.J. at the Children’s Resource Center (“CRC”). The CRC interview was conducted by an investigator who was specially trained in interviewing children. According to Ms. Gassert, R.J. provided information in the CRC interview that was not completely consistent with what had been previously reported. In addition, R.J. proclaimed that a former step-father had “almost touched his penis” ten years previously when he was two years of age.

After the CYS investigation was concluded, a team of caseworkers met to discuss R.J.’s case. This team could have declared the abuse to be “founded”, “indicated”, or “unfounded”. CYS voted to declare the allegation of abuse “unfounded”.

Immediately following the May 27, 2016 hearing, we vacated the Emergency Custody Order that had transferred legal and physical custody of R.J. to FATHER. We returned primary custody to MOTHER pending a final order that we will be issuing today’s date. Because we feel so strongly about FATHER’s inappropriate abuse of the legal system, we have chosen to issue this opinion as a warning to him and others about the perils of employing hyperbole in a PFA in order to gain temporary leverage in a custody dispute.

II. DISCUSSION

“The purpose of Pennsylvania’s Protection From Abuse Act is to protect victims of domestic violence from those who perpetrate such abuse; its primary goal is to ‘advance prevention of physical and sexual abuse’.” Lawrence v. Bordner, 907 A.2d 1109, 1112 (Pa.Super. 2006), quoting in part Fonner v. Fonner, 731 A.2d 160, 161-62 (Pa.Super. 1999). In cases where PFA and custody actions intersect, “a PFA order may not impose other than an emergency or custody order ….” Dye for McCoy v. McCoy, 621 A.2d 144, 145 (Pa.Super. 1993). Stated differently, “the Protection From Abuse Act was enacted to provide immediate protection from physical abuse; it was not intended to replace other, established proceedings for the determination of permanent custody of children.” Rosenberg v. Rosenberg, 504 A.2d 350 (Pa.Super. 1986) at fn. 1; see also Popeski v. Popeski, 3 Pa.D&C4^th (1989).

In applying the above law to what we heard on May 27, we have concluded beyond any doubt whatsoever that FATHER’s PFA was not designed to protect R.J. from “abuse;” it was an effort by FATHER to gain leverage in his custody dispute with MOTHER. In viewing the totality of evidence presented to us, we find FATHER’s tactics to be unconscionable – and we do not use that word lightly. Instead of using the PFA law to protect an innocent child, FATHER abused the abuse law in a manner that was wholly inconsistent with R.J.’s best interest. It is difficult for us to express how strongly we disagree with FATHER’s actions in this case. Nevertheless, we will try by outlining some of our factual conclusions.

(1) R.J. was not abused

In order for PFA relief to be granted in any case, “abuse” must be shown to exist. The term “abuse” is defined in the PFA Act as including the following:

(1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury…with or without a deadly weapon.

(2) Placing another in reasonable fear of imminent serious bodily injury…

(4) Physically or sexually abusing minor children…

23 Pa.C.S.A. § 6102. Courts of this Commonwealth have consistently proclaimed that corporal punishment does not, except in extreme circumstances, constitute “abuse.” In Chronister ex rel Morrison v. Brenneman, 742 A.2d 190 (Pa.Super. 1999), Pennsylvania’s Superior Court stated:

We believe the above conclusion [that corporal punishment is not abuse] is bolstered by 18 Pa.C.S.A. § 509 which, although sounding as a justification defense in the criminal law arena, has been characterized as codifying a parental “privilege” to administer corporal punishment. This section allows the use of force upon another under certain circumstances. For our purposes subsection (1) is relevant and provides for the use of force if the actor is a parent and the force is used for the purpose of safeguarding or promoting the welfare of a minor, including the preventing or punishment of his misconduct, where the force ‘is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain, or mental distress or gross degradation.’ Cases interpreting this provision have stated that parents may use corporal punishment to discipline their children ‘so long as the force used is not designed or known to create a substantial risk of death, serious bodily injury, disfigurement, extreme pain, or mental distress or gross degradation. Appeal of E.S., 82 Pa.Cmwlth. 168, 474 A.2d 432 (1984). Other cases have referred to the parental ‘privilege’ to administer corporal punishment. See Commonwealth v. Ogin, 373 Pa.Super. 116, 540 A.2d 549 (1988). If the activity found in the present case were viewed as violating the Protection from Abuse Act then a parent could exercise his or her ‘privilege’ only to suffer the rather inconsistently seeming consequence of losing custody of the child or being banished from his or her home. This seems grossly illogical.

Id. at 193. See also P.R. v. Commonwealth Dept. of Public Welfare, 801 A.2d 478 (Pa. 2002), 23 Pa.C.S.A. § 6303; P.R. v. Dept. of Welfare, 801 A.2d 478 (Pa. 2002); L.A.J. v. Dept. of Public Welfare, 726 A.2d 1133 (Pa.Cmwlth. 1999).

There is absolutely no doubt that a confrontation occurred between DUSTIN and R.J. on April 6. For a time, FATHER successfully “spun” the event to paint the picture of a young boy who was choked in a life-threatening manner by an enraged out-of-control overbearing stepfather. We see the event a bit differently.

R.J. is entering adolescence. For five years, DUSTIN served as a parental figure and attempted to impart self-discipline to R.J. by requiring him to complete chores and clean up after himself. In typical adolescent fashion, R.J. rebelled. On April 6 when DUSTIN instructed R.J. to clean a mess he had made, R.J. reacted with petulance. As part of this reaction, R.J. slammed a door that struck his little baby brother. The toddler screamed. Both MOTHER and DUSTIN reacted with understandable parental angst when they heard the scream. In particular, DUSTIN left a shower that he was taking. He entered the room where R.J. was located. He saw his 15-month-old son bleeding. He saw MOTHER attempting to stop the bleeding. He learned that R.J. had caused the injury. He also remembered that at times in the past, R.J. had bullied and physically struck his younger brother. When confronted with these events and memories, DUSTIN responded with anger and grabbed R.J. He shoved R.J. against a wall in an aggressive fashion in order to communicate the message: “You can never do this again; you could have seriously hurt your little brother.”

We refuse to characterize this incident as “abuse.” While DUSTIN’s conduct was undoubtedly spawned by anger, we have little doubt that DUSTIN was also motivated by a desire to teach R.J. that similar behavior could not be repeated in the future because his little brother could be seriously hurt or even killed. DUSTIN’s response was an understandable human reaction to a disturbing situation that unexpectedly confronted him.

Just as important as the above, R.J. was not injured. He went to school the next day. The marks depicted on the photographs shown by FATHER at the hearing did not depict serious injuries, nor were they apparent to CYS caseworkers when R.J. was interviewed. Moreover, R.J. denied to an emergency room doctor and to CYS that DUSTIN’s actions could be equated with “choking.” Based upon the totality of information presented, we conclude that R.J. did not suffer “bodily injury” as that term is defined in the PFA Act.

For the above reasons, we reject FATHER’s claim that DUSTIN “abused” R.J. We agree with the determination of the Lebanon County CYS agency that declared the abuse allegations to be “unfounded.” For all of the above reasons, we reject FATHER’s PFA claim.

(2) FATHER employed hyperbole when communicating with authorities

While FATHER’s report of the April 6 incident contains grains of truth – there was an altercation that occurred after R.J. slammed the door on his baby brother – his allegations were laced with half-truths and exaggerations. Examples of FATHER’s use of hyperbole include the following:

FATHER’s PFA allegations allege that DUSTIN was diagnosed with “Obsessive Compulsive Disorder.” When asked about this in Court, FATHER acknowledged that he had no personal knowledge about this diagnosis and he based this language upon something that R.J. told him. DUSTIN has never been diagnosed with Obsessive Compulsive Disorder, and R.J. acknowledged that he was unaware of any such diagnosis.

In his PFA allegation, FATHER reported “Defendant is on Megan’s Law as part of child sexual abuse and is not to be left alone with children.” This is an extremely serious allegation. If a Court Order exists that prevents an adult sexual predator from having contact with children, and if that requirement is violated, it creates an almost per se entitlement to PFA relief. In this case, DUSTIN does have a conviction from the state of Delaware for having consensual sex with a minor female. This conviction occurred in 2003 when DUSTIN was himself a young man. While this conviction may have triggered Megan’s Law at the time, DUSTIN had paid his debt to society for this conduct. There is absolutely no evidence whatsoever that any Court Order now exists that would prevent DUSTIN from having unsupervised contact with children. Likewise, there is absolutely no evidence whatsoever that DUSTIN has had any aberrant sexual contact with R.J. or anyone else since 2003.

In his PFA allegation, FATHER wrote “child is coached by defendant and mother to not tell anyone what happens at home. CYS is involved.” At the hearing on May 27, FATHER was asked about these allegations. He acknowledged that he was “afraid” that DUSTIN and MOTHER would “mentally abuse” R.J. by expressing disbelief over R.J.’s allegations of abuse. When asked to give an example, FATHER reported that MOTHER told R.J.: “You are breaking my heart. I have been there since day one.” We cannot equate these types of statements by an emotionally distraught mother with “mental abuse,” nor can we declare such statements to be equivalent to “coaching.” Moreover, when we interviewed R.J., there was no evidence of coaching by DUSTIN or MOTHER – R.J. was very clear that he did not appreciate DUSTIN’s efforts to discipline him and he was even more clear that he did not enjoy being a witness to loud arguments between MOTHER and DUSTIN.

In his PFA allegation, FATHER stated: “[R.J.] stated that Dustin has hit him with a beating stick in the past.” This allegation was also addressed as part of the May 27 hearing. We learned that at one point, DUSTIN and MOTHER had inherited a stick that had been referred to by his family as “Momma’s helper.” This stick was used by the Sutton family to impart corporal punishment when needed. We also learned that “Momma’s helper” was lost when the Sutton family moved several years ago. When asked about this punishment tool, R.J. himself stated that “Momma’s helper” had been used upon him as a discipline tool by MOTHER on only one occasion.

When an individual reports information to a Court, it must be complete and accurate. When petitions such as those filed under the PFA Act are submitted to a Judge, the Petitioner must realize that the information will be read and relied upon. Imparting hyperbolic information triggers a significant risk that the resulting Court Order will create injustice. In this case, FATHER embellished the allegations of what occurred between DUSTIN and R.J. with unnecessary comments. He also implied in his allegations that DUSTIN’s abuse was enabled by MOTHER via “coaching” and acquiescence. All of these allegations were, at best, misleading and, at worst, fabricated. We cannot disagree more with FATHER’s choice to include this type of language in the ex parte PFA Petition submitted to this Court.

(3) FATHER did not make any effort to verify information before filing his PFA

FATHER acknowledged on multiple occasions that his PFA Petition was based almost exclusively on information provided to him by R.J. In many cases, we would not fault a parent for pursuing PFA relief based exclusively on what was reported by a child. However, the context of this case is different.

For approximately five years, FATHER abdicated his parental duties as it relates to R.J. When asked why, FATHER explained that R.J. had falsely accused FATHER and others of doing things that they did not do. FATHER explained that he was afraid of being accused of abuse by R.J. Because of this fear, FATHER chose to “step out” of R.J.’s life for a period of five long years.

Effectively, FATHER told us that he did not trust R.J.’s veracity. In fact, FATHER had such a profound distrust of his son’s credibility that he used that distrust as justification for abdicating his parental role for five years. Despite this degree of skepticism about his son’s ability to tell the truth, FATHER felt justified in filing a PFA based entirely upon what R.J. told him. To say the least, FATHER’s choice to rely entirely upon R.J. for the PFA allegations is incongruous given his prior skepticism about R.J.’s veracity.

Almost all parents would be concerned if a child reported being choked by an overbearing and enraged stepparent. However, most parents would at least attempt to make a phone call to the other parent in order to communicate what was said and inquire about what the other parent knew. Especially when history has called in to question a child’s ability to accurately relay facts, at least some effort should be made by a parent to verify the child’s statement before running to authorities. In this case, FATHER made no effort to investigate or verify the allegations of a boy who he admitted was unworthy of trust.

(4) FATHER’s decisions were motivated by his desire for custody

Perhaps more than anything else, we were offended by FATHER’s use of the Protection From Abuse process to almost totally estrange R.J. from his mother. We cannot forget that MOTHER remained an active part of R.J.’s life even when FATHER “stepped away” for five years. We cannot forget that MOTHER was not even alleged to have committed any act of abuse against R.J. We also cannot forget that R.J. acknowledged consistently that MOTHER put an end to the confrontation between DUSTIN and R.J. by telling DUSTIN to “put him down.” Despite all of the above, FATHER used the PFA process to prevent MOTHER from having ANY meaningful relationship with R.J. for approximately six weeks.

If the above were not enough, FATHER also prevented a prompt PFA hearing from occurring by procuring two separate continuances. When FATHER’s ex parte order was scheduled to be first reviewed on April 14, 2016, FATHER communicated to the Court that he wanted to obtain legal counsel. As a result, he was granted a two week continuance until April 28, 2016. On April 28, 2016, FATHER asked for a second continuance because he wanted the CYS investigation to be concluded before a hearing occurred. By procuring these continuances, FATHER extended his period of complete control over custody of R.J. for a period of roughly six weeks.

When FATHER initially requested his PFA, he could have requested or agreed that MOTHER should retain periods of physical custody until a full hearing could be conducted. When FATHER was before the Court on April 14, 2016 and April 28, 2016, he could have told the Judge that MOTHER deserved to be able to see R.J., especially since she was a consistent part of R.J.’s life since birth and he was not. When MOTHER’s attorney called and wrote a letter seeking physical custody rights pending the full PFA hearing, FATHER could have granted those rights.

Instead, at every opportunity, FATHER acted to restrict and deny any contact between MOTHER and her son. He attempted to justify his decision by characterizing MOTHER as someone who would “mentally abuse” R.J. and “make him feel guilty” about the allegations of abuse he proffered. When FATHER eventually did permit MOTHER to have supervised visits with her son, he almost proudly proclaimed “I allowed her…” as though he were some sort of despot who had the exclusive right to control every aspect of his son’s life.

FATHER’s decision to use the PFA law to abruptly end any meaningful parental contact with MOTHER was unconscionable, and we were offended by it. To this day, no PFA Petition has been filed against MOTHER, no findings of abuse have been lodged against her by any CYS agency and R.J. has not expressed fear of her. Under these circumstances, it was flat-out wrong for FATHER to limit R.J.’s contact with his MOTHER to two supervised visits in six weeks.

III. CONCLUSION

“Abuse” is an incendiary word. Pursuing an ex parte PFA Petition is not a step that should be undertaken cavalierly. While the PFA law remains an important tool to protect those who may not be able to protect themselves, everyone must also recognize that ex parte PFA relief can be potentially devastating to respondents who are not given notice or an opportunity to be heard prior to being subject to relief such as eviction and forced estrangement from children. More important, ex parte relief can throw the lives of children into turmoil by abruptly altering their living arrangements and relationships.

While this Court will never hesitate to respond as necessary to truly abusive and dangerous situations, neither will we tolerate efforts by estranged parents to use the PFA law as a means to gain leverage in a custody dispute. Sometimes, like in this case, a parent may temporarily gain an advantage by employing exaggerated or false allegations in an ex parte petition. As regrettable as these instances are, they are a part of the price to be paid so that truly abusive conduct can be addressed promptly. Nevertheless, when the dust settles after a full hearing is conducted, hyperbole will be exposed and custody motivated allegations will be revealed. When that occurs, this Court will act swiftly and appropriately.

In this case, FATHER was successful in temporarily gaining control over custody of R.J. via his misuse of the PFA law. In the long run, though, his disingenuous and dictatorial behavior will be factors that will bear negatively upon his character when we are finally called upon to render a decision regarding ongoing custody of R.J. More important, we will not forget how FATHER’s conduct victimized R.J. by temporarily estranging him from the mother whose love has been a constant in his life since birth.

We will deny FATHER’s request for PFA relief. All of FATHER’s custody-related requests submitted in conjunction with his PFA will be denied. Going forward, custody of R.J. will be resolved in custody court pursuant to the procedures that exist for such determinations. In the meantime, we would entertain a request by MOTHER for counsel fees under 42 Pa.C.S.A. § 2503. If such a motion is filed, we will schedule a hearing to determine whether the conduct of FATHER in pursuing his PFA could be considered to be “obdurate, vexatious, dilatory or arbitrary” as those terms are defined in Section 2503.

An Order to accomplish all of the above will be entered today’s date.

1) We are unwilling to undertake a value debate about which type of abuse is actually worse. Suffice it to say both can have horrific consequences.

2) We will refer to the parties’ son by his initials rather than his name.

3) To be fair, R.J. appeared to be just as dismayed that MOTHER went to the police to complain that FATHER approached his school as he was about everything that was generated as a result of FATHER’s abuse allegations.

4) We find it difficult to believe that R.J. could recall an event that occurred when he was two years old.

5) It is not completely clear to us whether R.J. intentionally slammed the door on his little brother. Some evidence seems to suggest that this is something he would consider doing. Moreover, it is hard to believe that R.J. would not have seen his little brother sitting in the doorway when he slammed the door shut. On the other hand, R.J. has consistently proclaimed that he did not know his brother was located in the door jam. At this point, it is not necessary for us to reach a definitive decision with respect to whether R.J. intentionally slammed the door on his little brother. Suffice it to say that R.J. could have seriously injured his brother and he should have been more careful before slamming the door shut. Regardless of whether R.J. intentionally shut the door or accidentally slammed it on his little brother, we would not fault a parent for punishing R.J. for his actions. Slamming doors in a fit of anger while toddlers are present is not conduct that can or should be encouraged by parents.

6) We note that others have also questioned R.J.’s credibility. Both MOTHER and DUSTIN testified that R.J. has a tendency to lie. We note that R.J.’s testimony to us that he was “choked” and had a “little bit of a problem breathing” is inconsistent with what R.J. told CYS caseworkers and his statement to medical professionals that “he had no difficulty breathing.” In addition, R.J. communicated to CRC interviewers that he had been sexually touched when he was two. He could not possibly have remembered the incident.

7) It is cases like this one that has caused this Jurist to be reluctant to grant PFA continuance requests when abuse of children is alleged. This Jurist believes that when children are involved in a PFA, full hearings should take place sooner rather than later.

8) This is not to say that we will automatically rule against FATHER in the upcoming custody trial. We will, of course, listen to all testimony that is presented regarding the question of what is in R.J.’s best interest. To be fair, we were not pleased to hear from R.J. about how MOTHER and DUSTIN argue frequently and vociferously. We also were not thrilled with MOTHER’s decision to approach police when FATHER attempted to approach R.J. at his school. To be sure, FATHER’s abuse of the PFA process will be a factor that is considered against him. But it will be only one factor of many that we will consider at the time of the custody trial.