K.F-M. v. J.W.M.
K.F-M. v. J.W.M. No. 1955 MDA 2016
| Pa. Super. Ct. | Jul 27, 2017Background
- Married parents with three daughters; eldest (L.M.) alleged sexual abuse by Father in a letter dated August 7, 2016; Mother reported to Agency and police and filed a PFA petition on August 10, 2016.
- Court entered an ex parte temporary PFA the same day: Father excluded from Mother’s home and workplace, prohibited contact with Mother and all three children, temporary sole custody to Mother, and firearm relinquishment (later amended to allow on-duty possession).
- Multiple continuances of the evidentiary hearing were granted (to obtain counsel and permit Agency/DA investigations); hearing began October 25 and concluded November 1, 2016.
- After evidentiary hearings (Mother, L.M., Father testified), trial court entered a nine-month final PFA (amended to name L.M. as protected party), continuing custody and firearm restrictions (firearm allowed on duty only).
- Father appealed raising five issues: (1) temporary PFA based on hearsay; (2) violations of the 10-day hearing requirement due to continuances; (3) denial of motion to dismiss; (4) improper firearm prohibition in final order; (5) improper blanket custody restriction preventing contact with the two non‑victim children.
Issues
| Issue | Mother’s Argument | Father’s Argument | Held |
|---|---|---|---|
| 1. Validity of temporary PFA based on hearsay | Mother: ex parte testimony about L.M.’s letter and L.M.’s fear showed immediate/present danger | Father: temporary order rested on hearsay from Mother who lacked firsthand knowledge; insufficient | Waived on appeal; even on merits, Mother’s ex parte testimony sufficed to show immediate/present danger for temporary order |
| 2. Multiple continuances and 10‑day hearing rule | Mother/Ct: continuances for counsel and to allow Agency/DA investigation were for good cause; initial hearing was scheduled within 10 days | Father: continuances violated 23 Pa.C.S. §6107(a) requirement and denied due process | Most continuances were within court’s discretion (Ferko‑Fox). One two‑week court delay was unreasonable but harmless; no relief granted |
| 3. Motion to dismiss PFA petition | Mother: petition supported by evidence at final hearing; temporary order appropriate | Father: petition should be dismissed (no immediate/present danger; abuse occurred months earlier) | Motion to dismiss denied; issue largely mooted by final order and unsuccessful on merits if considered |
| 4. Firearm prohibition in final PFA | Mother/Ct: final orders may restrict firearms under §6108(a)(7); suicide threats and sexual violence support restriction | Father: §6107(b)(3) factors for temporary firearm relinquishment not satisfied because firearm not used/threatened in abuse | Court upheld final firearm prohibition under §6108(a)(7); abuse and suicide threats justified restriction |
| 5. Custody restriction preventing contact with two non‑victim children | Mother: Father’s sexual abuse of one child supports risk finding to others; PFA may deny custodial access where risk exists | Father: statute confines denial/supervision to the abused child; he should have at least supervised access to non‑victim children | Court found it reasonable to conclude risk to all children given sexual abuse of one child; denying custodial access was within discretion; custody issues remain subject to separate custody proceedings |
Key Cases Cited
- Ferko‑Fox v. Fox, 68 A.3d 917 (Pa. Super. 2013) (courts have authority to continue §6107 hearings; review for abuse of discretion).
- Burke ex rel. Burke v. Bauman, 814 A.2d 206 (Pa. Super. 2002) (motion to dismiss a PFA petition cannot preclude required evidentiary hearing).
- K.H.D. v. J.D., 696 A.2d 232 (Pa. Super. 1997) (hearsay alone is insufficient to support a final PFA order).
- In re M.W., 842 A.2d 425 (Pa. Super. 2004) (sexual abuse of one child can justify protective measures for siblings).
- Stamus v. Dutcavich, 938 A.2d 1098 (Pa. Super. 2007) (PFA’s core purpose is prospective prevention of domestic violence; custody is properly resolved in separate proceedings).