Certainly, having a criminal record can have a negative effect upon litigation of custody issues in the Commonwealth of Pennsylvania. A conviction, especially of a child related or violent offense could potentially sway a Judge in terms of a custody factor thus swaying the entire litigation. Likewise, Protection from Abuse (PFA) Orders are often used during divorces as tactical moves to evict a party to the divorce from a home in order to influence custody or attempt to gain control of the home and its contents. Some divorce counsel often use PFA’s unscrupulously in order to gain leverage during a divorce.
G.P.M. v. A.M.F., 2018 Pa. Super. Unpub. LEXIS 4890 (2018), stands for the proposition that the record of a Temporary PFA that has been raised in a custody or divorce action, can be blocked from public view and can be eliminated as evidence. In G.P.M. Supra. the mother who was the party to the action in custody, filed a PFA and obtained a Temporary Protection from Abuse (TPFA) Order from the Court based upon the allegations made at the time she applied for the PFA. The PFA was eventually dismissed and never became a permanent Order.
The Father later filed a Petition for Special Relief which demanded expungement of the record of the TPFA. The Court granted this motion and directed that the TPFA be expunged. The Court further directed that the entry of the TPFA be blocked from public view.
A custody action was commenced by the father and in the mother’s response her pleadings specifically referred to the TPFA and attached the original TPFA order as an exhibit. The father upon receipt of the response filed another pleading indicating that the mother had violated the expungement order which not only put into evidence an expunged matter but also jeopardized the father’s employment with the Department of Defense clearances which were mandatory for his employment. He asked the Court to prevent the mother from using the order as an exhibit and to direct the department of records to block the TPFA order from any public view. The Court denied the father’s request indicating that the expungement order was enough and noting that it was a waste of judicial resources to make changes to the pleadings in order to eliminate all references to the TPFA.
The father appealed this determination and the appellate Court was compelled to evaluate the common law right of openness in pleadings with the prejudice done to the father. The Court determined that the case presented a situation in which a party’s interest in his reputation defeated the common law right of access to inspection of judicial records. When, as here, the parties in a custody proceeding stipulate to declare a TPFA order null and void, the target of the TPFA order is entitled to expungement of the order. Carlacci v. Mazaleski, 568 Pa. 471, 798 A.2d 186, 190-91 (Pa. 2002). The purpose of expungement is to protect his reputation, id. at 189, as well as the loss of employment, housing or education that may accompany a record of domestic violence. Cf. Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205, 1207 (Pa. 1981). Using the TPFA order as an exhibit defeats the purposes of expungement. The exhibit potentially smears the father’s reputation and jeopardizes his employment, housing and educational prospects.
The mother was instructed to refrain from any further references to the TPFA order or inclusion of the order as an exhibit to pleadings or motions. In addition, the appellate Court indicated that the trial Court should immediately direct removal of all existing references to the TPFA order, either in the body of pleadings or as exhibits, from the record. Permitting these references to remain available for public view frustrates the purpose of expungement by harming Father’s reputation and other interests, particularly his DOD clearances.
So, as a practical matter if you are the victim of a TPFA order that was dismissed or expunged, you should request that all references to it be immediately eliminated from any pleadings or argument in your current custody issue. Please note however that this case will help you – but is not controlling on this issue. Moreover, one important fact here is that the father had security clearance issues which could be caused by the trial Court’s failure to completely wipe the record clean of the TPFA.