Tuesday, October 11, 2005

abuse - credibility - police report/medical treatment not required to establish credibility

Karch v. Karch - Pa. Superior Court - October 11, 2005

http://www.courts.state.pa.us/OpPosting/Superior/out/A13004_05.pdf

Appellate court upheld trial court's grant of a PFA order.

1. medical treatment not required -- PFA plaintiff need not seek medical treatment for her injury. Neither the PFA act nor case law requires that there be medical evidence or that the plaintiff seek medical treatment in order for plaintiff's testimony to be found credible.

2. Police involvement not necessary. It is well-settled that neither the PFA Act not case law requires that a police report be filed in order to obtain a PFA order. "We wish to make it abundantly clear that this Court will not infer that the failure of the police to act on a report of domestic violence means that the victim is not credible, and we will not place the onus on the victim to force police departments to comply with sec. 6105 [responsibilities of law enforcement agencies] as a prerequisite for obtaining a PFA."

3. The correct burden of proof is a preponderance of the evidence.

4. The evidence was sufficient to grant a PFA order. Wife had prior 30-day PFA order a few months earlier, based on husband's having put his hands around his neck and threatened to snap it.. The newest abuse consisted of his holding his hand in the shape of a gun, touching his wife's head with enough force to cause pain, and telling her "there is your future." Wife also testified that the day after the this incident, one of her car tires had a puncture wound and was flat. The evidence also showed that husband previously had guns in the house and that they had been removed over his "strenuous objections." The court said that "this evidence was more than sufficient to sustain the grant of a PFA."

5. standard of review -- When a claim is presented that the evidence was not sufficient to support a PFA order, the court reviews the evidence in the light most favorable to the petitioner and grants her the benefit of all reasonable inferences. The court defers to the credibility determinations of the trial court as to witnesses who appeared before it.

custody - grandparent rights - Troxel distinguished - Ohio case

Harrold v. Collier - Ohio Supreme Court - October 10, 2005

http://www.sconet.state.oh.us/rod/newpdf/0/2005/2005-ohio-5334.pdf

The Ohio Supreme Court ruled that the grandparents of an 8 year-old girl must be allowed to visit her, even if her father objects, upholding the validity of a state law granting nonparents visitation rights to children. The Court said the Ohio law was narrower than the one struck down in Troxel v. Granville, 530 US 57 (2000) in that, inter alia, it granted right only to parents and other relatives of an unmarried, deceased parent. The Washington law allowed any third party to petition for visitation.

In the Ohio case, the child had lived with her deceased mother and the latter's parents. The mother died when the child was two, and the child continued to live with the maternal grandparents until she was five, when the father was granted primary custody. He refused to allow any contact by the maternal grandparents, who then petition for visitation.

The court said that Ohio courts were obligated to give "special weight" to the wishes of parents when considering visitation for nonparents. Using a strict scrutiny test, the court held that the visitation statute was constitutional and served a compelling governmental interest. The court said that, despite the "special weight" given to a parent's wishes, that Troxel did not require a nonparent to show "overwhelmingly clear circumstances" to support forcing visitation, but rather declined to defined "' the precise scope of the parental due process rights in the visitation context.' "

Unlike the Washington statute, the Ohio law applied only where one parent was deceased and the parents were unmarried; it also gave special consideration to the wishes of the surviving parents. The court said that nothing in Troxel indicated that the presumption that parents act in a child's best interest was irrebuttable that a parent's wishes were to be the sole determinant of a child's best interests, or placed above the child's best interests.

Donald Marritz
MidPenn Legal Services

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