Superior Court Develops an “Affinity” for Expanding PFA Protection.
Pennsylvania was early to adopt a law protecting related people from abuse. It’s a tough statute which, if violated, can produce civil and criminal penalties. So language becomes important, especially when the “protections” can extend for up to three (3) years.
Because the remedies can be so severe, one should think that the statute needs to be carefully read and strictly construed. The case of Mickelson v. White, decided on December 5, 2024 demonstrates how bad facts often yield bad law even though the trial and appellate courts are clearly trying to do justice.
Mickelson and White had a two year relationship that produced a child. Mickelson has children from other relationships but during the two years of l’affaire all five people lived together. Since Mickelson moved out with the children in 2018 things have been bad so there is a history of Protection from Abuse Orders. This situation was not helped by Mickelson’s decision to live on the same street as Mr. White and her travels take her past White’s residence more or less daily. The threats reportedly uttered by Mr. White in the prior abuse cases included burning down her home and showing her a bag of dynamite he had acquired from “Dan the Boom Boom Man.” Yes, that’s what the opinion tells us.
The opinion also tells us, without specification, that Mr. White had stalked her. He threw a rock at her and hit her in the head (time also not specified). The incident that prompted the current case involved a statement that Mr. White intended to get rid of her (Mickelson) and that their child would live with him. These all seem precisely the forms of conduct that the abuse statute was intended to deter.
Unfortunately, the opinion then tells us of conduct that really doesn’t seem to merit protection from abuse. Mr. White threatened to harm Mickelson’s dog. He called her “a joke”, “mentally ill and “crazy.” While no one can defend any of this conduct it does not involve “placing another in fear of imminent serious bodily injury” (emphasis supplied). 23 Pa.C.S. 6102 (a).
The petition sought relief for Ms. Mickelson and all three of her kids, including the two who were not related to Mr. White. The Court granted that relief and Mr. White appealed.
Much of the appeal is typical. White acknowledged that things had gotten physical since they separated but denied the new allegations. The Court notes that it has very little authority of reverse cases because credibility was wrongly decided. The relief was granted for six months, a period which had expired before the appeal was decided. While the appellate court noted that technically the matter was moot because the order had expired because a PFA finding is admissible in future PFA and custody proceedings the court elected to decide the appeal.
The more challenging issued is who was covered by the order. It extended to Mickelson and all three children even though two kids had no relationship to White. The statute provides protection for “family and household members” and defines that as:
Spouses or persons who have been spouses, persons living as spouses or who lived as pouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood.
Mr. White indicated on appeal there was no basis for protection to include two children with whom he had no family relationship and with whom he had not resided for nearly six years. The Superior Court relies upon Commonwealth v. Walsh, 36 A.3d 613 (Pa.S. 2012) where it was held that : The term “affinity” is not defined in the PFA Act. See 23 Pa.C.S. § 6102. The dictionary defines “affinity” as, inter alia, “related by marriage or by ties other than those of blood.” Webster’s American Dictionary, 14 (2nd College ed.2000) (emphasis added). In that case an adult filed a PFA on behalf of her minor sister against Mr. Walsh. The trial and appellate courts granted the relief because the victim “has ties other than those of blood to Appellant as victim’s two half-siblings are the natural children of [Walsh] and then victim’s mother.
One has to start review of the Walsh case by asking how a sister has legal authority to file legal proceedings on behalf of a child when neither parent has taken action to do so and the sister has no legal custody. But the more troubling problem is the term “affinity.” This was probably some poor drafting by the legislature. We are familiar with the term affinity when tied to “consanguinity.” In that setting consanguinity is a blood relationship (shared DNA in today’s parlance) but affinity means a relationship by marriage or adoption. Affinity vs. Consanguinity – What’s the Difference? | This vs. That. It is a relationship either licensed (i.e., marriage) or sanctioned by court order (i.e., adoption).
Meanwhile, this seems to be a hot area of prior appellate dispute. In B.R.S. v. J.L. the Superior Court held that a man could secure a P.F.A. against his wife’s sister’s husband. 236 A.3d 1167. That case relied upon McCance v. McCance which held that relatives “in law” could secure relief under the statute. 908 A.2d 905, 908 (Pa.S.2006). In H.M.H. ex rel M.L.H v. D.J.G. a mother sustained an action on behalf of her child against a minor child who was sexually assaulted by her first cousin. 210 A.3d 245 (Pa. Super 2019). Perhaps, most challenging was Custer v. Cochran, a full court decision holding that siblings could sue each other under the PFA statute even though it was clear on the facts that the physical altercation was in fact a commercial dispute over a business the two shared. 933 A.2d 1050 (2007).
The challenge in today’s case is that there is no nexus between two of the children protected by the order and the conduct of the defendant. And, the affinity argument does not really save the day because these children experienced no threat proferred by the defendant. While domestic violence of all kinds merits condemnation and judicial actions to restrain it, these two unaffiliated children are not “victims” and that’s the purpose of the statue. The case involving the Melinson-White child born in 2017 has more gravitas because there was a threat to the health and safety of the other parent and assume primary custody of their child.
Some may contend that such a careful interpretation of the statute is improvident. But as we noted at the outset, this is a statute which affects lives for up to three years at a time, comes pregnant with potential criminal liability (23 Pa.C.S. 6114) and can impact both 2nd Amendment rights (23 Pa. C.S. 6108(a)(7) and child custody litigation (23 Pa C.S. 5328(a)(2)). Other states are more careful in limiting the extent to which consanguinity and affinity (See CA Fam Code Sec 6211) should apply. But courts should be careful to keep this otherwise serious statute in check, especially in a world where these petitions are so often brought (40,000 cases in 2022) and interim ex parte orders so freely granted (roughly 85%).