“Be careful what you ask for. If you tell the authorities that your ex committed child abuse and cannot prove it, your credibility might be doubted when you really need it later.” That’s the advice I would give to the Father who successfully appealed in T.H. v. M.H., No. 1204 WDA 2011 (February 25, 2013), a non-precedential opinion of the Superior Court of Pennsylvania. The Father in that case appealed when his Protection from Abuse action was dismissed by a Washington County judge who found that he should have initiated a custody action instead. The pivotal issue was the trial court’s refusal to allow the teenage daughter to testify about the abuse she may have suffered. The trial court must have suspected that Father’s PFA action was really a custody case in disguise, an end run around the procedural obstacles to switching custody from Mother to Father.

On appeal, the Superior Court held that Father had a due process right to call witnesses, including his daughter, in support of his PFA case. While the court may have a right to limit the number of witnesses whose testimony is similar or cumulative, this rule should not preclude the testimony of a willing child witness who had relevant, admissible knowledge. Denying Father the right to call his daugher to testify in support of abuse that she may have suffered, the Court held, was a denial of Husband’s due process rights.  The case was remanded to the trial court for further hearings.