Sirley M.M.v.Jorge L.C.

Family Court, Queens CountyJan 5, 2018
O-14843-17 (N.Y. Fam. Ct. 2018)
O-14843-172018 N.Y. Slip Op. 28003

O-14843-17

01-05-2018

In the Matter of Family Offense Proceeding, Sirley M.M., Petitioner, v. Jorge L.C., Respondent. In the Matter of Family Offense Proceeding, Jorge L.C.,Petitioner, v. Sirley M.M.,Respondent.

For Sirley M.M., Ronna Gordon-Galchus, Esq.; For Jorge L.C., Jennifer Arditi, Esq.


For Sirley M.M., Ronna Gordon-Galchus, Esq.; For Jorge L.C., Jennifer Arditi, Esq.

PROCEDURAL HISTORY

On July 24, 2017, Sirley M.M. (hereinafter "Ms. M") filed a family offense petition against her husband, Jorge L.C. (hereinafter "Mr. C"). On that same date, Mr. C filed a family offense petition against Ms. M in family court. On September 11, 2017, Mr. C served Ms. M with matrimonial papers, and divorce proceedings commenced. On December 6, 2017, the parties returned to family court for an appearance on their family offense petitions. On that date, the Court with consent of both parties adjourned both petitions for six months with temporary orders of protection in place. The parties agreed to pursue their mutual grievances in Queens Supreme Court and not to prosecute the petitions beyond the expiration date. The parties agreed not to file any further family offense petitions against each other unless new facts arose or a violation of the temporary orders of protection occurred. Pursuant to the parties's agreement and understanding, the matter was adjourned with no appearances necessary to an agreed upon expiration date of the temporary orders of protection at which time the petitions would be dismissed. This de facto adjournment in contemplation of dismissal ("hereinafter "ACD") used by the Court satisfies the interests of both parties and resolves their family offense matters.

New York State Family Court Act Article 8 establishes a civil proceeding to protect persons within intimate relationships from violence. See NY Fam. Ct. Act Art. 8 (McKinney's 2018). Specifically, family offense proceedings were designed for the "purpose of attempting to stop the violence, end the family disruption and obtain protection." NY Fam. Ct. Act § 812(2)(b) (McKinney's 2018). The Court has several dispositional alternatives after a trial or towards settlement of a family offense matter. See NY Fam. Ct. Act § 841(McKinney's 2018). The Court may dismiss the petition, suspend judgment for up to six months, place a respondent on probation for up to one year with certain conditions, enter an order of protection on behalf of the petitioner, and direct restitution up to $10,000. See id.

In criminal matters, ACDs are permitted to settle cases, including those alleging family offenses. See generally NY C.P.L. §§ 170.55, 170.56 (McKinney's 2018). ACDs are a termination of a case, the terms of which may involve the issuance of an order of protection and/or the direction of compliance with certain conditions. See generally NY C.P.L. § 170.55 (McKinney's 2018). Upon consent of the parties, an ACD is entered and the proceeding is adjourned for a period of time in furtherance of the interests of justice. See NY C.P.L. § 170.55(2) (McKinney's 2018). Where an order of protection is entered in conjunction with an ACD, the order of protection exists until the case is dismissed. See NY C.P.L. § 170.55(3) (McKinnney's 2018) (court may issue order of protection in criminal ACD); NY C.P.L. § 530.12 (McKinnney's 2018) (criminal orders of protection in family offense matters); NY C.P.L. § 530.13 (McKinnney's 2018) (criminal orders of protection in non-family offense matters). A matter may be restored to the calendar upon a recipient's failure to comply with the terms of an ACD. See NY C.P.L. § 170.55(2) (McKinney's 2018). Since an ACD is not a conviction or an admission of guilt, see NY C.P.L. § 170.55(8) (McKinney's 2018), parties who successfully complete an ACD suffer no adverse criminal consequences. See NY C.P.L. § 170.55(8) (McKinney's 2018). Although the family court has concurrent jurisdiction with the criminal court in family offense matters, there is no correspondent provision for ACDs within the Article 8 dispositional statute. See NY Fam. Ct. Act § 842 (McKinney's 2018); see also NY C.P.L. § 170.55 (McKinney's 2018) (criminal ACD statute); NY Fam. Ct. Act § 315.3 (McKinney's 2018) (ACD is dispositional alternative in quasi-criminal juvenile delinquency proceedings in family court).

See NY C.P.L. § 170.55(4) (McKinney's 2018) (criminal family offense ACD); see also NY C.P.L. § 530.11 (McKinney's 2018) (procedures for family offense matters)

In family offense cases, for a period of one year. See NY C.P.L. § 170.55(2) (McKinney's 2018); see also NY C.P.L. § 530.11 (McKinney's 2018).

See NY Fam. Ct. Act § 812(1) (McKinney's 2018); NY C.P.L. § 530.11(7) (McKinney's 2018). --------

The Court has used temporary orders of protections to resolve family offense petitions for quite some time, and it has proven to be quite effective. Rarely, if ever, do parties come back to court prior to a case's dismissal on its scheduled adjourn date for any reason. Although the Family Court Act (hereinafter "FCA") does not provide for ACD-type dispositions for family offense matters, the FCA does not preclude such a resolution either. The Court fashioned this manner of settling cases to fill that void since oftentimes the parties are searching for a practicable solution that benefits all parties where there appears to be none.

Agreeing to dismiss a family offense case upon the expiration of temporary orders of protection achieves a satisfactory outcome for all concerned in many ways. It avoids needless further litigation which can be both time consuming for the court and costly to the litigant. The adjournment provides a cooling off period whereby the parties have a chance to spend time apart as directed by the order of protection, and to begin to regroup and heal. Issuing a temporary order of protection avoids any adverse effects that a final order may have upon a party, including possible reputation and employment consequences. The scheduling of an end time to the matter not only avoids needless trials, but also eliminates further court appearances which require time, trouble and expense. Moreover, avoiding a trial relieves the parties themselves from having to testify about sensitive personal issues, thereby exacerbating their already strained relationship. The parties need not bring witnesses to testify who may be close to both parties and reluctant to testify because it would force them to choose sides. Perhaps, most importantly, this type of arrangement does not infringe upon the parties' rights since they are free to file new petitions based upon fresh facts, or violations of their temporary orders of protection which are in place at the time of the settlement.

This constitutes the decision, opinion, and order of the Court. ENTER: Dated: January 5, 2018 Jamaica, New York /JM _____________________________________ JOHN M. HUNT, JUDGE FAMILY COURT - QUEENS COUNTY