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

Family Court, Queens County, January 5, 2018

Ronna Gordon-Galchus for petitioner in the first above-entitled proceeding and respondent in the second above-entitled proceeding.

Jennifer Arditi for respondent in the first above-entitled proceeding and petitioner in the second above-entitled proceeding.

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 County 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' agreement and [*2]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.

Family Court Act article 8 establishes a civil proceeding to protect persons within intimate relationships from violence. Specifically, family offense proceedings were designed for the "purpose of attempting to stop the violence, end the family disruption and obtain protection." (Family Ct Act § 812 [2] [b].) The court has several dispositional alternatives after a trial or{**58 Misc 3d at 798} towards settlement of a family offense matter. (See Family Ct Act § 841.) 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.^[FN1] (See generally CPL 170.55, 170.56.) 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 CPL 170.55.) Upon consent of the parties, an ACD is entered and the proceeding is adjourned for a period of time^[FN2] in furtherance of the interests of justice. (See CPL 170.55 [2].) Where an order of protection is entered in conjunction with an ACD, the order of protection exists until the case is dismissed. (See CPL 170.55 [3] [court may issue order of protection in criminal ACD]; 530.12 [criminal orders of protection in family offense matters], 530.13 [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 CPL 170.55 [2].) Since an ACD is not a conviction or an admission of guilt, parties who successfully complete an ACD suffer no adverse criminal consequences. (See CPL 170.55 [8].) Although the Family Court has concurrent jurisdiction with the criminal court in family offense matters,^[FN3] there is no correspondent provision for ACDs within the article 8 dispositional statute. (See Family Ct Act § 842; see also CPL 170.55 [criminal ACD statute]; Family Ct Act § 315.3 [ACD is dispositional alternative in quasi-criminal juvenile delinquency proceedings in Family Court].)

The court has used temporary orders of protection to resolve family offense petitions for quite some time, and it has proved to be quite effective. Rarely, if ever, do parties come back [*3]to court prior to a case's dismissal on its scheduled adjourn date for any reason. Although the Family Court Act does not provide for ACD-type dispositions for family offense matters, the Family Court Act does not preclude such a resolution either. The{**58 Misc 3d at 799} 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.