New York State Family Court Act Article 8 establishes a civil proceeding to protect certain classes of individuals from violence. Family Court Act §812 specifies those individuals who may file for an order of protection in Family Court as (1) persons related by consanguity or affinity, (2) person legally married to one another, (3) persons formerly married to one another, regardless of whether they still reside in the same household, (4) persons who have a child in common regardless of whether such persons have been married or resided together at any time, or (5) person who have been or are in an “intimate relationship.”

Family Offense proceedings are designed to “stop the violence, end family disruption and obtain protection.” See N.Y. Fam. Ct. Act §812(2)(b). The court has several dispositional alternatives after a finding is made that a family offense has occurred. N.Y. Fam. 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. Id.

Many criminal court judges and practitioners are familiar with the term “ACD” or adjournment in contemplation of dismissal. In criminal matters, ACDs are dispositional alternatives, including those alleging family offenses. See N.Y.C.P.L. §530.11; N.Y.C.P.L. §170.55(4). In Criminal Court, ACDs are the conclusion of a case. The terms of the ACD may involve the issuance of an order of protection and/or the directive to comply with certain specified conditions relevant to the furtherance of justice. See N.Y.C.P.L. §170.55. As a result, upon consent of all parties, the criminal court may enter an ACD in family offense cases for a period of up to one year in furtherance of the interests of justice. N.Y.C.P.L. §530.11; N.Y.C.P.L. §170.55(2). If an order of protection is issued in connection with the ACD the order exists until the case is dismissed.

However, if the defendant fails to comply with a term of the ACD the matter may be restored on motion to the court's calendar. It is important to note that an ACD is not a conviction or admission of guilt in any way, making it a sought-after outcome for defendants. N.Y.C.P.L. §170.55. Individuals who successfully complete the terms of an ACD suffer no adverse criminal consequences.

The Family Court and Criminal Court have concurrent jurisdiction as it pertains to family offense matters. See N.Y. Fam. Ct. Act §812; N.Y.C.P.L. §530.11(7). Strangely, and for reasons unclear to this court, there is no corresponding provision for ACDs within the Article 8 dispositional statute. N.Y. Fam. Ct Act §842.; N.Y.C.P.L. §170.55. Of note, however, is that the ACD dispositional alternative does exist in the quasi criminal juvenile delinquency proceedings in Family Court and in abuse and neglect matters under Article 10 of the Family Court Act. See N.Y. Fam. Ct Act §315.3; see also N.Y. Fam. Ct. Act §1039.

The absence of an ACD as a Family Court dispositional alternative creates difficulties that prevent family offense cases from moving forward smoothly and efficiently. Often, respondents in these cases are unwilling to accept final orders of protection, even without a finding of wrongdoing, because of the long-lasting implications that impact employment, housing, immigration status and not least of all, the ego of the litigant. (Individuals with final orders of protection will face increased scrutiny in immigration matters. The issuance of an FOP impacts the “good moral conduct” prong in not only applications for legal permanent residence but also citizenship applications. Additionally, the risks for the undocumented are even greater as Immigration Customs and Enforcement can and has picked up litigants who have had final orders of protection entered against them and placed them into deportation proceedings.) Instead, respondents will often choose to gamble and go to trial in the hopes of securing a favorable outcome.

In recognition of the need for an ACD mechanism to resolve Family Offense cases, this court has utilized temporary orders of protection as a de facto equivalent. Litigants will enter into an agreement that the temporary order of protection shall be adjourned for an agreed-upon period. During that time, the order is in full effect and the petitioner loses no rights associated with filing violations, calling the police to enforce the order, etc. The respondent, however, never has a final order entered against them. On the agreed-upon date, the matter will appear on the court's calendar and without the appearance of any party or attorney, the matter will be deemed withdrawn. It has proven to be a peaceable way to smoothly and efficiently resolve family offense matters.

There are obvious benefits to be had by both parties in this particular resolution. First, neither party must continuously return to court, losing time and money and risking job loss. Second, the petitioner has an order of protection in their favor that is fully enforceable and they lose no right to file violations. Moreover, they are free to file new petitions based on new facts if they were to unfortunately arise. Third, the Respondent does not have a final order entered against them which could impact future employment, immigration status or standing in the community. Lastly, both parties do not have to continue to suffer through the stress of court appearances and the trauma of a trial. This period of adjournment allows individuals to gain closure, peace and allows healing to begin. In this court's experience, the number of litigants who actually return on violation petitions is miniscule, proving that the practice of the de facto ACD has merit and should be considered. (Until Article 8 is amended to include the ACD as a dispositional alternative some judges may be reluctant to engage in this practice due to an overabundance of concern for standard and goal compliance. This court had 838 filings as of Nov. 27, 2018. Of those cases only 10 percent are beyond standards and goals, illustrating that the impact to standards and goals is marginal. This court has found that litigants are more than happy to resolve their cases with a period of adjournment that is sometimes as long as a few months.)

Considering the recent Court of Appeals decision in People v. Saylor Suazo, 2018 NY Slip Op 08056, an ACD as a dispositional alternative would seem to serve another practical purpose when the alleged family offense is a crime of moral turpitude.  In Suazo, the court held that a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation is entitled to a jury trial under the sixth Amendment. In doing so, the court stated that “deportation is a sufficiently severe penalty to puncture the six-month demarcation between serious and petty offenses because the loss of liberty associated therewith is analogous to that inherent in incarceration and because deportation—which may result in indefinite expulsion from the country and isolation from one's family—is frequently more injurious to noncitizen defendants than six months or less of imprisonment.” Given the language in Suazo, one can assume it is just a matter of time until similarly situated family offense respondents argue that the same right to a jury trial afforded to criminal defendants, logically extend to family court proceedings. (Note, this right to a jury trial may attach not only in family offense proceedings where the findings could result in what is known as a “crime involving moral turpitude” but also in neglect, abuse and juvenile delinquency cases as well.) An ACD dispositional alternative in appropriate family offense cases could easily render that argument moot to the satisfaction of all concerned.

John M. Hunt is a former judge of the New York City Family Court, Queens County. His former court attorneys, Support Magistrate Sondra Toscano and Rosa Maria Astuto, assisted in the research and writing of this article.