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There Are No Plea Agreements in Family Court Because It Is Civil In Nature


Interviewer: What are the conditions for plea agreement in terms of domestic violence case?  What sort of bargains are offered?

James Abate: There are no offers in a domestic violence in the Family Court. There is no prosecutor, there is the plaintiff and there is the defendant.  In many cases, they have attorneys. Sometimes, people don’t have an attorney, you’re not entitled to an attorney in the Family Court because it’s considered civil in nature.  You will not be able to say “We want to plead this out”. What does in some cases happen is there is, they’re called restraints issued, civil restraints, where the parties agreed that they’re going to drop the case but that they agreed to basically stay away from each other and not commit acts of domestic violence against each other.  However, that can’t always be in effect.  The only way the judge can find an order of civil restraints is if there is a divorce docket opened.

There are Two Different Dockets in Family Court, the FV (Family Violence) Docket and the FD (Family Divorce) Docket

There are two different dockets in the Family Court, there is the FV docket for Family Violence and there is the FD for Family Divorce.  So, if there isn’t a divorce proceeding opened, then they cannot issue any sort of order.  So, under the FD you can bring the judge on civil restraints and if there is no divorce docket opened, the judge is going to say “I can’t sign that.  You can drop the case if you want.  I’ll allow you to drop the case”, and then, you had your agreement between each other but that’s a private agreement.  That is not something which I or the police will enforce. If there is a FD docket opened, then the judge will sign it and it can be enforced by the police.

In Case of Personal Injuries a Domestic Violence Case may be used to Get Compensatory Damages

The benefit of having an FD docket and the civil restraint is that in some cases, the parties do not want to hurt the abuser’s ability to make money for a number of reasons or maybe that they just want to go their separate ways, and it may also be that they may rely on the abuser for income and if they end up losing their job, that’s not going to be happening.  It can also be pulled over into a divorce proceeding and actually other issues are dealt with in the domestic violence order including custody of children, support and other ancillary issues such as payment of attorney’s fees and alike. Also, Damages, if there have been personal injuries, you can use the domestic violence case to get a compensatory damages against the party.  So, the domestic violence final restraining order hearing is a very powerful situation.

Children are Mostly Involved in DUIFS Issues Rather than Domestic Violence Cases

Interviewer: In a situation where a police officer goes to someone’s house, there are children in the house and people are taken aside, a police officer can question that child in a certain way?

James Abate: It’s usually the situation that’s going on between the two adults that is the problem. If the child is involved, that’s more of a DUIFS issues, that’s spelled D-U-I-F-S and that’s a Division of Using Family Services.  So, if it’s a child who’s being abusive, it’s sort of a different system than the domestic violence case. If there is danger to the children, if there are concerns over the child being exposed to someone that he shouldn’t be exposed to, then that they could very well be involved.

The Family Courts can Make Decisions Regarding Child Custody Regardless of Whether the Child/Children are Involved in the Domestic Violence Case

Interviewer: If the domestic violence case didn’t involve the child, there is no child involved in the situation but could parenting rights for an individual be taken away?

James Abate: Absolutely.  Taken away, restricted, there may be certain hoops you have to go through before you’ll be allowed to have any sort of interaction with the child and that it may — it require psychiatric counseling and treatment at first.  At some point, you may get supervised visits or it may be that if the two are not going to be living, there may not be a problem but because the two parents will no longer be living together, there may be an entry of agreements of when each parent will have custody of the children, so maybe that mother has Monday, Tuesday, Wednesday until the evening and then, the father takes him Wednesday, Thursday or Friday or a whole host of different arrangements, that can be part of the court’s decision.

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