Current through Register Vol. 46, No. 39, September 25, 2024
(a)
Any person seeking to file a family offense petition under article 8 of the
Family Court Act may first be referred to the probation service concerning the
advisability of filing a petition.
(b) Upon such referral, the probation
service shall inform such person:
(1) concerning the procedures available
for the institution of family offense proceedings, including the information
set forth in subdivision 2 of section
812 of the
Family Court Act; and
(2) that the person seeking to file a
family offense petition is entitled to request that the probation service
confer with him or her, the potential respondent and any other interested
person concerning the advisability of filing a petition requesting:
(i) an order of
protection;
(ii) a
temporary order of protection; or
(iii) the use of the court's conciliation
procedure.
(c) The probation service, at the request
of the person seeking to file a family offense petition, shall commence
conducting preliminary conferences concerning the advisability of filing a
petition with that person, the potential respondent and any other interested
person no later than the next regularly scheduled court day. The probation
service shall permit any participant who is represented by a lawyer to be
accompanied at any preliminary conference by the lawyer, who shall be
identified by the probation officer to the other party, and shall not
discourage any person from seeking to file a petition.
(d) At the first appearance at a
conference by each of the persons listed in subdivision (c) of this section,
the probation service shall inform such person concerning the function and
limitations of, and the alternatives to, the adjustment process, and that:
(1) the purpose of the
adjustment process is to attempt through conciliation and agreement to arrive
at a cessation of the conduct forming the basis of the family offense complaint
without filing a petition in court;
(2) the probation service may confer with
the persons listed in subdivision (c) of this section if it shall appear to the
probation service that:
(i)
there is a reasonable likelihood that the adjustment process will result in a
cessation of the conduct forming the basis of the family offense complaint;
and
(ii) there is no
reasonable likelihood that the potential respondent will, during the period of
the adjustment, inflict or threaten to inflict physical injury on the person
seeking to obtain relief, or any other member of the same family or household,
if the filing of a petition is delayed;
(3) the probation service is not
authorized to, and shall not, compel any person, including the person seeking
to file a family offense petition, to appear at any conference, produce any
papers or visit any place;
(4) the person seeking to file a family
offense petition is entitled to request that the probation service confer with
him or her, the potential respondent and any other interested person concerning
the advisability of filing a family offense petition under article 8 of the
Family Court Act;
(5)
if the assistance of the probation service is not requested or, if requested,
is subsequently declined, the person seeking to file a family offense petition
is entitled to have access to the court at any time, even after having
consented to an extension of the adjustment period, and may proceed to file a
family offense petition;
(6) no statements made during any
preliminary conference with the probation service may be admitted into evidence
at a fact-finding hearing held in the Family Court or at any proceeding
conducted in a criminal court at any time prior to conviction;
(7) the adjustment process must
commence within seven days from the date of the request for a conference, may
continue for a period of two months from the date of that request and may be
twice extended by the court for two periods of up to 60 days each upon written
application to the court containing the consent and signature of the person
seeking to file a family offense petition;
(8) if a petition is filed, a temporary
order of protection may be issued for good cause shown, and unless a petition
is filed, the court may not issue any order of protection;
(9) if the adjustment process is
not successful, the persons participating therein shall be notified in writing
of that fact, and that the person seeking to file a family offense petition is
entitled to access to the court for that purpose;
(10) if the matter has been
successfully adjusted, the persons participating therein shall be notified in
writing of that fact; and
(11) if the adjustment of the matter
results in a voluntary agreement concerning the cessation of the offensive
conduct forming the basis of the family offense complaint:
(i) it shall be reduced to writing by the
probation service, signed by both parties to it and submitted to the Family
Court for approval;
(ii) if the court approves it, the court
may, without further hearing, enter an order of protection pursuant to section
823 of the
Family Court Act in accordance with the agreement; and
(iii) the order when entered
shall be binding on the respondent and shall in all respects be a valid
order.
(e) If the adjustment process is not
commenced, the probation service shall give written notice to the persons
listed in subdivision (c) of this section that:
(1) the adjustment process was not
commenced, and the reasons therefor;
(2) the person seeking to file a family
offense petition is entitled to access to the court for that purpose;
and
(3) if applicable,
the adjustment process was not commenced on the ground that the court would not
have jurisdiction over the case, and the person seeking to file a family
offense petition may test the question of the court's jurisdiction by filing a
petition.
