I read with interest the recent article entitled Making a Case for Change: Why ACDs Should Become a Dispositional Alternative in Family Offense Proceedings. I share the author’s plug for an amendment of Article 8 of the Family Court Act to include ACDs as a dispositional alternative. Nevertheless, I was surprised to see that the article did not mention a dispositional alternative that meets many of the same goals as an ACD: the suspended judgment. Indeed, unlike an ACD (which would take an amendment of the statute), the suspended judgment is hidden within the plain sight of the statute: FCA section 841(b).
This section expressly allows for a “suspended judgment for a period not in excess of six months.” Moreover, the Uniform Rules for the Family Court (22 N.Y.C.R.R. section 205.74(a)) expand upon the terms and conditions of the suspended judgment, many of which would be the same or similar conditions as would (presumably) exist with an ACD.
As expounded in the seminal treatise “New York Law of Domestic Violence” (West Publishing, Breger, Kennedy, Zuccardy & Elkins), section 3:48 thereof, the suspended judgment is particularly useful in cases where respondent’s concern is that an alleged violation will either result in a mandatory arrest or subject respondent to criminal prosecution. I have personally used the suspended judgment as a dispositional alternative in cases where my client was in law enforcement and had a concern about the impact on his/her employment of an outstanding order of protection. I’ve also used suspended judgments in cases where the petitioner’s primary concern is to have, essentially, a code of conduct, and where the respondent’s concern is the petitioner’s ability to use the order of protection more as a sword rather than as a shield.
And while the suspended judgment-unlike an ACD-would require respondent’s consent that a family offense finding be entered, it does not appear to require admission of any of the outstanding allegations. Thus, such consent would work similarly to consents to findings of neglect done pursuant to FCA 1051-a.
That said, while an alleged violation of a suspended judgment would not result in a mandatory arrest, it can result in the matter being restored for the issuance of an actual order of protection. Indeed, because the order requires language notifying respondent s/he may be held in contempt for a violation of any of its terms (22 N.Y.C.R.R. section 205.74(e)), there is also the possibility of the respondent being held in contempt and incarcerated for a period of up to 6 months.
But because the original suspended judgment does not result in an order of protection, and because the terms and conditions are more expansive than those connected with an order of protection, the “suspended judgment provide(s) the court with greater flexibility than is permitted under the more definite terms of a final order of protection.” (New York Law of Domestic Violence, section 3:48).
As such, I submit that more family law practitioners should give thought to the suspended judgment as a dispositional alternative in Family Court Act Article 8 cases.
David Bliven is a family law practitioner.