N.Y. Comp. Codes R. & Regs. tit. 22 § 205.71

Current through Register Vol. 46, No. 51, December 18, 2024

Section 205.71 - Preliminary probation conferences and procedures (family offenses)

(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.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 205.71