IS THERE A RIGHT TO WITHDRAW?

by: Mace H. Greenfield

In Matter of Irene v. Anthony D., the family court held that the petitioner in a family offense proceeding has the unfettered right to withdraw the petition against the respondent at any time except when there is a danger to the children. When a petitioner seeks to withdraw a family offense petition against a respondent but the motion is denied by the court, and an order of protection on behalf of the children is issued due to the need to protect the children, the petitioner must enforce said order to insure the children’s safety and well being. Should the petitioner not enforce said order, the petitioner can be held liable under Article 10 of the Family Court Act, and face the possibility of the children being removed. It should be noted that, in Linda D. v. Peter D., the family court stated that when the petitioner does withdraw the petition against the respondent, the court may still award attorney fees to the petitioner.

© 1997 All rights reserved.