Legal Question in Family Law in New York

Vacating a Plea

I'm in Family Court/IDV with an on going custody/visitation battle for my daughter. I previously was awarded joint custody and liberal visitation, but the mother still refused to let me have contact with my daughter. I put in for an order of violation. When I got the cops to serve her with the papers, she went down to IDV Familty Court Unit and got an Order of Protection again me faulsly accusing me of stalking and harrassing her. On my next scheduled appointment to pick up my daughter, I was served by her aunt with an Order of Protection, that had my daughters name attached to it. I then called the Police to find out wheathe or not I was allowed to get my child. The cops said that I would have to go to family court and ask for the order of protection to be modified. Before leaving the police told me to wait and see if I would be allowed to be my daughter, being that they are familiar with our ongoing situation. She then began screaming at the police accusing them of favoring me and demanded that I be locked up for volating the Order of Protection. She called the precint and spoke to the head of demastic violance. I got locked up when they came. My legal aid lawyed convinced me to plea guilty. Can that Plea be vacated?


Asked on 10/09/06, 4:55 pm

1 Answer from Attorneys

Re: Vacating a Plea

First good advice... never plead Guilty to something you aren't guilty of. Now, when you go to court to TRY to get visitation with your child restored, you have a criminal history of violence and violating restraining orders.

Second good piece of advice: get a lawyer to represent you.

Once accusations like these start, they do not stop unless they are defeated in Court. As a general rule, no male party can win a domestic violence restraining order petition without a lawyer; the courts and prosecutors know that a large percentage of applicants for protective orders, both male and female, "exaggerate" and that there is a both a financial incentive and custody incentive to do so during divorce and support proceeding; everyone also knows that parents tend to utilize children as pawns to get even with each other for past wrongs in the relationship... the problem is that the prosecutors and Courts cannot tell who is telling a lie and who is telling the truth, and cannot take a chance at being wrong so an Order will ALWAYS be entered against the male party just in case. In 12 years, I have never seen a court NOT grant one when the male was unrepresented. I am not knocking the system; there is tremendous pressure to assume the worst case scenario when these cases are presented because being wrong COULD, literally, be a matter of life and death.

Custody battles generally brings out the worst behaviour in people and it appears that your situation is already bad and headed to worse. These types of cases do not come with a "do over" clause, so you have some hard work ahead of you. Get a lawyer who specializes in Divorce/Custody and criminal work.

Best of luck.

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Answered on 10/09/06, 5:20 pm


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