What is an abuse of discretion motion?

What is an abuse of discretion motion

What is an abuse of discretion motion? For that matter you may be asking, what is a motion?

What is a motion

A motion is simply a request, usually in writing, asking a judge to do something. In Department of Children and Family (DCF) cases a parent or child may request, for example, that a judge order DCF to provide visits, increase visits or provide services. Within the bounds of good judgment, the request in the motion is only limited to the imagination of the party making the request.

Why bring an abuse of discretion motion

So why would someone bring a motion for an abuse of discretion? Why not just bring the request straight to the judge without bringing a motion for an abuse of discretion first? Believe it or not, judges do not have unlimited power.

Do judges have unlimited power

The law gives agencies and departments of the government the power to make decisions without interference from courts. The power of a department to make its own decisions is described as "discretion." Like judges, departments of the government do not have unlimited power or "discretion." Departments of the government are obligated to follow their own rules and regulations. Case law states that when DCF is granted custody of a child decisions related to normal incidences of custody are within the discretion of DCF. Normal incidences of custody have been described as the power to determine where the child will live, medical care, education and to control visits.

Agencies must follow rules

A court can interfere in a decision of a government department like DCF when that department has not followed its own regulations. When a department has not followed its own rules it is said to have committed an "abuse of discretion." An abuse of discretion motion is a written document submitted to a court arguing that a government department may have made a decision that was not within the bounds of its own regulations. The written motion is usually accompanied by a affidavit detailing how the department abused its discretion.

Abuse of discretion may require two hearings

If the court hears the motion and agrees that there is enough evidence to justify that a department may have "abused its discretion" some courts may schedule another hearing. At the second hearing a judge will listen to evidence presented by the parties and make a decision whether the department has "abused its discretion." If the judge determines that the department has abused its discretion, the judge may order the department to follow its regulations. For example if DCF is not providing visits in violation of its own regulations, a judge may order DCF to follow its regulations regarding visits.

*The above information is very general in nature and should not be considered or relied upon as legal advice. If the reader has a legal problem immediately consult an attorney for specific legal advice.

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