What is an abuse of discretion motion? For that matter what is a motion?

Posted over 3 years ago. Applies to Massachusetts, 1 helpful vote



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 to children. Within the bounds of good judgment, the request in the motion is only limited to the imagination of the party making the request. This guide describes motions for matters involving DCF abusing their discretion.


Why bring an abuse of discretion motion?

A judge cannot order DCF to accomplish matters that they are tasked to do unless DCF is not doing the task or not doing the task properly. The first step in the abuse of discretion process involves convincing a judge that there is enough evidence that DCF is not doing what they are supposed to do and hence are abusing their discretion. It is usually necessary to first convince a judge that there is some rule, law or regulation that DCF is not following. If the moving party is able to convince a judge that there is some rule, law or regulation that DCF may not be following, the motion will be scheduled for a second hearing where evidence will be heard. It will be at the second hearing that the judge will determine whether DCF abused their discretion.


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.



None of the information or materials posted above is intended to constitute legal advice. Viewing this outline does not constitute an attorney client relationship. Local counsel should always be consulted before contemplating any legal action. The above information is general in nature and should not be undertaken without the express advice of an attorney of your choosing.

Additional Resources

Rob McCarthy is an attorney licensed to practice law in the Commonwealth of Massachusetts, before the military courts of the United States, before the United States Court of Military Appeals and before the federal district court of Massachusetts. He is a former officer in the U.S. Marine Corps and was a candidate for the U.S. Congress from Massachusetts in 2010. He may be reached at 781-816-9001.

Attorney Rob McCarthy

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