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Q: domestic relations ( Answered,   1 Comment )
Subject: domestic relations
Category: Relationships and Society > Law
Asked by: trimmer72-ga
List Price: $5.00
Posted: 01 Jan 2003 09:23 PST
Expires: 31 Jan 2003 09:23 PST
Question ID: 135982
is it possible for the plantiff in a domestic relations/child support
enforcement case to have the case dismissed because the child was to
be adopted, then change her mind and pickup where she had the case
dismissed...isn't there some kind of double jeopardy law out there
that protects people from being charged for something and made to pay
then if they are granted clemency by either the state or the plantiff
and the  case is dropped then the charges cannot be brought back up
against them...once you have been convicted of s crime then you cannot
be convicted of it again - once you have been made to pay support and
the case was closed as per request of the plantiff she cannot just
decide to "stick it to" the defendant because she has malicious
emotions directed toward the defendant?
Subject: Re: domestic relations
Answered By: weisstho-ga on 04 Jan 2003 14:40 PST
Dear Trimmer,

I assume from your question that the plaintiff is NOT the state or one
of its agencies, but rather is the mother of your child.  If this is
not the case, please let me know through a REQUEST FOR CLARIFICATION,
and I will adjust my answer as necessary.

First, let’s try to define some of these terms, which can be confusing
in the best of times:

Dismissal is an order or judgment by the court which finally disposes
of an action, suit, motion, etc. without trial of the issues involved.
There are various kinds of dismissals: voluntary and involuntary, with
and without prejudice (discussed below) to mention just a few.

Double Jeopardy is only applicable in criminal law. Double jeopardy is
a Fifth Amendment guarantee, enforceable against the states through
the Fourteenth Amendment, and protects against a second prosecution
for the same offense after acquittal or conviction, and against
multiple punishments for the same offense.

Clemency relates to criminal acts where a governor of state commutes a
sentence or grants pardons.


An issue of domestic relations and child support as you are explaining
relates to the civil law and not to the criminal law; therefore, the
doctrines of “double jeopardy” and “clemency” don’t apply. NOW THAT IS
NOT TO SAY THAT THERE ARE NOT PROTECTIONS – it is just that the civil
law approaches these topics a bit differently.


May I then, please, rephrase your question into civil legalese?  



The question then becomes “was the original action dismissed “with
prejudice” or “without prejudice”?

A dismissal “without prejudice” means that that action was dismissed
but the complainant (plaintiff) may sue again on the same cause of

A dismissal “with prejudice” means that there was a final disposition
and the plaintiff is barred from bringing or maintaining an action on
the same claim or cause. It is “res judicata” as to every matter
litigated, which means that it cannot be brought again.

This site explains some of the distinctions:

This site explains res judicata:



If the original action was dismissed without prejudice, she probably
can bring the action again; if it was dismissed with prejudice, she
probably cannot.

This distinction, with or without prejudice, is no doubt indicated on
the court form showing a dismissal – a court form either prepared by
the plaintiff or by the court itself. If you don’t have the form, the
court certainly will have it – and the clerk should be able to tell
you whether it was with or without prejudice.

Defenses:  If it was dismissed “with prejudice” then that by itself
should be a very good defense to a new or subsequent action. If it was
dismissed “without” you may still have defenses to a new action by
showing that the dismissal / lapse of time / reinstituting of charges
disadvantages (prejudices) your position.  This prejudice can either
apply to the entire case or matter before the court (called claim
preclusion or res judicata) or to just one or more issues that are
part of the larger claim (called issue preclusion or collateral

Other defenses could include statutes of limitation.


It certainly sounds as if you have been disadvantaged by all of this
maneuvering by her. Although a judge is probably (though not
certainly) not going to let you get out of an obligation to pay child
support, the judge may be sympathetic to your being jerked around by
her filing complaints and motions for show cause. You have actual
prejudice:  You are losing work, losing sleep, having stress, paying
legal fees, paying Google Answers  8-)  , etc. She can’t maliciously
use the system to harass you – and she should not be using the court
to jerk you around by telling you one thing last month and something
new this month.

I apologize for having to toss out all of the legal terms, but they
are important – very important. Particularly when people are forced to
have to defend themselves in court, it many times becomes these arcane
concepts that cause them to lose. Obviously, the concepts here are
pretty technical and, if you can afford one, an attorney would be a
tremendous asset in a case and with issues such as this.

I hope that I have helped. If you would like, please feel free to ask
for clarification and I will get right back to you.

Best of luck,


Search strategy:

Black’s Law Dictionary for definitions
Subject: Re: domestic relations
From: meego-ga on 02 Jan 2003 21:54 PST

This is not a subsitute for legal advice, but having worked for a
family law attorney, and having some life experience in this area, I
will comment. Unless the child is adopted(I'm assuming USA),and I mean
a completed adoption with all waiting periods expired, you are still
the child's father. The law doesn't care what the mother's motives
are. You were not charged with a crime, that is I'm assuming this
child was not a product of rape; therefore "double jeopardy" has
nothing to do with this. This is a civil case. Once your paternity has
been established by the court, you are legally a father, like it or
not. And, unless the child is adopted in the future (such as if the
mother marries and the step-father adopts), you will be this child's
father until she/he reaches majority.

Now for my personal advice: You may not be correct about the mother's
motives, but even if you are, your child should not have to suffer
being ignored or hated just because you dipped your wick without
protection. I suggest you face the music and learn how to be a father.
This does not require you to like the mother of your child, or submit
to her manipulations, only that you not take your anger and immaturity
out on an innocent child by making him or her feel unloved, unwanted,
rejected, etc. My son could explain to you what that feels like.

So suck it in pay the piper and get over it. You made a mistake, don't
make your child pay for it with their happiness and self-esteem. Good


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