The guide was originally prepared and distributed as a public education project of the Fund for Modern Courts. This locally adapted version has been prepared by the members of the Tompkins County Family Court Advisory Council.
FAMILY COURT AND YOU
The family court deals primarily with the problems of children and their families. The court hears cases involving:
- abuse and neglect of children
- custody and rights to visit children
- family offenses including abuse of spouses and other family members
- children who may have committed crimes (Juvenile Delinquency)
- children who are not charged with crimes but who may need supervision, treatment or placement (PINS)
paternity
- support of children, spouses and ex-spouses
- planning for children who have been in foster care for a year or longer
- termination of parental rights
When a person or an agency wants to bring a case into the Family Court, the first step is to file a petition. The person or agency filing a petition is called the Petitioner. The person against whom the petition is filed is called the Respondent.
Petition forms may be obtained from the Family Court Clerk's Office. The petition is a sworn statement giving the facts of the case the Family Court is being asked to decide. If you are not represented by a lawyer, you will need to fill out the petition yourself. In juvenile delinquency cases, the county attorney will draw up the petition. If possible, you should consult with a lawyer before filing a petition. The petition must be filed with the Family Court Clerk. The Clerk will make sure that the petition is put on record (filed) correctly and will set a date for the first hearing of the case.
In certain juvenile delinquency cases which do not involve serious violent actions, probation intake workers can interview the person who made the complaint, the police officer and the accused child to see if the matter can be settled without going through the court and to decide if the child should be sent home or temporarily detained. No one can be forced to talk to the probation workers at this time. What is said in the interview will not be disclosed unless there is a finding of delinquency by the court.
INITIAL APPEARANCE
(First Hearing)
At the first court proceeding - the Initial Appearance - the judge will briefly review the petition and explain the charges or demands for relief. The judge will also explain what are the rights of the parties involved in the cases, unless the parties are represented by lawyers. In certain cases, the judge will assign a lawyer for a person who cannot afford to pay for one (see below, "Who Can Get a Lawyer") and may issue a summons for the other person to appear. In certain specific circumstances involving serious charges, the judge may order a warrant of arrest.
At the conclusion of the Initial Appearance, the judge will usually set a date for the lawyers to meet with the judge's law clerk to discuss the petition and whether the matter may be settled by agreement between the parties and without the need for a trial. If the petition cannot be settled by agreement, the court will schedule the case for trial.
WHO CAN GET A LAWYER
The parties in most Family Court proceedings have the right to have a lawyer. You are free to hire a lawyer of your choosing. If your particular case is one where you have the right to a lawyer, but you cannot afford to pay for your own lawyer, then the court will usually assign one to the represent you.
In most cases, children are entitled to legal help in the Family Court. The judge will assign a lawyer called a law guardian for the child. There is no charge for the help of a law guardian.
In juvenile delinquency cases, the facts of the petition are presented by the assistant county attorney. Assistant district attorneys present cases involving serious violent offenses.
In contested paternity or support cases, the Department of Social Services will represent the custodial parent regardless of income. The court will assign a lawyer to a man who denies paternity or any person who is charged with violation of a support order if that person cannot afford a lawyer.
YOUR CASE
You must appear in court each time on the date and at the time set. If you are the Petitioner (you filed a petition) and you fail to appear as ordered, the judge may dismiss your petition without further hearings. If you are the Respondent (a petition was filed against you) and you fail to appear as ordered, the judge may take your default and grant the petition without further hearings. Sometimes the court can have people arrested if they do not come to court when they are told.
On the day of your court hearing, make sure you are on time. If for any reason you cannot make it, let your lawyer know in plenty of time so that he or she can ask the court to set the case for another day. If you have lost the information about your court date, call your lawyer or call the Family Court Clerk's Office. If you do not know where to go in the courthouse on your hearing date, ask at the security or information desk.
TYPES OF CASES IN FAMILY COURT
You or your child may be involved in one of these types of cases:
Child Protective Proceedings (N petition)
Child abuse and neglect petitions may charge that the parent, guardian or a person legally responsible for a child has neglected or abuse the child. Neglect and abuse may include causing emotional or physical harm or risk of harm to the child. It may also include failing to protect a child from harm caused by other people. The charge of abuse or neglect must be proven at a fact-finding hearing held in Family Court. If the case is not proved, the child must be returned to the parent or guardian. If the court finds that abuse or neglect occurred, it may issue an order requiring the removal of the child from the home for a period of up to twelve months. The order may also direct the parent or guardian to participate in programs and services designed to help eliminate the problems that caused the abuse or neglect. At the end of twelve months, the child may be returned home, the Department of Social Services may ask for an extension of the child's placement or the Department of Social Services may file a petition to terminate parental rights (see "Permanent Neglect", below).
A child may also be removed from the home before a petition is filed. This may happen when a child is in a situation that is a danger to the child's life or health. If a child is removed from the home before a petition is filed, the parent must be notified immediately. The Department of Social Services must then promptly file a petition in Family Court. The parent or guardian of the child may request an expedited court hearing, called a Return of Child hearing, to decide whether the child should be returned to the home.
Sometimes a child is removed from a home with the permission of the parent or guardian. Unless the parent or guardian has signed a paper allowing removal, the party has a right to a hearing on the child's removal from home.
Custody and Visitation (V petition)
Having custody of a child means that a person is legally responsible for the care of the child. Visitation rights are sometimes given by the court to people who no longer have custody of their child, but have the court's permission to see the child at certain times.
The judge, after hearing all sides of the case, will decide who should have custody of the child, and sign an official court paper called a custody order.
The judge may also sign an order of visitation, which is an official court paper saying that the person who has custody must allow another person to visit the child under certain circumstances.
Family Offense (O petition)
A family offense petition may claim that a person hurt or threatened a member of his or her family or household. After the petition is filed, a judge may sign an official court paper called a Temporary Order of Protection. This orders the person charged to immediately stop harming or threatening the family or household member and may even order a family member to be removed from the home. The Temporary Order of Protection remains in effect for 90 days or until the court makes another order, whichever comes first.
A family offense petition follows the same steps as discussed above: Initial appearance, fact-finding hearing and dispositional hearing. If the allegations of the petition are proved at the fact-finding hearing, the judge may consider different alternatives at the dispositional hearing when determining what should be done. For example, a Permanent Order of Protection may be issued to replace the Temporary Order of Protection. A Permanent Order of Protection remains in effect for a year and violation of its terms may result in the court ordering a jail sentence of up to six months.
A judge may also grant custody to one party and/or determine whether visitation is appropriate and under what conditions.
Juvenile Delinquency -- JD (D or E petition)
A juvenile delinquent is a person between the ages of 7 and 16 who commits an act that would be a crime (a misdemeanor or felony) if it were done by an adult. A 13, 14, or 15 year old who commits certain serious, violent acts may be treated as an adult in a criminal court or the criminal court may remove the case back to Family Court. In these serious cases where the actions are called designated felony acts, the District Attorney's Office will be the agency who presents the case against the juvenile.
If the case will be heard in Family Court, a date and a time will be set for an Initial Appearance. The case will then proceed as discussed above -- through fact-finding and dispositional hearings.
If the facts alleged in the petition are proved and the child found to be a juvenile delinquent, there are several options available to a judge at the dispositional hearing. A juvenile delinquent may be confined in an institution, placed in a group home, put under probation supervision or may be granted a conditional discharge.
If the judge decides that the child is a juvenile delinquent, there is no criminal record against the child. However, Family Court, Probation and police records exist.
Persons in Need of Supervision -- PINS (S petition)
A person in need of supervision (PINS) is a person between the ages of 7 and 16 (up to 18 starting 11/01) who does any or all of the following:
- does not attend school;
- behaves in a way that is dangerous or out of control;
- often disobeys parents, guardians, or other authorities; and/or
- possesses marijuana
A PINS petition may be filed (once written permission has been received from the Probation Department) to ask the Court at the dispositional hearing to order treatment or supervision for the child. Like a Juvenile Delinquent, a PINS may be confined in an institution, placed in a group home, put under probation supervision, or may be granted a conditional discharge.
Paternity (P petition)
A paternity petition is brought to the Family Court to have an official decision as to whether or not a man charged is the father of an out-of-wedlock child. Often the person alleging paternity or the person accused of being the father of the child asks that a blood test be made, or it may be ordered by the court. Either party, or the court, may request that a further test known as an HLA test be made. This test often shows that a man is or is not the father of the child, but the costs of the test may be substantial. (In some instances, the Department of Social Services will pay for the test.)
If paternity is proved or admitted, the judge will sign an Order of Filiation, an official court paper saying that the person is the father of the child. Then the hearing will continue to decide support rights. A man charged in a contested paternity proceeding may hire a lawyer to represent him or can have a lawyer appointed if he cannot afford one. If the mother is using the services of the Support Collection Unit at the Department of Social Services, that Unit will represent the mother regardless of income.
The Order of Filiation is extremely important because it establishes the fact that the man is related to the child. This relationship must exist if the father is to have any rights (visitation, custody) to the child, or the child is to obtain any benefits from the father (support, Social Security, etc.).
Permanent Neglect (B petition)
When a child has been removed from the parents' home due to certain serious problems, the Department of Social Services may decide that the problems cannot be resolved in a reasonable amount of time, usually 12 months from when the child was removed. In this situation, the Department may file a Permanent Neglect petition to request the court terminate the parent's parental rights and free the child for adoption.
A permanent neglect petition may also be filed if a parent abandons, severely abuses or permanently neglects a child or if the parent suffers from a mental condition that prevents the parent from properly caring for the child.
These petitions follow the same steps as discussed above, including an Initial Appearance, fact-finding hearing and dispositional hearing.
Support (UIFSA or F petition)
A wife, husband, relative, the Department of Social Services or certain other authorized agencies can bring a support petition in Family Court to have the court decide who is legally responsible for the support of a child, spouse or relative and how much support should be paid. When the person charged with support lives in another country, state or county, a UIFSA petition is filed. All parties in a support case have a right to a hearing.
The person charged with failing to obey (violating) a support order also has a right to a hearing. The judge will decide how much support will be ordered to be paid after deciding whether the person charged is responsible for support. To be sure support payments are made, the judge may order a payroll deduction or seizing of property or a judgment. If an order of support is disobeyed, the judge may send the person to jail.
Approval of Foster Care Placement (L petition) and Foster Care Reviews (K petition)
Sometimes a parent or guardian feels unable to care for a child and temporarily gives away the right to custody to a social service agency either for a short time or permanently. The agency which takes custody of a child must ask the court to review and approve that action. The parent must be given notice of this hearing and have his or her side heard in court. The law requires that when a child has been voluntarily placed in foster care for more than thirty (30) days, this hearing must take place and the parents must be told about the date of this hearing. The parents or guardian, a social worker, and a member of the agency involved should be at the hearing. The judge will decide if the placement is voluntary and necessary.
If a child is in foster care for twelve (12) months or longer, a case called foster care review will be filed with the Family Court. The Court will decide what to do with the child who is in foster care. This review could result in a parent losing the right to custody of his or her child, or it could result in a child being returned to his or her parent(s). If a child remains in foster care there must be another hearing in one year. The parent has a right to a lawyer at a foster care review.
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