Abuse and Neglect
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Do the Parents Need Lawyers to Represent Them?
#The parents or guardians against whom the petition is filed, called the "respondents", may hire attorneys to represent them in court, or ask the court to assign attorneys at no cost if they cannot afford to hire their own. Each respondent must have a separate attorney.
An attorney is also assigned to represent the child; this attorney is either called the "law guardian" or the “Attorney for the Child
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How Does the Court Case Begin?
#The petition and a summons must be served upon (delivered to) the parents or other persons legally responsible for the child's care to allow them to come to court and hear the case against them, and to present a defense. If the persons named in the petition are not the child's parents, but some other persons who are legally responsible for the child, then the parents must also be served with court papers so that they may appear in court if they wish to request temporary or permanent custody of their child. In some cases, other close relatives of the child may also appear in court.
There are no filing fees in Family Court.
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What Happens after the Fact-finding Hearing?
#If the court finds that the allegations have not been proven:
the court will dismiss the petition and return the child to his or her home.
If the court decides that the child has been abused or neglected:
A dispositional hearing will be scheduled so that the court may consider what to do in the best interests of the child.
Before the dispositional hearing, if the child has not already been removed from the home and the court finds that removal would be best for the child, the child will be removed and "remanded" to the agency's custody. The child may be placed in foster care or with other suitable persons until the court makes its final disposition.
The court may then order an investigation of the child's home and family or other reports. These reports are prepared to help the judge decide how best to protect the child.
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What Happens at the Dispositional Hearing?
#At the dispositional hearing, the court hears testimony and reviews reports recommending what should be done for the child. Possible dispositions include:
dismissing the action if the aid and assistance of the Court is not needed; or
releasing the child to the parents or guardian, with supervision and services provided by child-protective agencies; or
placing the child in foster care or with a suitable person or relative for a period of time, while services are provided to the parents to allow for a possible return of the child at a future date; or
final order of protection (may be until child’s 18th birthday); or
suspended judgement ( 12 months).
A child may be placed in foster care for a period of up to one year. The court has continuing jurisdiction, the child remains legally placed until each permanency hearing is complete and permanency is achieved. All cases of children placed out of their homes must remain on the family court’s calendar until permanency has been achieved. The court must pre-schedule all permanency hearings.
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What Happens at the Fact-finding Hearing?
#If the court finds that the allegations have not been proven:
the court will dismiss the petition and return the child to his or her home.
If the court decides that the child has been abused or neglected:
A dispositional hearing will be scheduled so that the court may consider what to do in the best interests of the child.
Before the dispositional hearing, if the child has not already been removed from the home and the court finds that removal would be best for the child, the child will be removed and "remanded" to the agency's custody. The child may be placed in foster care or with other suitable persons until the court makes its final disposition.
The court may then order an investigation of the child's home and family or other reports. These reports are prepared to help the judge decide how best to protect the child.
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What happens at the Permanency Hearing?
#The first permanency hearing must be held 8 months after the child is placed and every 6 months thereafter. The Child Protective Agency is required by law to send notice and a “sworn permanency hearing report”, 14 days prior to the hearing, to the parties and their attorneys , law guardian/attorney for the child, agency, relatives caring for the child and pre-adoptive parents.
The court must determine whether the child should continue to be placed outside the home, and the appropriateness of the agency’s permanency plan. Also, the court must determine if the agency is making reasonable efforts to effectuate the plan.
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What If the Child Has Been Removed from Home by the Police or by an Agency?
#At the time the petition is filed in Family Court, the child may already be in foster care after an emergency removal from his or her home by Child Protective Services or the police. (This removal may be done with or without a court order.) Regardless of whether the child has been removed from home with or without the parents' consent, the parents may ask that a court hearing be held within a short period of time to see if the child may return home until a full hearing on the allegations is completed.
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What Is a Child-protective Proceeding?
#When it appears that a child less than eighteen (18) years of age has been abused or neglected or is in danger of being abused or neglected, a petition may be filed by a child-protective agency asking the Family Court to assist in protecting the child.
The court then holds hearings to decide if the allegations are true and if so, what action the court should take to protect the child.
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What to expect during a family court hearing
#The Family Court of the State of New York was established to take action in the lives of children, parents and spouses. The court has a wide range of powers to fit the particular needs of the people who come before it.
The Family Court Act gives the Family Court power to hear certain types of cases. As each case is filed in the court, it is assigned its own identifying number, called a docket number. The docket number begins with a letter which tells the type of case filed. For example, a paternity case is given a docket number beginning with the letter "P".
Most Family Court hearings (trials) are heard by judges. Support magistrates hear support and paternity cases. There are no juries in Family Court: the judge or support magistrate conducts a hearing and decides the case.
The Family Court is generally open to the public, in addition to those persons who are directly involved with a particular case. However, the judge or support magistrate presiding over each case has the authority to exclude the public from the courtroom depending upon the nature of the case or the privacy interests of the parties.
Persons who have been scheduled to appear in court are expected to arrive at the courthouse on time. If a party (a person who has a direct involvement with a case) is not present when the case is called into the courtroom, the judge or support magistrate may proceed and decide the case in that person's absence or may dismiss it. Parties should understand that although they arrive early, they may be required to spend a lengthy period of time at the courthouse.
After a case has been completed and a final decision has been made, each party has the right to appeal the judge's decision, asking a higher court to review the evidence and any testimony presented at the Family Court hearing. (Decisions made by support magistrates are appealed first by filing an objection to the decision; a Family Court judge reviews the support magistrates' decision and order.) An appeal may result in a decision being affirmed (left as it is), or modified (changed somewhat), or reversed (changed entirely).
The court records of Family Court proceedings are not open to public inspection. However, the court may permit access to records where appropriate. Persons directly involved with a case who wish to obtain a copy of a court order may request a copy at the Record Room of the courthouse where the case was heard; proof of the person's identity is required.
Each Family Court is open all day from Monday through Friday, except on holidays. At lunchtime, the parts (hearing rooms) within each courthouse close for a lunch recess, but certain areas of each building remain open to the public. Specific information on hours may be obtained by calling the courthouse.
Adoption
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Do the Parties Need Lawyers?
#The adoptive parent or parents should be represented by attorneys.
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What Is a "Private Placement Adoption"?
#In a private placement adoption, in most cases, an agreement is reached between the child's natural parents and the person(s) who wishes to adopt the child. The adoptive parent or parents may be required to be "pre-certified" (approved) to take temporary custody of the child while the court decides if he or she is a suitable parent(s). A home study will be ordered by the Court after the filing of all required documents.
The court requires the adoptive parent(s) to submit a number of documents, including an adoption petition, marriage records, if any, and a report following an investigation of the adoptive parents' home. The court requires proof that the natural parents are voluntarily giving up their rights to the child. The court may require that adoptive parent(s) submit fingerprints.
If the court finds that the adoptive parent or parents are able to provide for the child's proper care and support, the court approves the adoption.
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What Is an "Agency Adoption"?
#When a court has already given responsibility for a child's care and custody to an agency, and the child is residing with foster parents, the agency may file a petition to terminate (end) the parents' rights to the child. A child whose parents' rights have been terminated is then ready for adoption. Persons who are interested in adopting a child may apply to adopt through an agency. The agency conducts an investigation of the adoptive parent or parents' home and background to see if it is a suitable home for the child.
A petition and other documents are then submitted to the court for its approval. If the court finds that the adoptive parent or parents are able to provide proper care and support for the child, the court approves the adoption. (Sometimes, money may be available through the agency to help support the child, called an "adoption subsidy".)
The court may approve of a post adoption contact agreement at the time of a conditional judicial surrender. This agreement allows parent to visit with child after adoption.
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What Is an Adoption?
#When a child's parents have died, when the parents cannot continue to provide for the care or custody of their child, or when the parents' right to continue having responsibility for the care and custody of their child has been terminated (ended) by the court, the child may be "adopted". In an adoption, the natural parents' rights are ended, and the court gives permanent legal responsibility for the child to other persons who then become the child's parents. A child fourteen years of age or older must approve of his or her own adoption.
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What Is the Legal Effect of an Adoption?
#Once an adoption is approved by the court, the adoptive parent or parents are considered to be the child's legal parents, with all of the rights and obligations of natural parents.
Custody/Visitation
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Can a Custody or Visitation Order Be Changed?
#Either party may file a petition to have a custody or visitation order modified (changed). The party seeking to have the order modified must prove that there has been a change of circumstances such that there is a “real need” to change the order since the original order was issued. The court holds a hearing to determine if a change is in the child's best interests.
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Must the Parties Have Lawyers to Represent Them?
#The parties to custody and visitation matters may represent themselves or hire lawyers. In some cases, when a party cannot afford to hire a lawyer, the judge may appoint a lawyer at no cost. The judge may also appoint a lawyer to represent the child; this lawyer is called the "law guardian".
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What Happens at the Hearing?
#If the opposing party is properly served with the petition and does not appear in court, the Judge will conduct a special kind of trial called an inquest, in which only the petitioner testifies.
If the parties agree about custody of the child, the judge will allow the parties to place the terms of an agreement on the record in open court and enter an order of custody on consent, without the need for a formal hearing. If the parties cannot reach an agreement about custody, the court will hold a hearing, taking testimony from both sides, and may appoint a lawyer to represent the child. The court may order an investigation and report from a social services agency or mental health professional. In some cases, the Judge may conduct a confidential interview with the child. After considering the evidence presented, the court will award custody based upon what is in the child's best interests.
A custody or visitation case may be heard by a Family Court "court attorney-referee", who may hear and decide the case and issue orders.
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What Happens If One Side Interferes with the Custody or Visitation That Was Ordered by the Court?
#If a court order gives certain custody or visitation rights to a party and the other party fails to obey the order, the complaining party may file a petition alleging a violation of the order. After the court holds a hearing, the judge may change the order and/or impose sanctions on the party who has failed to comply with the order.
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What is a Records Check?
#State law requires that the Court conduct a review of data bases containing child protective records, orders of protection, the sex offender registry, and arrest warrants for any person seeking custody. The review is performed by court staff and the Judge will inform the parties and attorneys of the results. The Judge will also determine whether the results of the records search will impact any custody order.
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What Is an Order of Custody?
#An order of custody gives responsibility for the care, control and maintenance of a child to one or both of the child's parents or to another party. The Court may issue an order of custody up until a child’s 18th birthday.
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What Is an Order of Visitation?
#A parent seeking to visit with a child may file a petition in Family Court against the person or persons who have custody of the child. Custody and visitation matters are often heard together within the same hearing, but a visitation petition may also be filed as a separate matter. Other family members, such as grandparents or siblings, may also file a petition seeking an order of visitation. The court will order visitation if it is in the child's best interests and if there is an existing relationship with the child.
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What is Mediation?
#Contact the Family Court in your county to find out if your county provides a free, voluntary service where the parties meet with a trained mediator to discuss and resolve custody and visitation issues. If the parties reach an agreement, they sign a memorandum of understanding which is filed with the Court with a petition. The Court will then issue a custody/visitation order based on the parties’ agreement without the need to appear in Court.
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Who May File a Petition for an Order of Custody?
#A parent, grandparent or a person with a substantial connection or relationship with the child may file a petition in Family Court requesting that the court place the child in his or her custody. A copy of the petition and a summons must be served upon (delivered personally to) each of the opposing parties and an affidavit of service must be filed with the Court. If the child's parents are separated and one parent seeks a custody order, that parent must have the papers served upon the other parent. If a non-parent is seeking custody of the child, then both of the child's parents must be served. In general, the child must have resided in New York State for 6 months or more before a custody petition may be filed.
Forms are available at www.nycourts.gov or at the Family Court Clerk’s office. If you believe the child is in imminent danger, there is a place on the petition to request immediate, temporary relief. In such cases, a Judge reviews the petition and makes a determination of how best to protect the child.
There are no filing fees in Family Court.
Domestic Violence
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Am I entitled to an attorney?
#Both petitioners and respondents in family offense cases are entitled to court-appointed attorneys if they are "indigent" (cannot afford to retain an attorney). Only the Court can decide if you qualify for an attorney. You can ask for one at any time. You can also try to find an attorney on your own.
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Can I ask for custody or visitation with my children?
#Custody: You can ask the court to order that the respondent not interfere with custody of your children as part of the order of protection. However, you must also file a separate petition for custody in Family Court.
Visitation: The court may order visitation for either parent as part of the order of protection. The court can specify times for the visits and safe places to exchange the child, such as a police precinct or friend's home. If necessary, the court can order supervised visits. You must also file a custody petition to secure permanent visitation rights.
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Does the respondent have to know about the petition ?
#Yes. You can not get a final order of protection unless the respondent has received notice of the case through service of the petition.
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How do I file a petition in Family Court?
#Forms are available on-line at www.nycourts.gov, or you may go the Family Court Clerk’s office in the county where you live to request forms to file for an Order of Protection.
There are no filing fees in Family Court.
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How do I serve the petition and temporary of protection?
#The summons with notice, petition for an order of protection and temporary order of protection must be personally served (handed to) the respondent. Any person over eighteen years old, except you, may serve these papers. The police, a friend or relative can serve the papers. You can also hire a process server. You (the petitioner) may never serve the papers yourself. Papers for an order of protection may be served any day of the week at any time of the day or night. If the temporary order of protection is not properly served, it is not enforceable.
Service by police:
There are two ways to have the police serve the papers. You can take the papers to the police yourself, or the Court can send them to the police.Service by relative, friend, or process server:
If a friend or relative gives the papers to the respondent, this person must complete an "Affidavit of Service" and have it notarized. You must bring this with you when you return to court, or the case will be postponed or dismissed. You may also bring the person who served the papers with you to court. -
What can I ask for in my petition?
#Most temporary orders of protection say that the respondent must not assault, menace, or harass you, but you can ask for additional terms. You must tell the petition clerk specifically what you would like the Judge to order. Some of these things may be in the temporary order and some may be in the final order. You can ask for:
- Stay away: The court can order the respondent to stay away from you, your home, your job, your children, your children's school or any other place or person the court finds necessary.
- Refrain from certain acts: The court can order the respondent to stop abusing or threatening to abuse you or your children. The order can be specific, such as, ordering the respondent to stop calling you at work.
- Collect your belongings: If you do not want to return home, you can ask the court to allow you to enter your home with the police to collect your personal belongings at a certain date and time.
- Exclude the respondent from the home: If the respondent is dangerous to you or your children, you can ask the court to order the respondent out of the home ("excluded") while the order of protection is in effect. It does not matter that the home is not in your name.
- Temporary child support and/or child custody: The court can award temporary child custody and or temporary child support. However, you must also file a separate petition for custody and/or child support. The child support case would then be heard by a Support Magistrate.
- Revoke or suspend firearms: The court can revoke or suspend respondent's license to carry firearms or order surrender of any or all firearms owned or possessed by respondent.
- Five year order: Most Family Court orders of protection are for two years. You can get a five year order of protection if there are "aggravating circumstances", or if the court finds there was a violation of an order of protection. Aggravating circumstances exist where there is physical injury, the respondent used a weapon or other dangerous instrument against you, there is a history of repeated violations of prior orders of protection, the respondent has been convicted of crimes committed against you in the past, there is exposure of any family or household member to physical injury, or other behaviors that pose a danger to you, your family or other household members.
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What do I say to the judge?
#The Judge may ask you questions about what you said in the petition. The Judge will decide whether to issue a temporary order based on your petition and answers to the questions. Even if the Judge does not issue the temporary order of protection, you may get one later. If you can't afford a lawyer, you can ask the Judge to appoint one for you.
The Judge will ask you how you want to serve the papers. (The different options are listed below.) The court may issue a warrant directing that the respondent be brought immediately before the Family Court. Warrants are issued under special circumstances, such as when your safety or the safety of your child is at risk.
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What happens if I don't come back to court?
#It is very important for you to come to court on your adjourn date. In case of a serious emergency, send someone in your place to explain your absence or notify the court by phone or in writing. It is up to the Judge to decide whether to grant you an adjournment. If you do not appear, your case may be dismissed and you will no longer have a temporary order of protection.
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What happens when I come back to court on the next court date?
#You will have to return to court to ask for your final order of protection. The respondent has the right to a hearing.
If the respondent does not come to court: You will be asked to show the Judge that the respondent was properly served. You will need to give the Judge an affidavit of service from a relative or friend, or a statement of service from the police. If the court does not conclude that the respondent was properly served, your petition may be dismissed or you may be given more time to serve. If there are serious allegations, the court might also issue a warrant to bring the respondent back to court immediately.
If the court finds the respondent was properly served, the court will swear you in (place you under oath) and ask you to explain the incidents that you allege in the petition. This is called an Inquest. Be specific: speak clearly and organize your thoughts. Don't forget to tell the Judge if a weapon was used or you were injured. If the Judge finds that a family offense has occurred, the Judge will issue a final order of protection. You will receive a copy of the order the same day. The court will arrange to have the Respondent served with the final order of protection, or you may arrange for service. The order is not enforceable unless it is properly served on the respondent.
If the respondent comes to court:
- If the respondent agrees to an order of protection: When respondents agree to an order of protection, they usually consent to the order without admitting that they have done anything wrong. This means the court has not made a finding against them. An order without a finding ("on consent") has the same effect and will protect you the same way that an order after a trial would. If the order is violated, the respondent can be arrested. However, an order on consent does not establish that the respondent did anything wrong for use in other proceedings, such as custody or visitation.
- If the respondent does not agree to the order of protection: If the respondent does not agree to an order of protection and all of the terms you asked for, your case will go to trial. If there is a trial in your case, there may be several court dates before it is resolved. You will have the opportunity to tell the Judge your story and present evidence in support of your case and the respondent will have the opportunity to defend himself.
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What if I am afraid to see the respondent in court?
#When you arrive at court, notify a court officer in the part (room) where your case is being heard that you are afraid to see the respondent. The officer can arrange for you to stay in a place away from the respondent until the Judge calls your case. Make sure that a court officer knows you are there and where you are waiting. You can ask a court officer to escort you from one location to another or to help keep the respondent away from you. You may also bring a friend, relative or an advocate to court with you who can come with you into the courtroom
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What if I decide not to pursue a order of protection?
#You may change your mind once you have started the case. If you decide not to pursue the order of protection, you may wish to come back to court or send a letter asking that your petition be withdrawn "without prejudice." This means that if you change your mind again, and wish to re-file at a later date, you can raise the same allegations again in a new petition. You can always come back to court if a new incident occurs. If you withdraw your petition, it will be dismissed and the temporary order of protection will be vacated (no longer in effect).
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What if I decide not to pursue a order of protection?
#You may change your mind once you have started the case. If you decide not to pursue the order of protection, you may wish to come back to court or send a letter asking that your petition be withdrawn "without prejudice." This means that if you change your mind again, and wish to re-file at a later date, you can raise the same allegations again in a new petition. You can always come back to court if a new incident occurs. If you withdraw your petition, it will be dismissed, and the temporary order of protection will be vacated (no longer in effect).
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What if I don't know where the respondent lives?
#The respondent may be served anywhere. As long as you can arrange for the respondent to be personally served with the court papers, it will not matter if you don't know where the respondent lives.
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What if the respondent has not been served?
#You should come back to court even if you have not been able to serve the respondent. Tell the Judge the efforts you made to serve the respondent. If the police attempted service, note the date and times, precinct number, and officers' names who attempted service. Try to get a statement from the police showing their attempts to serve the Respondent. If someone other than police attempted service, write down the dates, times, and places that service was attempted. When you return to court, the Judge may give you more time to try to serve the papers on the Respondent. You can ask the Judge for other ways to serve the respondent, such as service by certified mail. You can also ask the court to issue a warrant if you cannot find the respondent or if he is avoiding service.
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What if the respondent violates the order of protection?
#It is a crime to violate a temporary or final order of protection. If the respondent does not obey the order, then you can call the police. The police will probably arrest the respondent for violating the order of protection. The respondent does not have to hit you to violate the order. If the respondent comes to your home and the order says he can't, then you can call the police. You also have the right to file a violation of the order in Family Court. Filing a violation petition in Family Court usually will not result in arrest of the respondent. You can choose to go to Family or Criminal Court, or both.
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What should I put on my petition?
#Write down as many details as possible. In order to obtain an order of protection you must state that a “family offense” occurred. Many actions are family offenses, such as when a person verbally, physically, emotionally, or sexually abuses you, or threatens to hurt you. Describe when each incident occurred, where it occurred, what happened, whether you were injured (bruises, cuts), and whether weapons were used. It is best to include the most recent incident, the first incident and the worst incident. If there was verbal abuse, tell the clerk the exact words the respondent used. Tell the clerk if there is criminal court involvement and if there were earlier orders of protection. Before you sign the petition, read it carefully and tell the petition clerk if anything important has been left out. Make sure the petition is accurate and fully states what you want to tell the Judge.
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What's the difference between a temporary and a final order of protection?
#A temporary order of protection is issued on the day you file for an order of protection before the respondent is served with the papers. If a final order of protection is issued, this occurs at the end of the case after the Judge finds that a family offense was committed or the respondent agrees. A final order lasts for two or five years. A final order of protection can also include:
- Restitution: If the respondent damaged any of your property (e.g. car, windows, furniture), the court can order the respondent to pay damages ("restitution") up to $10,000. You will have to prove the value of what was damaged.
- Medical expenses: The court can order the respondent to pay for any medical expenses arising from the abuse.
- Participation in a Program: The court can order the respondent to participate in services, such as a batterer's education program, or make referrals for drug or alcohol counseling.
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When will I see the judge?
#After you file your petition with the Family Court Clerk’s office and your petition is processed, you will be seen by a Judge or, in some counties, by a Court Attorney Referee.
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Where do I get a temporary order of protection?
#After you have seen the Judge or Court Attorney Referee, you must wait to pick up your papers in a designated waiting area. You will receive your copies of the temporary order of protection, if one has been issued. You will also receive a summons and copy of the petition for the respondent, if you are arranging service on the respondent.
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Who can file a petition in Family Court?
#You can file a petition in Family Court for an order of protection if
- you are related to the respondent by blood or marriage;
- you are or were legally married to the respondent;
- you have a child with the respondent; or
- you are or were in an intimate relationship with the respondent.
You may file for yourself or on behalf of your child, if appropriate.
If you need an order of protection against someone other than those listed above, you can only get one through Criminal Court. To get a criminal court order of protection, the police must arrest the person.
Factors the court may consider in determining whether a relationship is an "intimate relationship" include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an "intimate relationship".
You may proceed for orders of protection in Family or Criminal Court or both. There are no filing fees in Family Court.
Foster Care
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Do the Parents Need to Have a Lawyer Represent Them?
#The parents or guardian of the child may represent themselves without a lawyer, or may hire a lawyer to represent them. If the parents or guardian cannot afford to hire lawyers, they have the right to have the court appoint lawyers for them at no cost.
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How Does a Child Enter Foster Care?
#A child may be placed in foster care voluntarily, at the request of his or her parents or legal guardian. A child may also enter foster care by order of the court. The court may order that the child be placed in the care of an agency if it finds that the child has been abused or neglected or is at risk of such harm, or when a child's behavior is beyond the control of those responsible for his or her care. A child may also be removed from his or her home by a child-protective agency because of an emergency in the home.
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How Long Does the Child Stay in Foster Care?
#Placement may be temporary, with the child eventually returning to his or her parents or legal guardian, or may result in the child being adopted by another family.
When a child is voluntarily placed into foster care by a parent or guardian, that person signs a "Voluntary Placement Agreement" transferring the care and custody of the child to an agency. If the child is expected to remain in foster care for more than 30 days, the Child Protective Agency must file a petition asking the court to approve the placement and the agency's plan for the child's future. The agreement may specify how long the child is to remain in foster care, or the period of time may be left open. The court then hears testimony from the persons who signed the agreement and from the agency, and decides whether the agreement is valid, whether foster care is appropriate for the child, and how long the child should remain in foster care.
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What Happens When Parents Do Not Wish to Have Their Children Return Home, or Cannot Provide Proper Care for Their Children?
#Parents may voluntarily agree to have their children adopted by signing a document called a "Surrender", giving up their rights as parents. Or the agency may file a petition asking the court to hold a hearing to determine if the court should "terminate" (end) the parents' rights. If the court finds that the child has been abandoned, permanently neglected, or severely or repeatedly abused, or that the parents are unable to properly care for the child because of mental illness or retardation, the court may permanently end the parents' rights to the child and give custody and guardianship of the child to the Child Protective Agency. A child may then be adopted by the foster parents, or the agency may seek another suitable permanent home for the child.
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What Happens While the Child Is in Foster Care?
#The court may order the child-protective agency or child-care agency to provide services or assistance to the child and the child's family, including visitation with the child and counseling for the family, while the child is in foster care.
After a child has been in placement for the time period ordered, the parents may file a petition asking the court to review the child's placement. After a court hearing, the court may return the child to his or her home or extend the placement period.
If the child remains in foster care for a year, the agency must file a petition asking the court to review the child's situation, and extend the placement if appropriate.
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What is Foster Care?
#A "foster child" is a child who has been placed in the care and custody of the Child Protective Agency, or an authorized child-care agency for either short-term or long-term care. This care is often with a "foster family", or with a group home or other facility to meet other needs of the child. The agency has physical custody of the child, but the parent continues to have legal rights to the child.
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Where is the Child Placed?
#The child may be placed with foster parents in their home, in a group home, or in an institution, depending upon the child's needs and the available foster care settings. Instead of foster care, a child may be placed in the care of a relative or another suitable person.
Guardianship
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What do I need to bring to the Family Court to file a Guardianship petition in the Family Court?
#If available, the following documentation should be brought to Court:
- Child(ren)’s Birth Certificate
- If the parent(s) is/are deceased, the original Death Certificate
- If the child(ren) is over 14 years of age and unable to come to court, Form 6-3, “Preference of a Minor over 14 years of age”. This form should be signed and notarized.
- If the parents are alive and unable to come to court, Form 6-4 Waiver of Process, Renunciation or Consent to Guardianship should be completed by the parent(s). This form should be signed and notarized.
- Proposed Guardian should also bring proof of identification, preferably a picture ID, and proof of residence.
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What Happens at the Hearing?
#In a Family Court guardianship hearing, the court takes testimony concerning the person seeking guardianship to determine whether it would be in the child’s best interests to allow that person to take responsibility for the child’s care. If the child is over 14 years of age, the court may consider the child’s own preference.
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What is a Guardian?
#A guardian is a person or an agency to whom the court gives authority to take responsibility for the care of a child. It may be planned for in the future: for example, a “standby guardian” may be appointed to take responsibility for a child’s care at a future date if a parent’s illness is worsening and he or she is not expected to be able to continue caring for the child.
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Where do I file a Guardianship?
#The Family Court has similar jurisdiction and authority as the County and Surrogate Court regarding the guardianship of the person of a minor (a child 17 years or younger). A person may file in either Court. The Surrogate and/or the County Court has the power over the property of an infant and is authorized and empowered to appoint a guardian of the person or of the property or of the person and property.
There are no filing fees in Family Court.
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Who can file a petition for Guardianship?
#An adult relative or family friend, a child-protective agency or if the infant is over the age of 14 years, the infant (child), can petition the court to be appointed as the guardian or standby guardian of a child.
Juvenile Delinquency
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Does the Child Need a Lawyer?
#The child must have a lawyer representing him or her. If the parent or guardian cannot afford to hire a lawyer, the court will assign a lawyer to represent the child free of cost.
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How Does the Family Court Case Begin?
#A prosecuting attorney from the County Attorney’s Office, called a "Deputy County Attorney", presents the juvenile delinquency case. A Deputy County Attorney prosecutes cases involving juvenile offenders. The presentment agency (prosecutor) prepares a petition against the child containing a description of the acts he or she is accused of committing. The accused child is called the "respondent". The victim in the case is called the "complainant".
A child who has been arrested and held may be brought directly to Family Court by the police, or, when court is not in session, may be held overnight in a detention center until the next court day. In the alternative, a child may be arrested and released after being given an "appearance ticket" directing him or her to appear in court on a certain date. In court, the child and his parent or guardian are given a copy of the petition.
There are no filing fees in Family Court.
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What Happens at the Dispositional Hearing?
#At the dispositional hearing, the judge decides whether the respondent is a "juvenile delinquent" in need of supervision, treatment or confinement (placement). During the hearing, the judge may hear testimony from the probation officer about the respondent's previous behavior in school and at home, and any previous court cases involving the respondent. The respondent's parents or guardians and other persons with information helpful to the court may testify.
The probation officer may recommend that the respondent be permitted to live at home without court supervision, but with certain conditions set by the court (a "conditional discharge"); or that he or she be supervised by the Probation Department while living at home (an "order of probation"); or that the court place the respondent in a facility away from home, such as a group home or secure facility. The respondent may also be ordered to pay for damage to the complainant's property and/or unreimbursed medical expenses incurred by the complainant as a result of the respondent’s actions
The judge decides which disposition would meet the needs of the respondent and signs a dispositional order. Even if there is a finding that the respondent committed the acts described in the petition, if the judge finds that the respondent is not in need of supervision, treatment or confinement, the petition must be dismissed. The petition may also be dismissed after the court has ordered an adjournment in contemplation of dismissal ("ACD"). An ACD is where the case is on hold for up to 6 months to decide whether it should be dismissed.
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What Happens at the Fact-finding Hearing?
#At the fact-finding hearing, the presentment agency must prove its case through witnesses and other evidence. The respondent's attorney may cross-examine the witnesses and may present witnesses and evidence for the respondent. If the presentment agency proves the case beyond a reasonable doubt, the judge makes a "finding" that the respondent committed some or all of the acts described in the petition. If the case has not been proven, the judge will dismiss the petition.
If a finding is made, the judge will schedule a "dispositional hearing" and order the Probation Department to investigate the respondent's home and school behavior. The judge may also order other reports or evaluations to assist in determining the child’s best interests. The court may either "remand" the respondent to a detention facility or release the child to the custody of his or her parent or guardian until the dispositional hearing.
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What Happens if the Respondent Disobeys the Dispositional Order?
#If the respondent does not obey the conditions of his or her dispositional order, the probation officer or placement agency may file a violation petition, and a new dispositional hearing may be held. If the violation is proven, the judge can order a different disposition.
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What Types of Hearings Are Held?
#In a juvenile delinquency case, the trial is called a "fact-finding hearing". A fact-finding hearing is the same as a criminal trial, but without a jury. The judge decides whether the child committed the acts described in the petition. If the court decides that the child must be held in detention ("remanded") while waiting for the fact-finding hearing, a "probable cause" hearing may be held to determine whether there is good cause to hold the child in detention. There is no bail set in juvenile delinquency cases in Family Court.
Other hearings which may be scheduled concern the evidence which the presentment agency may wish to use in the fact-finding hearing. The presentment agency must give certain police reports and other documents to the respondent's lawyer so that the respondent can prepare his or her defense.
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Who Is a Juvenile Delinquent?
#When a person who is under 16 years old, but is at least 7 years old, commits an act which would be a "crime" if he or she were an adult, and is then found to be in need of supervision, treatment or confinement, the person is called a "juvenile delinquent". The act committed is called a "delinquent act". All juvenile delinquency cases are heard in Family Court. Children who are 13, 14 and 15 years old who commit more serious or violent acts may be treated as adults. These cases may be heard in County Court but may sometimes be transferred to the Family Court. If found guilty, the child is called a "juvenile offender" and is subject to more serious penalties than a juvenile delinquent.
Paternity/Parentage
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Do the Parties Need Lawyers?
#The parties may represent themselves or may hire lawyers. A respondent who cannot afford to hire a lawyer has the right to have a lawyer assigned at no cost.
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What Documents must be Brought to Court?
#The petitioner should present a copy of the child's birth certificate.
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What Happens at the Hearing?
#Initially, the parties appear before a Support Magistrate. In some counties, you may appear before a Judicial Hearing Officer. If the mother was not married when the child was conceived or born, and the respondent admits that he is the father, the Support Magistrate (or Judicial Hearing Officer) enters an order of filiation. If the respondent denies that he is the father, the Support Magistrate (or Judicial Hearing Officer) will order blood or DNA tests of both parties and the child and adjourn the case to another date. The parties are given an appointment date for the laboratory tests.
When the parties return to court, the test results are explained by the court. The blood or DNA tests may exclude the man as the biological father, or may show how probable it is that he is the father. If the respondent admits paternity, an order of filiation is entered. If the parties cannot agree on paternity, the matter is then scheduled for a hearing. Both parties may testify and present witnesses and the blood or DNA test results may be offered in evidence. If the petitioner presents sufficient proof, the court will enter an order of filiation; if not, the petition will be dismissed.
After paternity has been decided, if the custodial parent seeks an order of child support, or is receiving public assistance for the child, the Magistrate will conduct a support hearing.
There is an informative twenty-minute video which, in a step-by-step manner, will take you through the process of a paternity or child support proceeding in the New York State Family Court. You will learn what documents are necessary and what to expect in the court room.
"What You Need to Know About Child Support Hearings and Services" (Video)
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What if the Mother was Married to Someone Else? I
#f the mother was married at the time the child was conceived or born, her husband is considered to be the legal father of the child, even though he might not be the biological father, unless a court decides that he is not the father. A copy of the paternity petition must be served upon the husband to notify him about the court case. After he is served, a judge may make a ruling concerning his relationship to the child. If the judge decides that the husband is not the father, the paternity case against the other alleged father may continue.
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What Is a Paternity Case?
#When a child is born to parents who are not married to each other, the biological father is not considered the child's legal parent unless the father has signed an "Acknowledgment of Paternity" (usually done at the hospital at the time of the child's birth) declaring himself to be the child's father, or an "order of filiation" has been entered, which is a court order that declares that person to be the legal father. A petition may be filed in Family Court seeking an order of filiation.
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Who May File a Paternity Petition?
#The petition may be filed by the child's mother, by a man who believes he is the father of the child, by the child or by the child's guardian. If the child is receiving public assistance, the Department of Social Services may file a petition against the alleged father, seeking an order of filiation and an order of support. In some cases, a paternity petition may be filed even if the alleged father has died.
The petition and a summons must be served upon (delivered to) the respondent.
There are no filing fees in Family Court.
If you are the mother or a man who believes he is the father, you can use the free and easy DIY Form program to ask the Family Court to name the child's legal father.
If you are not the child's parents, you can use the Paternity Petition form to start your Paternity case.
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Why is it Necessary to Have an Order of Filiation Made?
#If a man was not married to the mother of the child, he has no obligation to pay support for the child and has no legal right to custody or visitation with the child, unless he is legally named the father of the child, through an order of filiation or an acknowledgment of paternity.
Persons in Need of Supervision (PINS)
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How Does a PINS Court Case Begin?
#A PINS petition may be filed in Family Court by a parent or other person legally responsible for the care of the child, by a peace officer or police officer, by a person who has been injured by a child, or by a school or other authorized agency. The PINS petition contains a description of the child's behavior and asks the court to find that the child is in need of supervision. The petition and a summons must be given to the child and his or her parent, directing them to appear in Family Court on a specific date.
There are no filing fees in Family Court.
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If the Child is Beyond the Control of His or Her Parents can the Court Hold the Child in a Secure Facility?
#If the court finds that the PINS child should not be released to the custody of his or her parent or guardian while waiting for the fact-finding hearing, the court cannot hold the child in a secure facility. If it appears that a PINS respondent might fail to appear for a scheduled court date, or is at risk of committing an act which would be a crime if committed by an adult, the court may place the child with a relative or other person willing and able to take responsibility for the child or hold the child in a non-secure facility.
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Is the Child Represented by an Attorney?
#A private attorney may be hired to represent the child or the court will assign an attorney. The child's attorney is called a " law guardian" or simply the “Attorney for the Child”.
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What Happens at the Dispositional Hearing?
#At the dispositional hearing, information is presented to the court to help the judge decide whether the child is a person in need of supervision - a PINS. Witnesses with information about the child testify and present evidence.
If the judge decides that the child does not need supervision or treatment, the judge may dismiss the case. If the child does need supervision or treatment, the judge can place the child into a foster group home or a social service facility for up to 18 months, send the child home under the supervision of a probation officer, or suspend judgment on the condition that the child abide by certain terms. If the child is at least 10 years old, the judge can order the child to pay for any damage done to someone's property or require the child to perform community service. The judge can also put the case "on hold" for up to 6 months to decide whether the case should be dismissed or may discharge the child with a warning. The judge then signs a "dispositional order".
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What Happens at the Fact-finding Hearing?
#In a PINS case, the trial is called a "fact-finding hearing". The parties may testify and present witnesses and evidence.
If the judge decides that the child committed the acts described in the petition, the judge sets a date for a "dispositional hearing". The court may order the Probation Department to prepare a report concerning the child's general behavior, home life and school attendance and behavior, and may order any other evaluation or report that would assist the Court in determining what would be in a child’s best interests.
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What Happens If the Child Disobeys the Dispositional Order?
#If the court finds that the child is not obeying the terms of the court's order, the probation officer or placement agency may file a violation petition, and a new dispositional hearing may be held. If the violation is proven, the court may change its order to any order it could have issued at the original dispositional hearing.
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What Is a "PINS"?
#A child under the age of 18 who does not attend school, or behaves in a way that is dangerous or out of control, or often disobeys his or her parents, guardians or other authorities, may be found to be a Person In Need of Supervision or "PINS". All PINS proceedings are heard in Family Court. There is a possibility that the PINS proceeding could be settled outside of court through a Diversion Program that is run by the Department of Probation.
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What Is the Diversion Program?
#Diversion is a program run through the Probation Department to provide information and assistance to families dealing with children with PINS-like behavior. All families who request PINS services will first work with the Diversion Program and will only be referred to Family Court if all other efforts have been exhausted.
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Who Presents the Case Against the Child?
#The complaining party presents the case at the hearing by testifying about the child's behavior. In some counties, the County Attorney’s Office will serve as the presentment agency. Depending upon the county and the circumstances, sometimes the judge assigns a lawyer to represent the complaining party at the hearing, or the complaining party may hire an attorney.
Support
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Can a Petition Be Filed Against a Husband or Wife for Spousal Support?
#In New York State, a married person may file a petition in Family Court seeking spousal support from a current husband or wife. While a divorced person may not seek a new order of support from an ex-spouse in Family Court (that would be done in the state Supreme Court), a petition may be filed seeking to modify an already existing order for an ex-spouse.
The petition and summons must be served upon (delivered to) the respondent. A hearing is then held before a Support Magistrate, where the parties must present evidence of their income and expenses, and may present witnesses to testify. The Support Magistrate decides whether to order the respondent to pay spousal support for the petitioner and, if so, how much and for how long a period of time.
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Can the Order Be Changed?
#If there is a change in circumstances, either party has the right to file a petition to modify the order. The party seeking a change in the order must file a modification petition containing a statement explaining the change. The petition and a summons must be served upon (delivered to) the other party. The court then holds a hearing to consider the request to change the order.
Orders paid through the Support Collections Unit will be reviewed automatically every three years for possible "adjustment" (change), upon request of either party, and in all cases where the person with custody of the child receives public assistance for the child. The parties are notified of their right to request that SCU review the order, and, following the review, are each notified of the possible change in the order. If they disagree with the proposed new order, they may request a hearing before a Support Magistrate, and a new Support order will be established.
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Do the Parties Need to Be Represented by Lawyers?
#The parties may hire lawyers to represent them or may speak for themselves without a lawyer.
Where a party cannot afford to hire one, the court will assign a lawyer at no cost, only when it is alleged that there has been a violation of the order and a party is in danger of going to jail.
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Until What Age Is a Parent Obligated to Support a Child?
#In New York State, a child is entitled to be supported by his or her parents until the age of 21. However, if the child is under 21 years of age, and is married, or self-supporting, or in the military, the child may be considered to be "emancipated" and the parents' support obligation may end.
A child may also be considered "emancipated" if he or she is under 21, leaves the parents' home and refuses to obey the parents' reasonable commands.
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What Documents must Be Brought to Court?
#The parties must provide copies of their most recently filed tax returns, some recent pay stubs, and a completed financial disclosure statement showing their earnings and expenses. The parties may also bring to court proof of their expenses, such as rent, food, clothing, medical costs, child care, education and the cost of supporting other children.
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What Happens at the Hearing?
#A "Support Magistrate" conducts the hearing, taking testimony from both sides concerning their income and expenses and the cost of supporting the child. The parties can present evidence and witnesses and cross-examine each other and the witnesses. The Support Magistrate calculates how much support the non-custodial parent must pay to the parent with custody, and sets a schedule for regular payments. Payments may be paid directly to the petitioner or through the Support Collections Unit ("SCU"). SCU, which is not part of the court, will then send the money to the petitioner.
There is an informative twenty minute video which, in a step by step manner, will take you through the process of a paternity or child support proceeding in the New York State Family Court. You will learn what documents are necessary and what to expect in the court room.
"What You Need to Know About Child Support Hearings and Services" (Video)
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What Happens If the Respondent Does Not Pay the Order?
#The petitioner may file a "violation petition" asking the court to take action against a respondent who fails to pay a support order. The petition must be served upon (delivered to) the respondent. The Court will advise the Respondent of his right to counsel and may assign counsel if financially eligible. A hearing is then held to decide whether the respondent has violated the court's order. The Support Magistrate may enforce the order by directing SCU to take the payments directly from the respondent's paycheck, order the respondent to pay a lump sum toward back monies owed, or take other steps to collect the money owed, including granting a judgment.
A respondent who falls behind in payments also risks having his or her driver's license or professional and business licenses suspended, bank accounts seized, passport revoked, and tax refunds intercepted.
If the respondent is found to have willfully and voluntarily failed to pay a child support order, he or she may be jailed for up to six months, for contempt of court, placed on probation, or ordered to participate in programs to assist in finding employment.
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What If a Custodial Parent Is Seeking Support from a Parent Who Lives Outside of New York State, or in a County in New York State That Is Far from the Child's Home County?
#If the custodial parent lives in one state and seeks support from the other parent who lives outside of that state, an inter-state case may be filed in the Family Court, under the Uniform Interstate Family Support Act (UIFSA). A UIFSA case may also be filed in Family Court when the parents reside in two different counties within New York State which are not located next to one another. A petitioner may file the case in the Family Court in his or her home county, and the petition will be sent to the court in the respondent's state or county. The respondent is then served with the petition and appears in court in his or her home state or county. The petitioner is not required to appear in the other court where the respondent lives. A local city or county attorney may appear there to represent the petitioner at the support hearing.
The hearing is held in the same manner as a support case filed within the local county, but documents and evidence are exchanged through the mail or by fax.
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What If the Parties Disagree with the Support Magistrate's Order?
#Both parties have the right to appeal the order by filing an "objection" within 30 days of the date the order is sent to them. The objection must be filed with the court clerk's office, with a copy sent to the other party. The other party may send a reply to the court. After reviewing the case file, a judge then rules on the objection. The judge may leave the order as it is, change it, or send the case back to the Support Magistrate for further proceedings. If either party disagrees with the judge's decision, the case may be appealed to a higher court.
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Who May File a Petition for Child Support?
#A parent, or other person, with whom a child resides may file a petition in Family Court asking the court to enter an order for the "non-custodial parent" to pay child support.
A child who is not emancipated and is living away from both parents may file a petition against his or her parents asking for an order of support to be paid to the child.
When a child is receiving public assistance benefits or is living in a foster home and receiving foster care benefits, the Department of Social Services may file a petition against the non-custodial parent or parents asking that the court enter an order for child support to be paid to the government agency while it continues to pay benefits for the child.
The party filing the petition is called the "petitioner" and the party from whom support is sought is the "respondent". The petition must be served upon (delivered to) the respondent, together with a summons indicating the date of the court hearing.
There are no filing fees in Family Court.