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Family Court Law

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Part 2 - Article 4 - Family Court

VENUE AND PRELIMINARY PROCEDURE

Section Description
421 Venue.
422 Persons who may originate proceedings.
423 Petition; prior demand not required.
424 Probation services.
424-A Compulsory financial disclosure.
425 Agreement to support.
426 Issuance of summons.
427 Service of summons.
428 Issuance of warrant; certificate of warrant.
429 Sequestration of respondent's property.
430 Temporary order of protection.
  S 421. Venue. Proceedings to compel support under this article may be
  originated in the county in which one  of  the  parties  resides  or  is
  domiciled  at  the time of the filing of the petition. Upon application,
  the family court may change the  place  of  trial  of  a  proceeding  in
  accordance with article five of the civil practice law and rules.

  S 422. Persons  who  may originate proceedings. (a) A husband, wife,
  child, or relative in need of public assistance or care may originate  a
  proceeding  under  this  article  to compel a person chargeable with the
  support to support the petitioner as required by law. A social  services
  official  may originate a proceeding under this article if so authorized
  by section  one  hundred  and  two  of  the  social  services  law.  The
  commissioner  of  mental  health  may  originate a proceeding under this
  article when authorized by article forty-three  of  the  mental  hygiene
  law. A parent or guardian, of a child, or other person in loco parentis,
  or  a  representative  of  an  incorporated  charitable or philanthropic
  society having a legitimate interest in the  petitioner,  or,  when  the
  petitioner is unable because of his physical or mental condition to file
  a  petition,  a  guardian  ad  litem,  or a committee, conservator, next
  friend or other person appointed by the court, may file  a  petition  in
  behalf of a dependent relative.
    (b)  Any  party  to  a decree of divorce, separation, or annulment may
  originate a proceeding to enforce or modify  a  decree  of  the  supreme
  court  or  a  court  of  competent jurisdiction, not of the state of New
  York, as is provided in part six of this article.

  S 423. Petition;  prior  demand not required. Proceedings under this
  article are commenced by the filing of a petition, which may be made  on
  information  and  belief. The petitioner need not make a demand upon the
  respondent for support as a condition  precedent  to  the  filing  of  a
  petition  for  support.    Any  such  petition  for  the  establishment,
  modification and/or  enforcement  of  a  child  support  obligation  for
  persons  not  in  receipt of family assistance, which contains a request
  for  child  support  enforcement  services  completed  in  a  manner  as
  specified  in  section  one hundred eleven-g of the social services law,
  shall constitute an application for such services.

  S 424. Probation  services. 1. A local probation service may provide
  services to a party seeking to establish, modify or  enforce  a  support
  obligation  where  there  is  a  contract  with  the  appropriate social
  services district for the performance  of  support  collection  services
  under section one hundred eleven-h of the social services law.
    2.  A  local probation service may provide services to persons ordered
  to pay support seeking to modify such orders.
    3. The probation service may not prevent any person who wishes to file
  a petition under this article from having access to the court  for  that
  purpose nor may the probation service compel any person to appear at any
  conference, produce any papers or visit any place.

  S 424-A. Compulsory financial disclosure. Except as provided herein:
  (a)  in  all  support  proceedings  in  family  court,  there  shall  be
  compulsory  disclosure  by  both  parties  of their respective financial
  states, provided, however, that this requirement shall not  apply  to  a
  social  services official who is a party in any support proceeding under
  this act.  No showing of special circumstances shall be required  before
  such  disclosure  is  ordered  and  such disclosure may not be waived by
  either party or by the court.  A sworn statement of net worth  shall  be
  filed with the clerk of the court on a date to be fixed by the court, no
  later  than  ten  days after the return date of the petition. As used in
  this part, the term "net worth" shall mean the  amount  by  which  total
  assets   including  income  exceed  total  liabilities  including  fixed
  financial obligations.   It shall  include  all  income  and  assets  of
  whatsoever  kind  and  nature  and wherever situated and shall include a
  list of all assets transferred in any manner during the preceding  three
  years,  or  the  length of the marriage, whichever is shorter, provided,
  however, that transfers in the routine course of business which resulted
  in an exchange of assets of substantially equivalent value need  not  be
  specifically disclosed where such assets are otherwise identified in the
  statement of net worth.  All such sworn statements of net worth shall be
  accompanied  by  a current and representative paycheck stub and the most
  recently filed state and federal income tax returns including a copy  of
  the  W-2(s)  wage  and  tax statement(s) submitted with the returns.  In
  addition, both parties shall provide information relating to any and all
  group health plans available to them for the provision of care or  other
  medical  benefits by insurance or otherwise for the benefit of the child
  or children for whom support is sought, including all  such  information
  as  may  be required to be included in a qualified medical child support
  order as defined in section six hundred nine of the employee  retirement
  income security act of 1974 (29 USC 1169) including, but not limited to:
  (i)  the  name  and last known mailing address of each party and of each
  dependent to be covered by the order;  (ii)  the  identification  and  a
  description  of  each  group  health  plan  available for the benefit or
  coverage of the disclosing party and the  child  or  children  for  whom
  support  is sought; (iii) a detailed description of the type of coverage
  available from each group health plan for the potential benefit of  each
  such  dependent;  (iv)  the identification of the plan administrator for
  each such group health plan and the address of such  administrator;  (v)
  the  identification  numbers  for  each such group health plan; and (vi)
  such other information as may be required by the court;
    (b)  when a respondent fails, without good  cause,  to  file  a  sworn
  statement  of  net worth, a current and representative paycheck stub and
  the most recently filed state and federal income tax returns,  including
  a  copy of the W-2(s) wage and tax statement submitted with the returns,
  or to provide information relating to all group health  plans  available
  for  the  provision  of  care  or other medical benefits by insurance or
  otherwise for the benefit of the  disclosing  party  and  the  child  or
  children  for  whom support is sought, as provided in subdivision (a) of
  this section, the court on its own motion or on application shall  grant
  the relief demanded in the petition or shall order that, for purposes of
  the  support proceeding, the respondent shall be precluded from offering
  evidence as to respondent's financial ability to pay support;
    (c) when a petitioner other than a  social  services  official  fails,
  without good cause to file a sworn statement of net worth, a current and
  representative  paycheck  stub  and  the  most  recently filed state and
  federal income tax returns, as  provided  in  subdivision  (a)  of  this
  section,  the  court  may  on  its own motion or upon application of any
  party adjourn such proceeding until such time as  the  petitioner  files
  with  the  court such statements and tax returns. The provisions of this
  subdivision  shall  not  apply  to  proceedings  establishing  temporary
  support or proceedings for the enforcement of a support order or support
  provision of a separation agreement or stipulation.

  S 425. Agreement  to support. If an agreement for the support of the
  petitioner is brought about, it must be reduced to writing and submitted
  to the family court  or  a  support  magistrate  appointed  pursuant  to
  section  four hundred thirty-nine of this act for approval. If the court
  or support magistrate approves it, the court without further hearing may
  thereupon enter an order for  the  support  of  the  petitioner  by  the
  respondent in accordance with the agreement, which shall be binding upon
  the respondent and shall in all respects be a valid order as though made
  after  process  had been issued out of the court. The court record shall
  show that such order was made upon agreement.

  S 426. Issuance of summons. (a) On the filing of a petition under this
  article,  the court may cause a copy of the petition and a summons to be
  issued, requiring the respondent to show cause why the order of  support
  and  other  and  further relief prayed for by the petition should not be
  made.
    (b)   The summons shall contain or  have  attached  thereto  a  notice
  stating: (i) that a respondent's failure to appear shall result in entry
  of  an order of default; (ii) that the respondent must provide the court
  with proof of his or her income and assets; (iii) that  a  temporary  or
  permanent  order  of  support  will  be  made  on the return date of the
  summons; and (iv) that a respondent's failure to appear  may  result  in
  the  suspension  of  his  or her driving privileges; state professional,
  occupational  and  business  licenses;  and  recreational  licenses  and
  permits.

  S 427. Service  of  summons.  (a)  Personal service of a summons and
  petition may be made by delivery of a true copy thereof  to  the  person
  summoned  at  least  eight  days  before  the  time  stated  therein for
  appearance; or by delivery of  a  true  copy  thereof  to  a  person  of
  suitable  age  and  discretion at the actual place of business, dwelling
  place or usual place of abode of the person to be served and by  mailing
  a  true  copy  thereof  to  the  person  to  be served at his last known
  residence at least eight days before the time stated in the summons  for
  appearance;  proof of service shall identify such person of suitable age
  and discretion and state the date, time and place of service.
    (b) If after reasonable effort, personal  service  is  not  made,  the
  court  may  at  any stage in the proceedings make an order providing for
  substituted service in the manner provided for  substituted  service  in
  the civil practice law and rules.
    (c) In any case, whether or not service is attempted under subdivision
  (a) or (b) of this section, service of a summons and petition under this
  section  may  be effected by mail alone to the last known address of the
  person to be served. Service by mail alone shall be made at least  eight
  days before the time stated in the summons for appearance. If service is
  by  mail  alone,  the court will enter an order of support by default if
  there is proof satisfactory to the court that the respondent had  actual
  notice  of  the  commencement of the proceeding which may be established
  upon sufficient proof that the summons and petition were in fact  mailed
  by  certified  mail  and  signed  for at the respondent's correct street
  address or signed for at the post office. If service by  certified  mail
  at  the  respondent's  correct  street  address  cannot be accomplished,
  service pursuant to subdivisions one, two,  three  or  four  of  section
  three  hundred eight of the civil practice law and rules shall be deemed
  good and sufficient service. Upon failure of the respondent  to  obey  a
  summons  served  in  accordance  with  the provisions of this section by
  means other than mail alone, the court will enter an order of support by
  default. Such order of support shall be made pursuant to the  provisions
  set  forth  in  section  four  hundred  thirteen  of  this  article. The
  respondent shall have the right to make a motion for  relief  from  such
  default order within one year from the date such order was entered.

  S 428. Issuance of warrant; certificate of warrant. (a) The court may
  issue a warrant, directing that  the  respondent  be  arrested,  brought
  before  the  court,  when  a  petition  is  presented to the court under
  section four hundred twenty-three and it appears that
    (i) the summons cannot be served, or
    (ii) the respondent has failed to obey the summons; or
    (iii) the respondent is likely to leave the jurisdiction; or
    (iv) a summons, in the court's opinion, would be ineffectual; or
    (v) the safety of the petitioner is endangered; or
    (vi) a respondent on bail or on parole has failed to appear.
    (b) The petitioner may not serve a warrant upon the respondent, unless
  the court itself grants such permission  upon  the  application  of  the
  petitioner. The clerk of the court may issue to the petitioner or to the
  representative  of  an  incorporated charitable or philanthropic society
  having a legitimate interest in the family a certificate stating that  a
  warrant   for   the  respondent  has  been  issued  by  the  court.  The
  presentation of such certificate by said petitioner or representative to
  any peace officer, acting pursuant to  his  special  duties,  or  police
  officer authorizes him to arrest the respondent and take him to court.
    (c)  A  certificate  of  warrant  expires ninety days from the date of
  issue but may be renewed from time to time by the clerk of the court.
    (d) Rules of court  shall  provide  that  a  record  of  all  unserved
  warrants  be kept and that periodic reports concerning unserved warrants
  be made.

  S 429. Sequestration of respondent's property. Where in a proceeding
  under this article it appears to the court that the  respondent  is  not
  within  the  state, or cannot be found therein, or is concealing himself
  or herself therein, so that process cannot be personally served upon the
  respondent, the court may at any time and from time  to  time  make  any
  order or orders without notice directing the sequestration of his or her
  property,  both  real  and  personal and whether tangible or intangible,
  within the state, and may appoint a receiver thereof, or  by  injunction
  or otherwise take the same into its possession and control. The property
  thus  sequestered and the income therefrom may be applied in whole or in
  part and from time to time, under the direction  of  the  court  and  as
  justice may require, to the payment of such sum or sums as the court may
  deem  it  proper  to  award,  by  order,  and during the pendency of the
  proceeding  or  at  the  termination  thereof,  for  the  education   or
  maintenance  of any of the children of a marriage, or for the support of
  a spouse, or for his or her expenses in bringing and  carrying  on  said
  proceeding;  and  if  the rents and profits of the real estate, together
  with the other property so sequestered, be insufficient to pay the  sums
  of  money  required, the court, upon such terms and conditions as it may
  prescribe, may direct the mortgage or sale of sufficient  of  said  real
  estate  to  pay  such sums. The court may appoint the petitioning spouse
  receiver or sequestrator in such cases. The  court  may  authorize  such
  spouse  to  use  and  occupy,  free of any liability for rent or use and
  occupation or otherwise, any house or other  suitable  property  of  the
  respondent  spouse  as a dwelling for himself or herself with or without
  the children of  the  marriage,  and  may  likewise  turn  over  to  the
  petitioning  spouse  for  the  use  of  such  spouse with or without the
  children of the marriage any  chattel  or  chattels  of  the  respondent
  spouse.  The  relief herein provided for is in addition to any and every
  other remedy to which a spouse may be entitled under the law.

  S 430. Temporary  order  of  protection.  (a)  Upon  the filing of a
  petition under this article, the court for good cause shown may issue  a
  temporary  order  of  protection which may contain any of the provisions
  authorized on the making of an order of protection  under  section  four
  hundred forty-six.
    (b) A temporary order of protection is not a finding of wrongdoing.
    (c)  The  court may issue or extend a temporary order of protection ex
  parte or on notice  simultaneously  with  the  issuance  of  a  warrant,
  directing  that  the respondent be arrested and brought before the court
  pursuant to section four hundred twenty-eight of this article.

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