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Family Court Law

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Part 3 - Article 4 - Family Court

HEARING

Section Description
431 Preliminary procedure on warrant.
432 Procedure before court.
433 Enacted without section heading.
434 Order for temporary child support.
434-A Order for temporary spousal support.
435 Procedure; adjournment; confidentiality of requests.
436 Competence of spouse.
437 Presumption of sufficient means.
437-A Referral to work programs.
438 Counsel fees.
439 Support magistrates.
439-A Expedited process.
  S 431. Preliminary  procedure  on  warrant. (a) When a respondent is
  taken into custody pursuant to a warrant issued by a family court in New
  York city under section four hundred twenty-eight,  he  shall  be  taken
  before  the  court  issuing  the warrant if the respondent is taken into
  custody in New York city. If the respondent is taken into custody  in  a
  county not within New York city, he shall be taken before a family judge
  in that county.
    (b)  When  a  respondent  is  taken into custody pursuant to a warrant
  issued by a family court in a county not within the city of New York, he
  shall be taken before the court issuing the warrant if the respondent is
  taken into custody in the  county  in  which  the  court  sits.  If  the
  respondent  is  taken  into  custody  in a different county, he shall be
  brought before a family court judge in that county.

  S 432. Procedure before court. The court before whom the respondent is
  taken  under  section four hundred thirty-one may require an undertaking
  to appear or in default thereof may  place  the  respondent  in  custody
  until the hearing commences.

  S 433. (a)  Hearing. Upon  the  return  of  the  summons  or when a
  respondent is brought before the court pursuant to a warrant, the  court
  shall  proceed  to  hear and determine the case. The respondent shall be
  informed of the contents of  the  petition,  advised  of  his  right  to
  counsel,  and  shall  be  given  opportunity  to be heard and to present
  witnesses. The court may exclude the public from the  court  room  in  a
  proper case.
    (b) If the initial return of a summons or warrant is before a judge of
  the  court,  when  support is an issue, the judge must make an immediate
  order, either temporary or  permanent  with  regard  to  support.  If  a
  temporary order is made, the court shall refer the issue of support to a
  support  magistrate  for  final  determination pursuant to sections four
  hundred  thirty-nine  and  four  hundred  thirty-nine-a  of  this   act.
  Procedures shall be established by the chief administrator of the courts
  which  shall  provide  for  the  disposition of all support matters or a
  referral  to  a  support  magistrate  prior  to  the  conclusion  of   a
  respondent's  first  appearance  before the court. Such procedures shall
  provide for referral of support issues by appropriate clerical staff  of
  the  family court at any time after a petition has been presented to the
  court.
    (c) In any proceeding under this article, the court may permit a party
  or a witness to be deposed or  to  testify  by  telephone,  audio-visual
  means,  or  other electronic means at a designated family court or other
  location:
    (i) where such party or witness resides in a county other than that of
  the family court where the case is pending and that  of  any  contiguous
  county;  provided,  however,  that for the purposes of this section, the
  five counties of New York city shall be treated as one county;
    (ii) where such party or witness is presently incarcerated and will be
  incarcerated on the date on which the hearing or deposition is scheduled
  and is not expected to be released within a reasonable  period  of  time
  after the date on which the hearing or deposition is scheduled; or
    (iii)  where  the  court determines that it would be an undue hardship
  for such party or witness to testify or to  be  deposed  at  the  family
  court where the case is pending.
    (d)  Any such deposition or testimony taken by telephone, audio-visual
  means or other electronic means in accordance with  subdivision  (c)  of
  this  section shall be recorded and preserved for transcription. Where a
  party or witness is deposed or testifies by telephone,  audio-visual  or
  other  electronic  means  pursuant to this section, documentary evidence
  referred to by a party or witness or the court  may  be  transmitted  by
  facsimile, telecopier, or other electronic means and may not be excluded
  from  evidence  by  reason  of  an  objection  based  on  the  means  of
  transmission. The chief administrator of  the  courts  shall  promulgate
  rules  to  facilitate the taking of testimony by telephone, audio-visual
  means or other electronic means.

  S 434. Order  for  temporary  child support. The court shall make an
  order for temporary child support pending a final determination,  in  an
  amount  sufficient  to meet the needs of the child, without a showing of
  immediate or emergency need. The court shall make an order for temporary
  child support notwithstanding that information with  respect  to  income
  and  assets of the respondent may be unavailable. Where such information
  is available, the court may make an award for  temporary  child  support
  pursuant  to  the  formula  set forth in subdivision one of section four
  hundred thirteen of this article.

  S 434-a. Order  for temporary spousal support. The court may make an
  order for temporary  spousal  support  pending  a  final  determination,
  notwithstanding  that  information  with respect to income and assets of
  the respondent may be unavailable.

  S 435. Procedure;  adjournment;  confidentiality  of  requests.  (a)
  Hearings are conducted by the  court  without  a  jury.  The  court  may
  adjourn  the hearing to enable it to make inquiry into the surroundings,
  conditions and capacities of the child, into the financial abilities and
  responsibilities of both parents and for  other  proper  cause.  If  the
  court  so adjourns the hearing, it may require the respondent to give an
  undertaking to appear or in default thereof may  commit  him  until  the
  hearing resumes.
    (b)  Hearings are conducted without a jury. The support magistrate may
  adjourn the hearing in order to  make  inquiry  into  the  surroundings,
  conditions  and capacities of the child and into the financial abilities
  and  responsibilities  of  both  parents  and  for  other  proper  cause
  including  a referral of issues required to be determined by a judge. If
  the support magistrate so adjourns the hearing, the  support  magistrate
  shall  make a temporary order of support, pending a final determination,
  and may require the respondent to give an undertaking to  appear  or  in
  default  thereof  may, subject to the provisions in section four hundred
  thirty-nine of this act and confirmation by a judge, commit him  or  her
  until  the  hearing resumes. The support magistrate shall enter an order
  of support on default if the respondent fails to answer or appear  after
  having been properly served.
    (c)  Reports prepared by the probation service for use by the court at
  any time prior to the making of an order of disposition shall be  deemed
  confidential  information  furnished  to  the court which the court in a
  proper case may, in its discretion, withhold from or disclose  in  whole
  or  in  part to the support magistrate, child's attorney, counsel, party
  in interest, or other appropriate person. Such reports may not  be  made
  available  to  the court prior to a determination that the respondent is
  liable under this article for the support of the petitioner.

  S 436. Competence  of  spouse.  Wives  and  husbands  are  competent
  witnesses against each other in a hearing  under  section  four  hundred
  thirty-three and may testify to non-access in such a hearing.

  S 437. Presumption  of sufficient means. A respondent is prima facie
  presumed in a  hearing  under  section  four  hundred  thirty-three  and
  section  four hundred fifty-four to have sufficient means to support his
  or her spouse and children under the age of twenty-one years.

  S 437-a. Referral  to work programs. In any proceeding to establish,
  decrease or enforce an order of  support,  if  the  support  obligor  is
  unemployed,   the   court  may  require  the  support  obligor  to  seek
  employment, or to participate in job training, employment counseling  or
  other programs designed to lead to employment provided such programs are
  available.  The  court  shall  not  require  the support obligor to seek
  employment or to participate in job training, employment counseling,  or
  other  programs designed to lead to employment under this section if the
  support obligor is in receipt of supplemental security income or  social
  security disability benefits.

  S 438. Counsel  fees.  (a)  In  any  proceeding  under this article,
  including proceedings for support of  a  spouse  and  children,  or  for
  support  of  children  only,  or  at any hearing to modify or enforce an
  order entered in that proceeding or a proceeding to modify a  decree  of
  divorce,  separation,  or  annulment,  including an appeal under article
  eleven, the court may allow counsel fees at any stage of the proceeding,
  to the attorney representing the spouse,  former  spouse  or  person  on
  behalf of children.
    (b)  In any proceeding for failure to obey any lawful order compelling
  payment of support of a spouse or former  spouse  and  children,  or  of
  children  only,  the  court  shall, upon a finding that such failure was
  willful,  order  respondent  to  pay  counsel  fees  to   the   attorney
  representing  the  petitioner  or  person  on  behalf  of  the children.
  Representation by an attorney pursuant to paragraph (b)  of  subdivision
  nine  of  section  one hundred eleven-b of the social services law shall
  not preclude an award of  counsel  fees  to  an  applicant  which  would
  otherwise be allowed under this section.

  S 439.  Support  magistrates.  * (a)  The  chief administrator of the
  courts shall  provide,  in  accordance  with  subdivision  (f)  of  this
  section,   for  the  appointment  of  a  sufficient  number  of  support
  magistrates  to  hear  and  determine  support  proceedings.  Except  as
  hereinafter  provided,  support  magistrates shall be empowered to hear,
  determine and grant any relief within the powers of  the  court  in  any
  proceeding  under  this  article,  articles five, five-A, and five-B and
  sections two hundred thirty-four and two  hundred  thirty-five  of  this
  act, and objections raised pursuant to section five thousand two hundred
  forty-one of the civil practice law and rules. Support magistrates shall
  not be empowered to hear, determine and grant any relief with respect to
  issues  specified  in  section  four hundred fifty-five of this article,
  issues of contested paternity involving claims  of  equitable  estoppel,
  custody,  visitation  including  visitation  as a defense, and orders of
  protection or exclusive possession of the home, which shall be  referred
  to  a judge as provided in subdivision (b) or (c) of this section. Where
  an order of filiation is issued by a judge in a paternity proceeding and
  child support is  in  issue,  the  judge,  or  support  magistrate  upon
  referral  from  the  judge,  shall  be  authorized to immediately make a
  temporary or final order of support, as applicable. A support magistrate
  shall have the authority to hear and decide motions and issue  summonses
  and  subpoenas  to  produce  persons  pursuant  to  section  one hundred
  fifty-three of this act, hear and decide proceedings and issue any order
  authorized by subdivision (g)  of  section  five  thousand  two  hundred
  forty-one  of  the  civil  practice  law  and  rules, issue subpoenas to
  produce prisoners pursuant to section two thousand three hundred two  of
  the  civil  practice  law  and  rules  and make a determination that any
  person before the support magistrate is in violation of an order of  the
  court as authorized by section one hundred fifty-six of this act subject
  to  confirmation by a judge of the court who shall impose any punishment
  for such violation as provided by law.  A  determination  by  a  support
  magistrate  that  a  person  is  in  willful violation of an order under
  subdivision three of section four hundred fifty-four of this article and
  that  recommends  commitment  shall  be  transmitted  to  the   parties,
  accompanied  by  findings  of  fact, but the determination shall have no
  force and effect until confirmed by a judge of the court.
    * NB Effective until August 31, 2017
    * (a)  The  chief  administrator  of  the  courts  shall  provide,  in
  accordance  with subdivision (f) of this section, for the appointment of
  a sufficient number of support magistrates to hear and determine support
  proceedings. Except as hereinafter provided, support  magistrates  shall
  be  empowered  to hear, determine and grant any relief within the powers
  of the court in  any  proceeding  under  this  article,  articles  five,
  five-A,  and five-B and sections two hundred thirty-four and two hundred
  thirty-five of this act, and objections raised pursuant to section  five
  thousand  two  hundred  forty-one  of  the civil practice law and rules.
  Support magistrates shall not be empowered to hear, determine and  grant
  any  relief  with  respect  to  issues specified in section four hundred
  fifty-five of this article,  issues  of  contested  paternity  involving
  claims  of  equitable estoppel, custody, visitation including visitation
  as a defense, and orders of protection or exclusive  possession  of  the
  home,  which shall be referred to a judge as provided in subdivision (b)
  or (c) of this section. Where an order of filiation is issued by a judge
  in a paternity proceeding and child support is in issue, the  judge,  or
  support  magistrate upon referral from the judge, shall be authorized to
  immediately make a temporary or final order of support, as applicable. A
  support magistrate shall have the authority to hear and  decide  motions
  and issue summonses and subpoenas to produce persons pursuant to section
  one  hundred  fifty-three  of  this act, hear and decide proceedings and
  issue any order authorized by subdivision (g) of section  five  thousand
  two  hundred  forty-one  of  the  civil  practice  law  and rules, issue
  subpoenas  to  produce  prisoners pursuant to section two thousand three
  hundred two of the civil practice law and rules and make a determination
  that any person before the support magistrate  is  in  violation  of  an
  order  of  the  court  as authorized by section one hundred fifty-six of
  this act subject to confirmation by a  judge  of  the  court  who  shall
  impose  any  punishment  for  such  violation  as  provided  by  law.  A
  determination by a support  magistrate  that  a  person  is  in  willful
  violation  of  an  order under subdivision three of section four hundred
  fifty-four of this article  and  that  recommends  commitment  shall  be
  transmitted  to  the  parties,  accompanied by findings of fact, but the
  determination shall have no force and effect until confirmed by a  judge
  of the court.
    * NB Effective August 31, 2017
    (b)  In  any  proceeding  to  establish  paternity which is heard by a
  support magistrate, the support magistrate shall advise the  mother  and
  putative  father  of  the  right  to be represented by counsel and shall
  advise the mother and putative father of their right to  blood  grouping
  or  other  genetic  marker  or DNA tests in accordance with section five
  hundred thirty-two of this act. The support magistrate shall order  that
  such  tests  be  conducted  in  accordance  with  section  five  hundred
  thirty-two of this act. The support magistrate  shall  be  empowered  to
  hear  and  determine all matters related to the proceeding including the
  making of an  order  of  filiation  pursuant  to  section  five  hundred
  forty-two  of  this  act,  provided,  however, that where the respondent
  denies paternity and paternity is contested on the grounds of  equitable
  estoppel, the support magistrate shall not be empowered to determine the
  issue  of paternity, but shall transfer the proceeding to a judge of the
  court for a determination of the issue of paternity. Where an  order  of
  filiation  is  issued  by  a  judge  in a paternity proceeding and child
  support is in issue, the judge, or support magistrate upon referral from
  the judge, shall be authorized to immediately make a temporary or  final
  order  of support, as applicable. Whenever an order of filiation is made
  by a support magistrate, the support magistrate also shall make a  final
  or temporary order of support.
    (c)  The  support  magistrate,  in  any  proceeding  in  which  issues
  specified in section four hundred fifty-five of this act, or  issues  of
  custody,  visitation,  including  visitation  as  a  defense,  orders of
  protection or exclusive possession of the home are present or  in  which
  paternity  is contested on the grounds of equitable estoppel, shall make
  a temporary order of support and refer the proceeding to a  judge.  Upon
  determination  of  such  issue  by  a  judge, the judge may make a final
  determination  of  the  issue  of  support,  or  immediately  refer  the
  proceeding  to  a  support  magistrate for further proceedings regarding
  child support or other matters  within  the  authority  of  the  support
  magistrate.
    (d)  Rules  of  evidence  shall  be applicable in proceedings before a
  support magistrate. A support magistrate shall have the power  to  issue
  subpoenas,  to  administer  oaths and to direct the parties to engage in
  and permit such disclosure as will expedite the disposition  of  issues.
  The  assignment  of  proceedings and matters to support magistrates, the
  conduct of the trial before  a  support  magistrate,  the  contents  and
  filing  of  a support magistrate's findings of fact and decision and all
  matters incidental to proceedings before support magistrates shall be in
  accordance with rules provided for by the  chief  administrator  of  the
  courts.  Proceedings  held  before  a support magistrate may be recorded
  mechanically as provided by the chief administrator  of  the  courts.  A
  transcript  of  such proceeding may be made available in accordance with
  the rules of the chief administrator of the courts.
    (e)  The  determination of a support magistrate shall include findings
  of fact and, except  with  respect  to  a  determination  of  a  willful
  violation  of  an  order under subdivision three of section four hundred
  fifty-four of this article where commitment is recommended  as  provided
  in subdivision (a) of this section, a final order which shall be entered
  and  transmitted  to the parties. Specific written objections to a final
  order of a support magistrate may be filed  by  either  party  with  the
  court  within  thirty  days  after  receipt  of the order in court or by
  personal service, or, if the objecting party or parties did not  receive
  the  order  in  court  or  by  personal  service, thirty-five days after
  mailing of the order to such party or parties. A party filing objections
  shall serve a copy of such objections upon the opposing party, who shall
  have thirteen days from  such  service  to  serve  and  file  a  written
  rebuttal  to  such  objections. Proof of service upon the opposing party
  shall be filed with the court at the time of filing  of  objections  and
  any  rebuttal.  Within  fifteen days after the rebuttal is filed, or the
  time to file such rebuttal has expired,  whichever  is  applicable,  the
  judge,  based  upon a review of the objections and the rebuttal, if any,
  shall (i) remand one or more issues of fact to the  support  magistrate,
  (ii)  make,  with  or  without  holding  a  new  hearing, his or her own
  findings of fact and order, or (iii) deny the objections. Pending review
  of the objections and the rebuttal, if any, the  order  of  the  support
  magistrate  shall  be in full force and effect and no stay of such order
  shall be granted. In the event a new order is issued, payments  made  by
  the  respondent  in excess of the new order shall be applied as a credit
  to future support obligations. The final order of a support  magistrate,
  after  objections  and  the  rebuttal,  if  any, have been reviewed by a
  judge, may be appealed pursuant to article eleven of this act.
    (f) The chief administrator shall promulgate  written  rules  for  the
  selection,  appointment,  reappointment,  compensation  and  training of
  support magistrates, who shall be attorneys admitted to the practice  of
  law   in  this  state  for  at  least  three  years  and  who  shall  be
  knowledgeable with respect to the family court  and  federal  and  state
  support  law  and  programs. Support magistrates shall be appointed on a
  full-time basis for a term of three years and  may  be  reappointed  for
  subsequent  terms  which  shall be five years in length, except that the
  rules promulgated hereunder may permit  the  appointment  of  an  acting
  support  magistrate  to  serve  during a support magistrate's authorized
  leave of absence. Where it  is  determined  that  the  employment  of  a
  full-time  support  magistrate is not required, one or more counties may
  agree to share the services of  a  full-time  support  magistrate  or  a
  support magistrate may be appointed to serve within one or more counties
  on a part-time basis.

  S 439-a. Expedited process. (a) When used in this section, expedited
  process means a process in effect in the family court which reduces  the
  processing  time  of support order establishment and enforcement efforts
  from the date of successful service of process on the respondent to  the
  date  on which a support obligation or enforcement order is entered, the
  petition is voluntarily withdrawn or the petition is  dismissed  on  the
  merits or for lack of jurisdiction of the respondent, by the referral of
  proceedings  to  hearing examiners appointed and qualified under section
  four hundred thirty-nine of this article and exercising the  powers  set
  forth in such section.
    (b)  The  chief  administrator  shall  assign  a  sufficient number of
  support magistrates to ensure that such expedited process shall  conform
  to  the  requirements  of  such  case processing as set forth in federal
  statutes and regulations promulgated by the federal secretary of  health
  and human services.
    (c)  The  use  of  an  expedited  process shall be required (i) in any
  county which has a population of four hundred thousand or more or  which
  is wholly within a city and (ii) in any county which has a population of
  less  than  four  hundred  thousand and for which the state has not been
  granted an exemption from the  federal  expedited  process  required  by
  federal  statutes and regulations of the federal secretary of health and
  human services.
    (d) The chief administrator of the courts may  request  of  the  state
  commissioner  of  social  services  that  an  exemption  from  use of an
  expedited process as required by this section and section  four  hundred
  thirty-nine  of  this  article in counties which are not wholly within a
  city and which have a population of less than four hundred  thousand  be
  applied  for  from  the  federal  secretary of health and human services
  pursuant to federal statutes and regulations providing for waivers  from
  the  federal  expedited process requirements. The chief administrator of
  the courts shall, upon making such a request, provide  such  information
  in  the  possession of the office of court administration which supports
  an exemption from use of an expedited process to the state  commissioner
  of  social  services.  Upon  receipt  of  such  a request from the chief
  administrator of the courts, the state commissioner of  social  services
  with the approval of the local commissioner of social services may apply
  to the federal secretary of health and human services for exemption from
  use  of an expedited process. If application for such exemption is made,
  the state commissioner of social services shall, promptly upon receiving
  notification from the federal department of health and  human  services,
  inform the chief administrator of the courts and the local commissioners
  of social services of the granting or denial of any such application.

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