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Family Court Law

Consolidated Laws of NY's FCA code

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Part 3 - Article 7 - Family Court

PRELIMINARY PROCEDURE

Section Description
732Originating proceeding to adjudicate need for supervision.
733Persons who may originate proceedings.
735Preliminary procedure; diversion services.
736Issuance of summons.
737Service of summons.
738Issuance of warrant for respondent or other person legally responsible for care.
739Release or detention after filing of petition and prior to order of disposition.
740Temporary order of protection.
  S 732.  Originating  proceeding to adjudicate need for supervision. A
  proceeding to adjudicate a person  to  be  in  need  of  supervision  is
  originated by the filing of a petition, alleging:
    (a)  (i)  the  respondent  is  an  habitual truant or is incorrigible,
  ungovernable, or habitually disobedient and beyond the lawful control of
  his or her parents, guardian or lawful custodian, or has been the victim
  of sexual exploitation as defined in subdivision  one  of  section  four
  hundred  forty-seven-a  of  the  social services law, and specifying the
  acts on which the allegations are based and  the  time  and  place  they
  allegedly  occurred. Where habitual truancy is alleged or the petitioner
  is a school district or local educational  agency,  the  petition  shall
  also include the steps taken by the responsible school district or local
  educational  agency  to  improve the school attendance and/or conduct of
  the respondent;
    (ii) the respondent was under eighteen years of age at the time of the
  specified acts;
    (iii) the respondent requires supervision or treatment; and
    (iv) the petitioner has complied with the provisions of section  seven
  hundred thirty-five of this article; or
    (b) the respondent appears to be a sexually exploited child as defined
  in  paragraph (a), (c) or (d) of subdivision one of section four hundred
  forty-seven-a of the social services law but only if the child  consents
  to the filing of a petition under this article.

  S 733. Persons  who may originate proceedings. The following persons
  may originate a proceeding under this article:
    (a) a peace officer, acting pursuant  to  his  special  duties,  or  a
  police officer;
    (b) the parent or other person legally responsible for his care;
    (c)  any  person  who  has  suffered injury as a result of the alleged
  activity of a person alleged to be in need of supervision, or a  witness
  to such activity;
    (d)  the recognized agents of any duly authorized agency, association,
  society or institution; or
    (e) the presentment agency that consented  to  substitute  a  petition
  alleging  the  person is in need of supervision for a petition alleging,
  that the person is a juvenile delinquent pursuant to section 311.4.

  S 735.  Preliminary procedure; diversion services. (a) Each county and
  any city having  a  population  of  one  million  or  more  shall  offer
  diversion  services  as  defined in section seven hundred twelve of this
  article to youth who are at risk of being the subject  of  a  person  in
  need of supervision petition. Such services shall be designed to provide
  an  immediate  response  to  families in crisis, to identify and utilize
  appropriate alternatives to detention and to divert youth from being the
  subject of a petition in family court. Each county and such  city  shall
  designate  either  the  local  social services district or the probation
  department as lead  agency  for  the  purposes  of  providing  diversion
  services.
    (b) The designated lead agency shall:
    (i)  confer  with any person seeking to file a petition, the youth who
  may be a potential respondent, his or her family, and  other  interested
  persons,  concerning  the  provision  of  diversion  services before any
  petition may be filed; and
    (ii) diligently attempt to prevent the filing of a petition under this
  article or, after the petition is filed, to prevent the placement of the
  youth into foster care; and
    (iii) assess whether the youth would benefit from residential  respite
  services; and
    (iv)  determine  whether  alternatives to detention are appropriate to
  avoid remand of the youth to detention; and
    (v) determine whether an assessment of the  youth  for  substance  use
  disorder  by  an  office  of  alcoholism  and  substance  abuse services
  certified provider is necessary when a person seeking to file a petition
  alleges in such petition that the youth is suffering  from  a  substance
  use  disorder  which could make the youth a danger to himself or herself
  or others. Provided, however, that notwithstanding any  other  provision
  of law to the contrary, the designated lead agency shall not be required
  to pay for all or any portion of the costs of such assessment or for any
  substance use disorder or detoxification services, except in cases where
  medical  assistance  for needy persons may be used to pay for all or any
  portion of the costs of such  assessment  or  services.  The  office  of
  alcoholism  and  substance  abuse  services  shall  make  a  list of its
  certified providers available to the designated lead agency.
    (c) Any person or agency seeking to file a petition pursuant  to  this
  article  which does not have attached thereto the documentation required
  by subdivision (g) of this section shall be referred by the clerk of the
  court to the designated lead agency which shall schedule  and  hold,  on
  reasonable  notice to the potential petitioner, the youth and his or her
  parent or other person legally responsible for his or her care, at least
  one conference in order  to  determine  the  factual  circumstances  and
  determine  whether  the  youth  and  his  or  her  family should receive
  diversion services pursuant to this section.  Diversion  services  shall
  include  clearly  documented  diligent  attempts  to provide appropriate
  services to the youth and his or her family unless it is determined that
  there is no substantial likelihood that the youth and his or her  family
  will  benefit  from  further  diversion  attempts.  Notwithstanding  the
  provisions of section two hundred sixteen-c of this act, the clerk shall
  not accept for filing under this part any petition that  does  not  have
  attached  thereto  the documentation required by subdivision (g) of this
  section.
    (d) Diversion services shall include documented diligent  attempts  to
  engage  the  youth  and  his  or  her  family  in appropriately targeted
  community-based services, but shall not be limited to:
    (i) providing, at the first contact, information on  the  availability
  of  or a referral to services in the geographic area where the youth and
  his or her family are located that may be of  benefit  in  avoiding  the
  need  to file a petition under this article; including the availability,
  for up to twenty-one days, of a  residential  respite  program,  if  the
  youth  and his or her parent or other person legally responsible for his
  or her care agree, and the availability of other non-residential  crisis
  intervention  programs  such  as family crisis counseling or alternative
  dispute resolution programs or an  educational  program  as  defined  in
  section four hundred fifty-eight-l of the social services law.
    (ii) scheduling and holding at least one conference with the youth and
  his  or  her  family  and  the  person  or representatives of the entity
  seeking to file a petition under this article concerning alternatives to
  filing a petition and services that are  available.  Diversion  services
  shall   include   clearly   documented   diligent  attempts  to  provide
  appropriate services to the youth and his or her family before it may be
  determined that there is no substantial likelihood that  the  youth  and
  his or her family will benefit from further attempts.
    (iii) where the entity seeking to file a petition is a school district
  or local educational agency, the designated lead agency shall review the
  steps  taken  by  the  school  district  or  local educational agency to
  improve the youth's attendance and/or conduct in school and  attempt  to
  engage  the  school  district  or  local  educational  agency in further
  diversion attempts, if it appears from review that such attempts will be
  beneficial to the youth.
    (e) The designated lead agency shall maintain a  written  record  with
  respect  to  each  youth  and  his  or  her family for whom it considers
  providing or provides diversion services pursuant to this  section.  The
  record  shall  be made available to the court at or prior to the initial
  appearance of the youth in any proceeding  initiated  pursuant  to  this
  article.
    (f)  Efforts  to  prevent  the  filing  of a petition pursuant to this
  section may extend until the  designated  lead  agency  determines  that
  there  is no substantial likelihood that the youth and his or her family
  will benefit from further attempts. Efforts  at  diversion  pursuant  to
  this  section  may  continue  after  the  filing of a petition where the
  designated lead agency determines that the youth and his or  her  family
  will  benefit  from  further attempts to prevent the youth from entering
  foster care.
    (g) (i) The designated lead agency shall promptly give written  notice
  to the potential petitioner whenever attempts to prevent the filing of a
  petition  have  terminated,  and  shall  indicate in such notice whether
  efforts were successful. The  notice  shall  also  detail  the  diligent
  attempts  made  to divert the case if a determination has been made that
  there is no substantial likelihood that  the  youth  will  benefit  from
  further  attempts.  No  persons  in  need of supervision petition may be
  filed pursuant to this article during the  period  the  designated  lead
  agency is providing diversion services. A finding by the designated lead
  agency  that  the  case  has been successfully diverted shall constitute
  presumptive  evidence  that  the  underlying   allegations   have   been
  successfully  resolved  in  any  petition  based  upon  the same factual
  allegations. No petition may be filed pursuant to this  article  by  the
  parent or other person legally responsible for the youth where diversion
  services  have  been  terminated because of the failure of the parent or
  other person legally responsible for the youth to consent to or actively
  participate.
    (ii) The clerk of the court shall accept a petition for filing only if
  it has attached thereto the following:
    (A) if the potential petitioner is the parent or other person  legally
  responsible  for  the  youth,  a  notice from the designated lead agency
  indicating there is no  bar  to  the  filing  of  the  petition  as  the
  potential petitioner consented to and actively participated in diversion
  services; and
    (B)  a  notice  from  the  designated  lead agency stating that it has
  terminated diversion services because it has determined that there is no
  substantial likelihood that the youth and his or her family will benefit
  from further attempts, and that  the  case  has  not  been  successfully
  diverted.
    (h)  No  statement made to the designated lead agency or to any agency
  or organization to which the potential respondent, prior to  the  filing
  of  the  petition,  or if the petition has been filed, prior to the time
  the respondent has been notified that attempts at diversion will not  be
  made  or  have  been  terminated,  or  prior  to  the  commencement of a
  fact-finding hearing  if  attempts  at  diversion  have  not  terminated
  previously,  may be admitted into evidence at a fact-finding hearing or,
  if the proceeding is transferred to a criminal court, at any time  prior
  to a conviction.

  S 736. Issuance of summons. (1) 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 and his parent or other person  legally
  responsible for his care, or with whom he is domiciled, to appear at the
  court  at  a  time  and  place named to answer the petition. The summons
  shall be signed by the court or by the clerk  or  deputy  clerk  of  the
  court. If those on whom a summons must be served are before the court at
  the  time  of  the  filing of a petition, the provisions of part four of
  this article shall be followed.
    (2) In proceedings originated pursuant to subdivision (b)  of  section
  seven hundred thirty-three of this article, the court shall cause a copy
  of  the  petition  and  notice  of  the time and place to be heard to be
  served upon any  parent  of  the  respondent  or  other  person  legally
  responsible  for  the respondent's care who has not signed the petition,
  provided that the  address  of  such  parent  or  other  person  legally
  responsible is known to the court or is ascertainable by the court. Such
  petition shall include a notice that, upon placement of the child in the
  care  and  custody  of  the  department  of social services or any other
  agency, said parent may be named as a  respondent  in  a  child  support
  proceeding  brought pursuant to article four of this act.  Service shall
  be made by the clerk of the court by mailing such notice and petition by
  ordinary first class  mail  to  such  parent  or  other  person  legally
  responsible at such person's last known residence.
    (3) In proceedings originated pursuant to subdivision (a), (c), (d) or
  (e)  of  section  seven  hundred thirty-three of this article, the court
  shall cause a copy of the petition and notice of the time and  place  to
  be heard to be served upon each parent of the respondent or other person
  legally responsible for the respondent's care, provided that the address
  of such parent or other person legally responsible is known to the court
  or  is ascertainable by the court. Service shall be made by the clerk of
  the court by mailing such notice and petition by  ordinary  first  class
  mail to such parent or other person legally responsible at such person's
  last known residence.

  S 737. Service of summons. (a) Service of a summons and petition shall
  be  made  by  delivery  of a true copy thereof to the person summoned at
  least twenty-four hours before the time stated therein  for  appearance.
  If so requested by one acting on behalf of the respondent or by a parent
  or  other  person  legally responsible for his care, the court shall not
  proceed with the hearing or proceeding earlier  than  three  days  after
  such 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
  civil process in courts of record.
  
  S 738. Issuance  of  warrant  for respondent or other person legally
  responsible for care. The court may issue a warrant, directing that  the
  respondent or other person legally responsible for his care or with whom
  he  is  domiciled  be brought before the court, when a petition is filed
  with the court under this article and it appears that
    (a) the summons cannot be served; or
    (b) the respondent or other person has refused to obey the summons; or
    (c)  the  respondent  or  other  person  is  likely   to   leave   the
  jurisdiction; or
    (d) a summons, in the court's opinion, would be ineffectual; or
    (e) a respondent on bail or on parole has failed to appear.
    A  warrant  issued for a respondent under this section shall expire at
  the end of six months from the date of its issuance, unless extended for
  an additional period of not more than six months upon application by the
  petitioner for good cause shown.
  
  S 739. Release  or  detention  after filing of petition and prior to
  order of disposition. (a) After the filing of a petition  under  section
  seven  hundred  thirty-two of this part, the court in its discretion may
  release the respondent or direct his or her detention. If the respondent
  may be a sexually exploited child  as  defined  in  subdivision  one  of
  section four hundred forty-seven-a of the social services law, the court
  may  direct  the  respondent to an available short-term safe house as an
  alternative to detention. However, the court shall not direct  detention
  unless  it  finds  and  states the facts and reasons for so finding that
  unless the respondent is detained there  is  a  substantial  probability
  that  the respondent will not appear in court on the return date and all
  available alternatives to detention have been exhausted.
    (b) Unless the respondent waives a determination that  probable  cause
  exists  to  believe  that  he  is  a  person  in need of supervision, no
  detention under this section may last more than three  days  (i)  unless
  the  court  finds, pursuant to the evidentiary standards applicable to a
  hearing on a felony complaint in a criminal court,  that  such  probable
  cause exists, or (ii) unless special circumstances exist, in which cases
  such  detention  may  be extended not more than an additional three days
  exclusive of Saturdays, Sundays and public holidays.
    (c) Upon a finding of facts and  reasons  which  support  a  detention
  order  pursuant to subdivision (a) of this section, the court shall also
  determine and state in any order directing detention:
    (i) whether continuation of the respondent in  the  respondent's  home
  would  be  contrary  to the best interests of the respondent based upon,
  and limited to, the facts and circumstance available to the court at the
  time of the court's determination in accordance with this section; and
    (ii) where appropriate, whether reasonable efforts were made prior  to
  the  date of the court order directing detention in accordance with this
  section, to prevent or eliminate the need for removal of the  respondent
  from  his or her home or, if the respondent had been removed from his or
  her home prior to the court appearance pursuant to this  section,  where
  appropriate,  whether  reasonable  efforts were made to make it possible
  for the respondent to safely return home.

  S 740. 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  seven
  hundred fifty-nine.
    (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 seven hundred thirty-eight of this part.

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