New York State Law

Family Court Law

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Part 2 - Article 8 - Family Court

PRELIMINARY PROCEDURE

Section Description
821 Originating proceedings.
821-A Preliminary procedure.
822 Person who may originate proceedings.
823 Rules of court for preliminary procedure.
824 Admissibility of statements made during preliminary conference.
825 Issuance of summons.
826 Service of summons.
827 Issuance of warrant; certificate of warrant.
828 Temporary order of protection; temporary order for child support.
  S 821. Originating proceedings. 1. A proceeding under this article is
  originated by the filing of a petition containing the following:
    (a) An allegation  that  the  respondent  assaulted  or  attempted  to
  assault  his  or  her  spouse,  or former spouse, parent, child or other
  member of the same family or household or engaged in disorderly conduct,
  harassment, sexual misconduct, forcible touching, sexual  abuse  in  the
  third  degree,  sexual  abuse  in  the  second  degree  as  set forth in
  subdivision one of section 130.60 of the penal law,  stalking,  criminal
  mischief,  menacing,  reckless  endangerment,  criminal  obstruction  of
  breathing or blood circulation, strangulation,  identity  theft  in  the
  first degree, identity theft in the second degree, identity theft in the
  third  degree,  grand larceny in the fourth degree, grand larceny in the
  third  degree  or  coercion  in  the  second  degree  as  set  forth  in
  subdivisions  one,  two  and  three  of section 135.60 of the penal law,
  toward any such person;
    (b) The relationship of the alleged offender to the petitioner;
    (c) The name of each and every child in the family  or  household  and
  the  relationship  of  the  child,  if any, to the petitioner and to the
  respondent;
    (d) A request for an order of protection or the  use  of  the  court's
  conciliation procedures; and
    (e)  An allegation as to whether any accusatory instrument alleging an
  act specified in paragraph (a) of this  subdivision  has  been  verified
  with  respect  to  the same act alleged in the petition. Appended to the
  copy of the petition provided to the petitioner shall be a copy  of  the
  notice  described in subdivision five of section eight hundred twelve of
  this article.
    2. When family  court  is  not  in  session,  an  arrest  and  initial
  appearance by the defendant or respondent may be in a criminal court, as
  provided in sections one hundred fifty-four-d and one hundred fifty-five
  of this act.

  S 821A. Preliminary  procedure.  1. Upon the filing of a petition
  under this article, the court shall advise the petitioner of  the  right
  to retain legal representation or if indigent, the right to have counsel
  appointed pursuant to section two hundred sixty-two of this act.
    2. Upon the filing of a petition under this article, the court may:
    (a)  issue  a  summons pursuant to section eight hundred twenty-six of
  this  part  or  issue  a  warrant  pursuant  to  section  eight  hundred
  twenty-seven of this part;
    (b)  issue  a temporary order of protection in favor of the petitioner
  and, where appropriate, the petitioner's children or any other  children
  residing  in  the  petitioner's  household,  pursuant  to  section eight
  hundred twenty-eight of this part.
    3. Where the respondent is brought before  the  court  pursuant  to  a
  summons under section eight hundred twenty-six of this part or a warrant
  issued under section eight hundred twenty-seven of this part, or where a
  respondent  voluntarily  appears  before the court after such summons or
  warrant has been issued, the court shall:
    (a) advise the parties of the right to retain legal representation or,
  if indigent, the right to have counsel appointed pursuant to section two
  hundred sixty-two of this act;
    (b) advise the respondent of the allegations contained in the petition
  before the court; and
    (c) provide the respondent with a copy of such petition; and the court
  may:
    (i) order the release of the respondent on his or her own recognizance
  pending further appearances as required by the court;
    (ii) direct that the respondent  post  bail  in  a  manner  authorized
  pursuant  to  section  one hundred fifty-five-a of this act in an amount
  set by the court; or
    (iii) issue a  commitment  order  directing  that  the  respondent  be
  remanded  to  the custody of the county sheriff or other appropriate law
  enforcement official until such time as bail is posted  as  required  by
  the court.
    4.  Where  the court directs that the respondent post bail or that the
  respondent be committed to the custody of a law enforcement official  as
  provided  for herein, and the respondent fails to post bail or otherwise
  remains in custody, a hearing shall be held without  unreasonable  delay
  but  in no event later than one hundred twenty hours after the arrest of
  the respondent or in the event that a Saturday, Sunday, or legal holiday
  occurs during such custody,  one  hundred  forty-four  hours  after  the
  arrest  of  the  respondent,  to  determine  upon  material and relevant
  evidence whether sufficient cause  exists  to  keep  the  respondent  in
  custody. If the court determines that sufficient cause does not exist or
  if  no  hearing  is  timely  held,  the  respondent shall immediately be
  released on the respondent's own recognizance.
    5. (a) At such time as the petitioner first appears before the  court,
  the  court shall advise the petitioner that the petitioner may: continue
  with the hearing and disposition of such petition in the  family  court;
  or  have  the  allegations  contained  therein  heard  in an appropriate
  criminal court; or proceed concurrently  in  both  family  and  criminal
  court.
    (b)  Where  the  petitioner  seeks  to  have  the  petition  heard and
  determined in the family court, the court shall set the matter down  for
  further  proceedings pursuant to the provisions of this article. Nothing
  herein shall be deemed to limit or restrict petitioner's rights to  seek
  to  proceed  directly  in  either  criminal or family court, or both, as
  provided for in section one hundred fifteen  of  this  act  and  section
  100.07 of the criminal procedure law.
    6.  When  both  parties first appear before the court, the court shall
  inquire as to the existence of any other orders of protection  involving
  the parties.

  S 822. Person  who  may originate proceedings. (a) Any person in the
  relation to the respondent of spouse, or former spouse,  parent,  child,
  or member of the same family or household;
    (b) A duly authorized agency, association, society, or institution;
    (c)  A  peace  officer,  acting  pursuant  to his special duties, or a
  police officer;
    (d) A person on the court's own motion.

  S 823. Rules  of court for preliminary procedure. (a) Rules of court
  may authorize the probation service
    (i) to confer  with  any  person  seeking  to  file  a  petition,  the
  potential   petitioner  and  other  interested  persons  concerning  the
  advisability of filing a petition under this article, and
    (ii) to attempt  through  conciliation  and  agreement  informally  to
  adjust  suitable  cases  before a petition is filed over which the court
  apparently would have jurisdiction.
    (b) 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.
    (c) Efforts at adjustment  pursuant  to  rules  of  court  under  this
  section  may  not  extend  for  a period of more than two months without
  leave of a judge of  the  court,  who  may  extend  the  period  for  an
  additional  sixty  days.  Two successive extensions may be granted under
  this section.
    (d) The probation service may not be authorized under this section  to
  compel  any  person  to appear at any conference, produce any papers, or
  visit any place.
    (e) If agreement to cease offensive conduct is  reached,  it  must  be
  reduced  to  writing  and submitted to the family court for approval. If
  the court approves it, the court without further hearing  may  thereupon
  enter  an  order  of  protection in accordance with the agreement, which
  shall be binding upon the respondent and shall  in  all  respects  be  a
  valid  order.  The court record shall show that such order was made upon
  agreement.
  
  S 824. Admissibility of statements made during preliminary conference.
  No  statement  made during a preliminary conference may be admitted into
  evidence at a fact-finding hearing under this act or in a criminal court
  at any time prior to conviction.
  
  S 825. Issuance  of  summons. 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 appear at the court at a time and
  place to answer the petition. proceedings.
  
  S 826. Service  of  summons.  (a)  Unless the court issues a warrant
  pursuant to section eight hundred twenty-seven of this part, 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  the  respondent,  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 827. Issuance of warrant; certificate of warrant. (a) The court may
  issue a warrant, directing that the respondent  be  brought  before  the
  court,  when  a  petition  is presented to the court under section eight
  hundred twenty-one 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) the safety of a child is endangered; or
    (vii) aggravating circumstances  exist  which  require  the  immediate
  arrest  of  the respondent. For the purposes of this section aggravating
  circumstances shall mean physical injury or serious physical  injury  to
  the  petitioner  caused  by  the  respondent,  the  use  of  a dangerous
  instrument against the  petitioner  by  the  respondent,  a  history  of
  repeated  violations  of  prior  orders of protection by the respondent,
  prior convictions for crimes against the petitioner by the respondent or
  the exposure of any family or household member to physical injury by the
  respondent and like incidents, behaviors and occurrences  which  to  the
  court  constitute  an immediate and ongoing danger to the petitioner, or
  any member of the petitioner's family or household.
    (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 828. Temporary  order  of  protection;  temporary  order for child
  support. 1. (a) Upon the filing of a  petition  or  counter-claim  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 eight hundred forty-two,
  provided that the court shall make a determination, and the court  shall
  state such determination in a written decision or on the record, whether
  to  impose  a  condition pursuant to this subdivision, provided further,
  however, that failure to make such a determination shall not affect  the
  validity  of such order of protection. In making such determination, the
  court shall consider, but shall not  be  limited  to  consideration  of,
  whether  the  temporary  order  of  protection  is likely to achieve its
  purpose in the absence of such a condition,  conduct  subject  to  prior
  orders  of  protection,  prior  incidents  of  abuse,  extent of past or
  present injury, threats, drug or alcohol abuse, and access to weapons.
    (b) Upon the filing of a petition  under  this  article,  or  as  soon
  thereafter  as  the petitioner appears before the court, the court shall
  advise the petitioner of the right to proceed in  both  the  family  and
  criminal  courts,  pursuant  to  the  provisions  of section one hundred
  fifteen of this act.
    2. A temporary order of protection is not a finding of wrongdoing.
    3. 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 eight hundred twenty-seven of this article.
    4.  Notwithstanding  the provisions of section eight hundred seventeen
  of this article the court  may,  together  with  a  temporary  order  of
  protection issued pursuant to this section, issue an order for temporary
  child  support,  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 act. An order  making  such
  award  shall  be  deemed to have been issued pursuant to article four of
  this act. Upon making an order for temporary child support  pursuant  to
  this   subdivision,  the  court  shall  advise  the  petitioner  of  the
  availability of  child  support  enforcement  services  by  the  support
  collection  unit  of the local department of social services, to enforce
  the temporary order and to assist in securing continued  child  support,
  and  shall  set  the  support  matter  down  for  further proceedings in
  accordance with article four of this act.
    Where the court determines that the respondent  has  employer-provided
  medical  insurance, the court may further direct, as part of an order of
  temporary  support  under  this  subdivision,  that  a  medical  support
  execution  be  issued  and  served  upon  the  respondent's  employer as
  provided for  in  section  fifty-two  hundred  forty-one  of  the  civil
  practice law and rules.

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