New York State Law
Family Court Law
Consolidated Laws of NY's FCA code
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. Top of Page
Index | Article 1 |
Article 2 | Article 3 |
Article 4 | Article 5 |
Article 5A | Article 5B |
Article 6 | Article 7 |
Article 8 | Article 9 |
Article 10 | Article 10A |
Article 10B | Article 10C |
Article 11 | Article 12
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