New York State Law
Family Court Law
Consolidated Laws of NY's FCA code
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. 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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