New York State Law
Family Court Law
Consolidated Laws of NY's FCA code
Part 3 - Article 7 - Family Court
PRELIMINARY PROCEDURE
| Section | Description |
|---|---|
| 732 | Originating proceeding to adjudicate need for supervision. |
| 733 | Persons who may originate proceedings. |
| 735 | Preliminary procedure; diversion services. |
| 736 | Issuance of summons. |
| 737 | Service of summons. |
| 738 | Issuance of warrant for respondent or other person legally responsible for care. |
| 739 | Release or detention after filing of petition and prior to order of disposition. |
| 740 | Temporary 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. 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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