Family Court Basics
Although it usually is an excellent idea to be represented by an experienced family court attorney, such representation is not required. Under certain circumstances, the Family Court will provide you with an attorney at no cost to you.There are no filing fees in Family Court.
The party who requests something from the Family Court, such as child support or custody, is known as the “petitioner.” If the petitioner is seeking court action against or relief from another party, the other party is called the “respondent.” If you are the petitioner, the Family Court will give you a summons, which you must have delivered, or, in legal jargon, served upon the respondent. The summons will provide notice of the legal relief that you are requesting and information as to the date, time and place of the hearing.
Family Court – Custody
In New York, the custody of a child is decided by the Supreme Court during a divorce. In other circumstances, custody is decided by the Family Court. A custody action can be brought by a parent, grandparent or a person with a substantial connection to or relationship with the child. In determining custody, the court will base its decision on the best interests of the child.
Before making a determination regarding custody, the judge may order an investigation, which will include a report from a social services agency or a mental health professional. The court will also appoint an attorney to represent the child. All of this can be avoided if all parties in the Family Court action agree on custody. In some counties, a custody case may be handled by a court-appointed referee instead of a judge.
If the parties agree about custody of the child, the judge may take testimony from both parties and enter an order of custody on consent. Such an order avoids the need for a formal hearing. If the parties cannot reach an agreement about custody, the court will hold a hearing, at which it will take testimony from all parties. The court may appoint an attorney to represent the child at the hearing. The court may order an investigation and a report from a social services agency or a mental health professional. After considering the evidence presented, the court will award custody based upon the child's best interests.
In some counties in New York City, a custody or visitation case may be heard by a Family Court "court attorney-referee," who may hear and decide the case and issue orders.
Family Court - Visitation
Visitation can be sought by the non-custodial parent, a grandparent or a sibling. Often custody and visitation are decided together in one action; however a separate action just for visitation is possible. The Family Court will determine visitation issues by considering the best interests of the child.
Family Court –Child Support
Under New York law, the amount of child support is calculated pursuant to the Child Support Standards Act. The parent who does not have physical custody, also known as the non-custodial parent, is legally responsible for the payment of child support. The parent who has physical custody of the child, also known as the custodial parent, may ask, or, in legal jargon, petition the Family Court for an order directing the non-custodial parent to pay child support. The Family Court judge may order that child support be automatically deducted from the non-custodial parent’s salary.
If the child is not emancipated, which in most cases means under 21 and not married or in the military, and is not living with either parent, the child may file a petition in Family Court for child support against either or both of his or her parents.
The Department of Social Services has the right to request child support from the Family Court when the child is receiving public assistance or is living in a foster home and receiving foster care benefits. In such cases, the child support is paid by the non-custodial parent or parents to the government agency providing the benefits.
A party has thirty days to appeal an adverse decision of a Family Court judge. However, the appeal must be based upon the record. In other words, the party must convince the appeals court that the judge’s decision was legally wrong based upon what happened at the hearing. Accordingly, the party can not assert on appeal anything that the party could have said at the hearing but did not,nor can the party argue on appeal that something that said at the hearing was a mistake. This is why it is so important for every party to have an attorney from the outset of the Family Court action.
If the non-custodial parent fails to pay Family Court ordered child support, the petitioner may file a “violation petition” requesting that the Court find that child support was not paid as ordered. The non-custodial parent risks much by not paying child support, including losing his or her drivers’ license and even six months in jail.
In the event of changes in circumstance, either party may request a downward or upward modification of the child support order. Most likely, the Family Court will not approve a request for a downward modification of a child support order if the Court finds that the non-custodial parent is responsible in any way, shape or form for the decrease in income. Every three years, Family Court child support orders are subject to review. The party wishing review after three years would petition the Family Court.
If the non-custodial parent lives in the United States, but not in New York, the custodial parent may still bring an action for child support in New York Family Court under the Uniform Interstate Family Support Act (UIFSA). In fact, UIFSA can be used if the non-custodial parent lives in New York, but in a distant county.
Please visit our section on Child Support for more information.
Family Court – Paternity
In New York, paternity can be decided by a New York Supreme Court within the context of a divorce or otherwise by the Family Court.
The establishment of paternity is important to a child. A child may benefit emotionally from knowing the identity of his or her father. In addition, legal and economic benefits may derive from determining paternity. The establishment of paternity gives a child the legal right to child support from the father. The child may also have inheritance rights. In New York, although a parent is not required to provide for a child in a will, the child does have a right to a portion of the estate of a parent who dies without a will. Further, the establishment of paternity also gives the child the right to health benefits when the father has a health insurance policy that provides such insurance to children, if Social Security benefits are due because the father is disabled or dies, and to share in a wrongful death action if one is brought.
The establishment of paternity also provides the father with legal rights concerning the child. Once paternity is established, the father has rights of visitation and can seek legal custody of the child. A decision concerning custody will always be made in accordance with the best interests of the child. The legal father can object to the mother moving out of New York with the child. Also, once paternity is legally established, no other man can be found to be the father. Further, the child cannot be given up for adoption or foster care without either the consent of the father or a legal action against the father.
Visit our section of Paternity for more information.
Family Court – Spousal Support
To request spousal support, you must seek support from your spouse. Accordingly, you cannot ask for support from someone to whom you are not married. The only exception to this rule is if you are seeking to modify an existing support order regarding an ex-spouse. For more information on spousal support see our section on this subject.
Family Court – Order of Protection
An order of protection can be issued by either the Family Court or the Criminal Court. To request an order of protection, you must meet at least one of the following requirements:
- You must be related to the respondent by blood or marriage
- You must be or have been legally married to the respondent
- You must have had a child with the respondent
- You must be or have been in an intimate relationship with the respondent
When you go to Family Court to request an order of protection, the clerk will have you complete forms. You will need to state why you are requesting the order of protection. Be prepared to give detailed examples of abuse that has occurred.
You will then appear before a Family Court judge. If, after reading your petition and speaking with you, the judge finds that there is sufficient cause to provide you with a temporary order of protection, the judge will issue one. If you need an opportunity to remove your personal possessions, you should ask that this provision be included in your order of protection. The summons that will be served upon the other party involved (the respondent) will provide a date, time and place for a hearing to determine whether the temporary order of protection should become a final order of protection.
Once the temporary order of protection is issued, you must have the respondent served with both the summons and the temporary order. You may have the police serve the papers. If your order of protection states that you may remove your personal possessions, you may request that the police also accompany you to remove those possessions. You should not remove large items,such as furniture. This is your opportunity to take clothing, personal items and documents.
On the return date for the order of protection, you may appear before a different judge, who will determine whether a final order of protection should be issued. A final order of protection can last at least two or as long as five years.
If the responded violates an order of protection, the police will arrest him or her and likely will spend two or three days in jail.
For Family Court matters our consultation fee is $200, which may be applied towards our legal fee if you retain our office to represent you in the Family Court matter. During the consultation, based upon your situation, we will inform you of your rights and options, and we will discuss our legal fee. We accept Visa, Master Card, and American Express credit cards. We offer evening and Saturday appointments. Call us at (718) 625-0800.