FAMILY COURT PROCEDURE Original submission by  Christopher S. Mattingly, Esq.  Lipsitz Green Scime Cambria LLP  Buffalo, NY  Updated by  Elise C. Powe...
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FAMILY COURT PROCEDURE Original submission by  Christopher S. Mattingly, Esq.  Lipsitz Green Scime Cambria LLP  Buffalo, NY  Updated by  Elise C. Powers, Esq.  Jennifer Powers Rutkey, Esq.  Jenifer M. Wharton, Esq.  Gordon, Tepper & DeCoursey, LLP  Glenville, NY 


JURISDICTION AND VENUE 1. Historical Overview 2. Exclusive Original Jurisdiction 3. “Other” Original Jurisdiction 4. Concurrent Jurisdiction 5. Native American Children 6. Venue 7. Change of Venue 8. Interplay with Matrimonial Actions


PROCEDURE – GENERALLY 1. Family Court Act 2. Civil Practice Law and Rules 3. Court Rules 4. Local Rules of Practice and/or Custom 5. Support Magistrates


a. Jurisdiction over child support, Family Court Act Sec. 439(a) b. Jurisdiction over admitted paternity matters, Family Court Act Sec. 439(b) c. No jurisdiction over custody or visitation, Family Court Act Sec. 439(c) d. No jurisdiction to punish for contempt, Family Court Act Sec. 439 (a) e. Court rules applicable to support magistrates: 22 NYCRR Sec. 205.34-205.37 6. Filing/Documents/Parties/Sample Forms





The New York Family Court Act (F.C.A.) was established in 1962. See Practice Commentaries, McKinney’s F.C.A. § 111. The creation of the Family Court combined jurisdiction of several prior courts, including the Children's Court and the New York City Domestic Relations Court, and its goal was to create a court capable of hearing and determining a vast array of legal disputes involving family integrity. 2.


The jurisdiction of the Family Court is explicitly set forth in the Family Court Act. The Family Court’s jurisdiction does not extend to divorces, separations or annulments; rather, these matters must be brought in the Supreme Court. Similarly, Family Court does not have equity jurisdiction. The Family Court has jurisdiction in a number of matters, which are set forth in Section 115 of the Family Court Act. These matters include: a.

Child abuse and neglect proceedings (F.C.A. Art. 10);


Spousal and child support proceedings (F.C.A. Art. 4);


Proceedings to determine paternity and for support of children born out of wedlock (F.C.A. Art. 5);


Permanent termination proceedings based on permanent neglect (F.C.A. Art. 10);


Proceedings concerning a person in need of supervision (F.C.A. Art. 7);


Family offense and orders of protection (F.C.A. Art. 8);


Juvenile delinquency proceedings (F.C.A. Art. 3);




The Family Court also has jurisdiction over the following proceedings: a.

Conciliation proceedings (F.C.A. § 921);


Custody proceedings when referred by Supreme Court (F.C.A. §§ 651[a], 652[a]);


Custody proceedings concerning children born out-of-wedlock (see Matter of Godinez v. Russo, 49 Misc.2d 66, 266 N.Y.S.2d 636 [Fam. Ct. Westchester County 1966]; Cornell v. Hartley, 54 Misc.2d 732, 283 N.Y.S.2d 318 [Fam. Ct. Ulster County 1967]); and


Habeas corpus custody proceedings (F.C.A. § 651).

The Family Court has jurisdiction to direct the commencement of proceedings against persons who are delinquent in their child support or combined child and spousal support obligations in order to suspend: driving privileges; recreational licenses and permits; registration; and/or professional licenses. See F.C.A. §§ 453; 454(2). This jurisdiction also extends to proceedings against persons who have failed, after having received notice, to comply with summonses or subpoenas, or to fulfill other obligations in paternity and child support matters. This jurisdiction extends to all boards, departments, authorities or offices of the State for purposes of implementing a Section of the Act. [Practice Note: Family Court does not have jurisdiction in a post-divorce support modification proceeding where the original divorce decree was issued by the Supreme Court and future jurisdiction was retained solely by the Supreme Court. F.C.A. § 466(b).]




Family Court shares jurisdiction concurrently with other courts in certain matters. These areas are: a.

Family offense proceedings (Supreme Court, Family Court and Criminal


Custody proceedings, including interstate custody matters (Supreme Court


and Family Court); c.

Proceedings to distribute marital property when specifically referred to

Family Court by Supreme Court; d.

Conciliation proceedings (Supreme Court and Family Court);


Proceedings regarding physically handicapped, mentally defective or

mentally disabled children (Supreme Court and Family Court); and f. 5.

Adoptions (Family Court and Surrogates Court).


In any proceeding in which custody of a child is to be determined, the petition must set forth whether the child is a Native American child subject to the Indian Child Welfare Act of 1978. See 25 U.S.C. §§ 1901, et seq. If the child is subject to the Act, the court must proceed further as appropriate in accordance with the Act’s provisions. The Indian Child Welfare Act of 1978 vests exclusive jurisdiction as to any state over any child custody proceeding involving a Native American child who resides or is domiciled within a tribe’s reservation, except as otherwise vested in federal law. See F.C.A. § 115(d).




The Family Court Act is comprised of discrete and separate articles, each of which applies to a specific type of family law proceeding. Accordingly, there is no one specific venue provision in the Act regarding Family Court proceedings. Governing provisions are found in other laws as well, including the Social Services Law and the Surrogate’s Court Procedure Act. a) Juvenile Delinquency: Proceedings must be brought in the county in which the act or acts referred to in the petition allegedly occurred. F.C.A. § 302. b) Support: Proceedings may be brought in the county in which one of the parties resides or is domiciled at the time of the filing of a petition. F.C.A. § 421. [Note: Special rules apply to interstate cases. Interstate cases are governed by the provisions of Domestic Relations Law (D.R.L.) Article 5-B. Also see the additional materials in this course book.] c) Paternity: Proceedings may be brought in the county in which the mother or child resides, or in the county where the putative father resides or is found. F.C.A. § 521. d) Termination of Parental Rights: Proceedings must be originated in the county in which the authorized agent to which guardianship or custody of the child is to be committed or has an office for the regular conduction of business, or in which a child or parent resides at the time the proceeding is brought. SOC. SERVS. LAW § 384b(3)(c). e) Adoption: Proceedings, whether involving private placement adoptions or an authorized adoption agency, must be brought in the county in which the adoptive parents reside. D.R.L. § 113.


f) Guardianship: Proceedings may be brought in the county in which: (1) the infant is domiciled; (2) the infant has sojourned or traveled immediately preceding the application; or (3) the infant, who is a nondomiciliary of New York, has property. S.C.P.A. § 1702. g) Custody: Custody proceedings are normally brought in the county in which a child or children whose custody is in issue reside(s). See Van Loan v. Dillenbeck, 108 A.D.3d 1071, 485 N.Y.S.2d 640 (3d Dep’t 1985). [Note: Interstate custody matters have specific jurisdictional rules that apply. See generally, D.R.L. Article 5-A.] h) Persons in Need of Supervision: Proceedings are brought in the county in which the act or acts referred to in the petition allegedly occurred. F.C.A. § 717. i) Family Offense: Proceedings may be brought in the county in which: (1) the act or acts referred to in the petition allegedly occurred; (2) the family or household resides; or (3) any party resides. F.C.A. § 818. j) Conciliation: There is no statutory provision setting the proper venue for a conciliation proceeding. See F.C.A. § 921. k) Child Protection: Proceedings may be brought in the county in which: (1) the child resides or is domiciled at the time of the filing the petition; or (2) the county in which the person having custody of the child resides or is domiciled. F.C.A. § 1015(a). 7.


The Family Court has both discretionary and mandatory transfer powers and may, for good cause, transfer a proceeding to a Family Court in any other county in which the proceeding might have been originated. F.C.A. § 174. If the proceeding is brought in the proper county for venue purposes, there must be good cause to transfer same to another proper county. In deciding


whether to transfer the proceeding, the Court must look at all of the facts of the case and not just the current residential status of the parties. See N.B. v. T.S., 34 Misc.3d 891, 938 N.Y.S.2d 743 (Fam. Ct. Albany County 2011); see also Jeanne E. M. v. Lindey M. M., 189 Misc.2d 669, 734 N.Y.S.2d 837 (Fam. Ct. Albany County 2001). 8.


It is not common for matrimonial actions to be commenced while one or more Family Court proceedings are still taking place between spouses. In such an event, it may be appropriate to consider consolidating duplicative actions. If there are pending Family Court matters and an action for divorce has been commenced in Supreme Court, you may request that the Supreme Court Justice assume jurisdiction over the Family Court matters and consolidate all matters in Supreme Court. C.P.L.R. 602(b). However, Supreme Court must be the court to consolidate the proceedings and assume jurisdiction of the Family Court proceedings, as the Family Court does not have the authority to transfer proceedings to Supreme Court after a matrimonial action has been commenced. See Roy v. Roy, 109 A.D.2d 150, 491 N.Y.S.2d 202 (3d Dep’t 1985). Once a matrimonial action has been commenced, the Supreme Court may either retain the entire matrimonial action or transfer support, custody, and other matters to the Family Court. Absent such a specific referral, once a matrimonial action has been commenced, the Family Court generally loses its jurisdiction to render support relief unless one of the parties is at risk of becoming a public charge. F.C.A. § 464(b). On the other hand, the commencement of a matrimonial action does not preclude Family Court from entertaining family offense matters or any proceedings concerning abuse or neglect of a child of the parties. In some counties, Integrated Domestic Violence (“IDV”) Courts or


Parts have been established to consolidate and adjudicate matters among families that have one or more related proceedings in one or more courts.



1. FAMILY COURT ACT The Family Court Act incorporates many sections which set forth the specific procedures for each type of proceeding. Essentially, the Family Court Act constitutes both a substantive code and a procedural code. You must consult with the relevant substantive articles (i.e., Article 4, 5, or 6) in order to determine the specific procedure, if any. Nevertheless, the procedural sections of the Family Court Act are far from complete. There are several types of proceedings which are barely covered procedurally, one of which is child custody. Section 165(a) of the Family Court Act states: Where the method of procedure in any proceeding in which the family court has jurisdiction is not prescribed by this act, the procedure shall be in accord with rules adopted by the administrative board of the judicial conference or if none has been adopted, with the provisions of the civil practice act to the extent that they are suitable to the proceedings involved. Upon the effective date of the CPLR, where the method of procedure in any proceeding in which family court has jurisdiction is not prescribed, the provisions of the civil practice law and rules, shall apply to the extent that they are appropriate to the proceedings involved.


[Practice Note: Relative to procedure, first look to the Family Court Act. If the Family Court Act is silent, look to the Civil Practice Law and Rules.] [Practice Note: The Domestic Relations Law contains the bulk of the substantive and procedural requirements for adoptions. See, e.g., D.R.L. §§ 111, 115. 2. CIVIL PRACTICE LAW AND RULES As set forth previously, the Family Court Act indicates that, where the method of procedure in any proceeding in which the Family Court has jurisdiction is not prescribed, the provisions of the Civil Practice Law and Rules shall apply to the extent that they are appropriate to the proceeding involved. F.C.A. § 165(a). Therefore, review must first be made of the particular Article of the Family Court that governs your matter (i.e., Article 4, 5 or 6, etc.) in order to determine the proper procedure. If the procedure is not clear therein or if the Article is silent, then review the Civil Practice Law and Rules to determine whether the procedures set forth therein will be appropriate in your matter. See In re John H., 56 A.D.3d 1024, 868 N.Y.S.2d 790 (3d Dep’t 2008). The most common area where this is an issue is relative to Article 31 of the Civil Practice Law and Rules, specifically relating to financial disclosure. See Matter of Commissioner of Soc. Servs. o/b/o R./S. Children v. Carl S., et al., 170 Misc.2d 126, 647 N.Y.S.2d 361 (Fam. Ct. Kings County 1996). This relates to: the scope of discovery under CPLR § 3101, including demands for names of experts and party statements (CPLR § 3101[e]); protective orders (CPLR § 3103); notices to take depositions (CPLR § 3107); production of documents at the examination before trial (CPLR Rule 3111); discovery and production of documents and things for inspection (CPLR Rule 3120); notices to take physical or mental examinations (CPLR § 3121); notices to admit (CPLR § 3123); compelling disclosure (CPLR Rule 3124); and interrogatories (CPLR §


3130). Some Family Court Judges will require that a motion be made before discovery demands under the CPLR can be served, but most courts allow the litigants to engage in discovery without engaging in motion practice. You should learn what the Judge in your particular case requires regarding discovery demands. If the Judge requires a motion to be made for discovery, you should confer with your adversary to see if you can agree on the scope of discovery so that motion practice can be avoided. In addition thereto, there are areas in which procedural questions concerning evidence will overlap with the Family Court Act and the CPLR. One such example is that of hearsay: Article 10 of the Family Court Act, governing child abuse and neglect proceedings, provides an exception to the hearsay rule relevant to statements made by a child relating to allegations of abuse and neglect. Section 1046 of the Family Court Act permits, in custody proceedings, the admissibility of previous statements made by a child relating to allegations of abuse and neglect. F.C.A. § 1046(a)(vi). In these proceedings, a child’s hearsay statements pertinent to the allegations of abuse and neglect may be admitted into evidence and considered so long as they are corroborated by other evidence. See Bartlett v. Jackson, 47 A.D.3d 1076, 849 N.Y.S.2d 704 (3d Dep’t 2008); see also Rosario W.W. v. Ellen W.W., 309 A.D.2d 984, 765 N.Y.S.2d 710 (3d Dep’t 2003); King v. King, 225 A.D.2d 819, 638 N.Y.S.2d 980 (3d Dep’t 1996). Under the Civil Practice Law and Rules, these statements would most likely be deemed inadmissible hearsay; however, this is trumped by the method of procedure proscribed by Section 1046 of the Family Court Act. Generally speaking, if the matter is an Article 6 visitation or custody proceeding, the statements of the child should be found to be inadmissible hearsay unless some exception to the hearsay rule is applicable. See Jacqueline B. v. Peter K., 8 Misc.3d 807, 796 N.Y.S.2d 518


(Fam. Ct. Kings County 2005). However, a body of case law has developed supporting the notion that, where a custody proceeding under Article 6 effectively becomes a substitute for a child protective proceeding under Article 10, the hearsay exception of Family Court Act Section 1046 may be applied and, thus, the corroborated out-of-court statements of a child in custody proceedings, modification of custody petitions, proceedings to terminate visitation, and applications for supervised visitation may be admitted. See, e.g., Loren B. v. Heather A., et al., 13 A.D.3d 998, 788 N.Y.S.2d 215 (3d Dep’t 2004), leave to appeal denied, 4 N.Y.3d 710, 830 N.E.2d 1145 (2005) (custody case raising allegations of abuse based on child’s statements); Rosario W.W. v. Ellen W.W., 309 A.D.2d 984, 765 N.Y.S.2d 710 (3d Dep’t 2003) (admitting mother’s testimony of statements of children as to conduct by father that would constitute abuse and neglect because it was corroborated by other evidence); Heater v. Heater, 15 A.D.3d 804, 790 N.Y.S.2d 261 (3d Dep’t 2005) (admitting child’s out-of-court statements regarding her father’s having shown her sexually explicit videotape in which he was performing oral sex on the mother as statements were sufficient corroborated); Peter S. v. Cheryl A. S., 190 A.D.2d 1038, 593 N.Y.S.2d 656 (4th Dep’t 1993) (admitting child’s out-of-court statements to mother and social worker that father had sexually abused his young daughter where appellate court found that corroboration requirements of F.C.A. § 1046[a], expressly applicable to Article 10 proceedings, were not applicable to Article 6 proceeding). 3. COURT RULES The Court Rules for the Family Court are codified in the Uniform Rules for the New York State Trial Court, specifically Part 205, Uniform Rules for the Family Court, Sections 22 NYCRR 205.10 through 205.86. These rules are applicable to all proceedings in Family Court. See 22 NYCRR § 205.10. These administrative rules set forth procedures concerning: the terms


and parts of Court (22 NYCRR § 205.2); the assignment of a judge (22 NYCRR § 205.3); access to Family Court proceedings by the public (22 NYCRR § 205.4); privacy of Family Court records (22 NYCRR § 205.5); submission of papers to the judge (22 NYCRR § 205.8); service and filing of motion papers (22 NYCRR § 205.11); submission of orders to the Court for signature (22 NYCRR § 205.14); issues concerning juvenile delinquency (22 NYCRR § 205.26); procedures on hearing examiners (22 NYCRR §§ 205.32–205.37); adoption proceedings involving custody of Native American children (22 NYCRR § 205.51); adoption rules (22 NYCRR §§ 205.52–205.59); proceedings governing persons in need of supervision (“PINS”) (22 NYCRR §§ 205.6–205.66); family offense proceedings (22 NYCRR §§ 205.70–205.74); and child protective proceedings (22 NYCRR §§ 205.80–205.86). 4. LOCAL RULES OF PRACTICE AND/OR CUSTOM Notwithstanding the Family Court Act, Civil Practice Law and Rules and Court Rules, do not overlook the fact that each family court judge and support magistrate may have his or her particular procedures that he or she wishes to follow in a particular case. These varying procedures can extend to the appointment of an attorney for the child (formerly known as a “law guardian”), forensic mental health examination of parties, home visits, procedures during trial, post-trial submissions of memoranda of law and many other matters. An area of local practice that is important to be aware of deals with the adjournment of a matter scheduled for an appearance or hearing. Nowhere is the knowledge of local rules of practice and/or custom more useful than in knowing the proper way to obtain an adjournment of a matter that is scheduled for court. The procedure for obtaining an adjournment is codified in the Rules of the Chief Administrator of the Courts, Part 125 for the engagement of counsel. Initially, Section 125.1 sets the priority relative to matters wherein adjournments are requested. Nevertheless, many judges


and support magistrates have their own particular methods and it is strongly advised that you become familiar with these particular procedures. 5. SUPPORT MAGISTRATES Along with the statutory compliment of judges, the Family Court in each county is staffed with one or more support magistrates (formerly known as “hearing examiners”). Support magistrates are appointed by the chief administrator of the courts for a term of three (3) years, which term can be renewed. One must be admitted to the practice of law in New York State for at least five (5) years and be knowledgeable with respect to Family Court, Federal and State support laws and programs in order to serve in the capacity of Support Magistrate. See 22 NYCRR § 205.32(a). A support magistrate's powers are limited by the Family Court Act. Pursuant to Section 439(a) of the Family Court Act, the Support Magistrate may hear and determine spousal and child support proceedings and, in such proceedings, grant any relief within the powers of the Family Court. Support magistrates cannot: determine issues of contested paternity where equitable estoppel is raised as a defense; determine custody or visitation issues; determine support cases where interference with visitation is raised as a defense; issue orders of protection; grant exclusive possession of a home; or grant relief with respect to issues specified in Section 455 of the Family Court Act which deal with committment. Support magistrates cannot impose punishment for contempt. With regard to such matters, support magistrates are able only to make a determination that a violation of an existing order has occurred, and to then refer the matter to a judge for determination of the appropriate punishment. F.C.A. § 439(a). Support magistrates are, however, able to make recommendations, but such recommendations carry no


force or effect until confirmed by a Family Court Judge. F.C.A. § 1112; see Ceballos v. Castillo, 85 A.D.3d 1161, 926 N.Y.S.2d 142 (2d Dep’t 2011). The Support Magistrate’s power and authority are narrowly construed. Support magistrates may issue temporary support orders, which are enforceable (F.C.A. § 439[a]); order appropriate discovery, financial disclosure and issue subpoenas (F.C.A. § 439[d]); and order DNA, blood grouping, or genetic tests in relation to paternity matters (F.C.A. § 439[b]). Hearings may be conducted before a support magistrate, who must then make explicit findings and fact. F.C.A. § 439(d), (e). The Family Court Act provides that the rules of evidence shall be applicable in support proceedings held before a support magistrate. F.C.A. § 439(d). Furthermore, the Uniform Rules for Trial Courts provide that support magistrates shall conduct a support hearing "in the same manner as a Court trying an issue without a jury in conformance with the procedures as set forth in the CPLR." 22 NYCRR § 202.35; see also Matter of Commissioner of Soc. Servs. o/b/o Albertson v. Albertson, 233 AD.2d 441, 650 N.Y.S.2d 596 (2d Dep’t 1996). Any party may file written objections to a support magistrate's final order or findings within thirty (30) days after entry of the Order. F.C.A. § 439(e). Objections are filed with the Court and then referred to the appropriate judge for determination. F.C.A. § 439(e). While it is obviously advisable that this time requirement be adhered to, the thirty-day requirement has not been strictly enforced by the Third Department. See, e.g., Matter of Latimer v. Cartin, 57 A.D.3d 1264, 870 N.Y.S.2d 554 (3d Dep’t 2008); Rossiter v. Rossiter, 56 A.D.3d 1011, 869 N.Y.S.2d 624 (3d Dep’t 2008). The Family Court will determine the case after the objections are filed and, following entry of a final order, the aggrieved party may appeal to the appropriate Appellate Division. See F.C.A. § 439(e). The failure to file timely objections to a support


magistrate's decision will preclude an appeal to the Appellate Division. See Matter of Rinaldi v. Rinaldi, 239 A.D.2d 506, 657 N.Y.S.2d 443 (2d Dep’t 1997); Matter of Werner v. Werner, 130 A.D.2d 754, 516 N.Y.S.2d 49 (2d Dep’t 1987). 6. FILING/DOCUMENTS/PARTIES/FORMS Proceedings in Family Court are conducted with various differences from civil matters in Supreme Court. First, Family Court matters are commenced by the filing of a Petition. The Petition is signed and contains a verification by the party signing the Petition. It is filed with the Family Court Clerk and assigned a docket number as well as a Family Court filing number. The Family Court filing number is the permanent reference filing number for the parties for their Family Court matters. Unlike most civil matters, there are presently no filing fees associated with filing petitions, nor are there any statutory filing fees or costs associated with obtaining an assigned judge or having the matter be set down for trial. The person filing the Petition is called the “Petitioner” and the person responding to the Petition is called the “Respondent”. The Petition includes the parties’ names and addresses. The Family Court Act does permit a party’s address to be kept confidential from the Respondent under certain circumstances. See F.C.A. § 154-b(2). The Court may do so on its own motion, or upon the motion of any party or the child’s attorney where the Family Court :finds that disclosure of such address . . . would pose an unreasonable risk to the health or safety of a party or the child.” F.C.A. § 154-b(2)(a). In addition, in such an event, the Petitioner must designate an agent or an alternate address for service. See F.C.A. § 154-b(2)(d). If children are involved, their names and dates of birth must be provided. There may be one or more Respondents, particularly in abuse and neglect matters. All necessary parties should be named Respondents. Children are generally not parties to custody or support matters or child protective proceedings. The Family Court will


typically appoint an attorney to represent a child or children involved in custody matters, paternity matters and, at times, support proceedings. The Attorney for the Child is not a party to the proceeding and does not need to be named in the Petition; however she or he is entitled to be present during any proceedings involving her or his clients and to receive copies of any court filings or documents relative to the proceedings. The Petition must also state why the Petitioner is authorized to commence the specific proceeding and the basis for the relief he or she is seeking. For example, to obtain an Order of Protection in Family Court, the Petitioner would have to set forth the nature of the relationship with the Respondent that creates the familial relationship necessary to be considered a “family offense”. After the Petition is filed and processed, the Family Court Clerk will issue a Summons to Appear, which directs all parties to appear before the appropriate support magistrate or judge at a designated location, date and time. This court date is frequently called the “first appearance” or “arraignment”. Even before the first appearance, one of the parties can request emergency or ex parte relief. The Court may issue emergency directives by Order to Show Cause and may issue temporary orders of protection. See F.C.A. §§ 153-b, 153-c. The Order to Show Cause will— and should—contain provisions directing how service upon the Respondent is to be made. Temporary orders of protection must be personally served and, unless the Petitioner represents that she or he will arrange for personal delivery, service is to be effected by use of a police or peace officer. F.C.A. § 153-b(c). At the Respondent’s option, he or she may file a written answer. However, unlike other civil proceedings where a written “answer” is required to avoid a default, the Respondent may elect to verbally indicate his or her “answer” to the Family Court judge when appearing at the


first appearance. Furthermore, for proceedings under Articles 4, 5, 6 and 8 of the Family Court Act, the Respondent may elect to file a cross-petition against the Petitioner, much like a defendant may elect to file a counterclaim in a civil action. See F.C.A. § 154-b(1). However the Respondent’s ability to file a cross-petition is limited to only those proceedings under Articles 4, 5, 6 or 8 of the Family Court Act and, technically, a Cross-Petition must be filed at least five (5) days prior to the first appearance. See F.C.A. § 154-b(1). The Petitioner is not required to file a written reply to the Cross-Petition, and may elect to enter a verbal denial to the same in open court. See F.C.A. § 154-b(1). After the first appearance, local custom and practice will dictate how many, if any, additional court appearances are scheduled before the matter is set down for a hearing or trial. Depending on the exigencies of a matter, the Family Court may also set the matter down for an immediate hearing on temporary custody, temporary orders of protection and/or definitive or dispositive jurisdictional issues that are frequently at issue in interstate cases. Differences also exist among the courts about the formalities required for motions, discovery and pre-trial filings. The Family Court clerk can provide sample or blank forms for most of the proceedings. In addition, many of the forms are available at the following website: However, the practitioner is cautioned to consult with the applicable procedural provisions of the Family Court Act and related statutes to ensure that all relevant warnings and notices are included. SAMPLE FORMS: Appendix A: Sample Custody Petition and Modification Petition Appendix B: Sample Family Offense Petition Appendix C: Sample Petition alleging Violation of Order of Support


Appendix D: Sample request for Address Confidentiality Appendix E: Sample Order to Show Cause


































HOW TO LITIGATE A CHILD SUPPORT PROCEEDING UNDER ARTICLE 4 OF THE FAMILY COURT ACT by John J. Aman, Esq., Support Magistrate, Erie County Family Court, and Samuel J. Sugar, Esq. April, 2014


Preparing the Petition


Original Support Petitions -- No existing order (NOTE: All Petitions discussed are available on the Office of Court Administration web-site at Go to ‘Litigants’ on the right side menu; then ‘Forms and Filing Fees’ on the left hand side; then ‘Family Court’ in the middle; and then ‘Child support’ or ‘Paternity’ on the left side menu ). 1. Must plead the basis for the support obligation. 2. See attached outline: “The Child Support Standards Act at a Glance” as an introduction and starting point to the statute.


Modification Petitions and the law: Judgment or Order dated before October 13, 2010: (Take the same approach you always have!)

1. Upward Modification of Decretal Orders & Judgments: (a) must prove a substantial change of circumstances, or (b) inability to meet the needs of the child with the amount of support being furnished and the resources available to the custodial parent 2. Downward Modification of Decretal Orders and Judgments: (a) must prove a substantial change of circumstances; plead extreme hardship. 3. Upward Modification of Orders and Judgments that are based on Stipulations of Settlement or Opting Out Agreements: (a) must prove an unanticipated or unreasonable change of circumstances, or (b) an inability to meet the needs of the child with the


amount of support being furnished and the resources available to the custodial parent 4. Downward Modification of Orders and Judgments that are based on Stipulations of Settlement or Opting Out Agreements: (a) Must prove an unanticipated or unreasonable change of circumstances; again, plead extreme hardship. C.

Modification Petitions and the law: Judgment or Order dated on or after October 13, 2010. There are now three separate and distinct burdens: 1. There has been a substantial change in circumstance since the prior order was entered. 2. Three years has passed since the prior order was entered, last modified or adjusted. 3. There has been an increase or decrease in either party’s income by 15% since the prior order was entered, last modified or adjusted. 4. NOTE THAT: The act also provides that: “ . . . incarceration shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment.”


Modification miscellaneous 1. Contents of Petition - it’s good practice to attach copies of orders, judgments, stipulations of settlement and opting out agreements that you seek to modify. 2. FCA 451 Affidavit of Change of Circumstances --the Petition should be accompanied by an affidavit or other evidentiary material alleging a change of circumstances sufficient to establish a prima facie case; be expansive in your pleadings. (a) Better to set forth all possible changes of circumstances in your first pleading than to risk dismissal at first appearance or having to explain to your client why pleadings have to be amended (b) Be specific in your allegations -- set forth how much was being spent on the child’s food, clothing, extracurricular, recreational and social activities, hobbies, educational, and medical, dental and optometric expenses when the order was made (especially if the order lacks a cost sharing formula for medical, dental and optometric expenses) AND how much is being spent now. If one of


the grounds is inability to meet the child’s needs, specify exactly what needs are not being fully met and the dollar amount of the shortfall. 3. If seeking a decrease in support due to loss of income, be prepared to show a substantial difference between the amount of support now being paid and the CSSA amount based on prior year’s income. If drop in income due to lay-off or involuntary reduction in hours, be prepared to prove that all other avenues of finding substitute or supplemental employment have been exhausted and that drop in income will be permanent. If drop in income is due to injury or disability submit medical records and proof of workers compensation and disability benefits as well as proof of year to date employment earnings. Explain the extreme hardship that the change is causing. 4. Generally, for all circumstances cited above, see the ‘Modification Charts’ in the materials for quick reference. Also, it is extremely important to check the law and read the cases in your Department to determine specific nuances in application of the burdens. E.

Financial Disclosure 1. Attach to the Petition or produce at the first appearance a fully and carefully completed (preferably typed) financial affidavit. 2. Attach to the Petition or bring to the first appearance complete (all applicable schedules and forms) and legible photocopies of prior year’s federal income tax return; W-2 and 1099 forms; at least 3 recent and consecutive pay stubs; a statement from client’s employer regarding the availability and cost of single and family plan health insurance; documentation regarding specific requests, e.g., child care expenses, and uninsured health-related expenses; and any other financial documents that will assist the court in evaluating your client’s financial condition. 3. If representing the respondent, it is good practice to have at least 3 complete copies of all of the aforementioned financial information available at the first appearance.



Enforcement and Violation Petitions (generally, see attached outline entitled “Violation Proceedings”). 1. Good idea to attach copy of underlying Order or Judgment to Petition. 2. Only those instances of non-compliance that are set forth in the Petition will be considered by the court so be sure to itemize each and every alleged instance of non-compliance. 3. If non-compliance involves non-payment of a health, medical, dental, child care, or education related expense, the Petition should include documentary proof of all such expenses and set forth the date and method of demand for payment prior to the filing of the Petition. Be specific!


Client Expectations 1. Never, never, never promise or guarantee a particular result. 2. Emphasize the child’s needs and best interests and not just the financial well-being of your client. 3. Advise your client of the strengths and weaknesses of the case and discuss possible settlement options prior to court appearance. 4. Know the law and do not give advice to your client unless you are sure you know what you are talking about. 5. If your client is a respondent and your review of the case indicates it is a straightforward Child Support Standards Act guideline case, make sure your client realizes this before you undertake to represent him or her and accept a retainer. 6. Make sure your client understands what will happen in Court, as is more specifically explained below.


Presenting Your Case


Initial Appearance and Pre-Trial Conferences 1. Know your case, i.e., the number of children involved and their ages; special health or educational needs; custodial arrangement; income; content of existing orders or judgments; necessity and cost of child care; cost and availability of health insurance and who is currently covered; composition of client’s household and income of other members; and other pertinent information. Be ready to give this information to the Support Magistrate when asked. 2. Exercise client control -- unsolicited or gratuitous remarks by your client to the court, to the other party or opposing counsel will not help your case. 3. Recommendations of compromise or settlement made by the court should be taken seriously and carefully considered by you and your client.


4. Always talk to opposing counsel before you appear in court. 5. Have your file organized and be able to locate items immediately upon request. 6. Make your point clearly and succinctly and do not interrupt opposing counsel, the other party or the court when they are speaking. 7. Don’t overstate the proof in your case, especially to the court. If you are not able to prove your client’s claims at trial, your credibility will be at issue in future cases. B.

Procedures and Rules Under the Uniform Interstate Family Support Act -See Article 5-B of the Family Court Act in regards to special procedural and evidentiary requirements; e.g., if the opposing party (or your party) resides out of the jurisdiction, the party may be allowed to appear telephonically.


The Conduct of the Hearing and Essential Evidence: A Checklist


Original Petitions and Modification Petitions - Consider presenting the following: 1. Name, date of birth, and residence address of each child. 2. Basis of parent-child relationship (marriage, written acknowledgment of paternity, or order of filiation). 3. Existing orders . 4. Documentary proof of each party’s income. 5. Proof of voluntary and involuntary changes of employment. 6. SCU wage clearances and judicial subpoenas served on past or current employers. 7. In regards to self-employed parties, financial disclosure affidavits that reflect a higher standard of living than the income tax return would justify. 8. Copies of recent loan applications. 9. Consider imputation of income in appropriate cases: (a) voluntary under-employment (b) self-imposed reductions in income (e.g., quitting employment) (c) unexplained ability to maintain lifestyle greater than declared income would permit. 10. Proof of child care expenses. 11. Proof of health insurance expenses. 12. Composition of each party’s household. 13. Income of other members in the household. 14. Rental properties and add-back of depreciation. 15. Proof of medical condition (where applicable). 16. Proof of the existence of one or more of the10 enumerated variance factors set forth in FCA 413(1)(f). 17. Establishing the needs of the child for purposes of making a support award pursuant to FCA 413(1)(k). 18. Must review date of prior order before determining which basis for


modification to use (i.e., before or after October 13, 2010). 19. Proving changes in the child’s needs since the current order was made when seeking an upward modification. 20. Use of financial disclosure affidavits from prior proceedings. 21. Portion of the child’s needs being met by each party in joint custody cases. 22. Portion of each child’s needs being met by each party in split custody cases. 23. Proof of efforts to obtain employment when a party is unemployed or under-employed. 24. Use of income tax returns from 2, 3 and 4 years ago to establish income capability. B.

Enforcement and Violation Petitions - Consider presenting the following: 1. Copy of order to be enforced. 2. Specific proof of non-compliance. 3. Emphasize presumption of sufficient means. 4. Rebut presumption of sufficient means. 5. Review items under section (A) immediately above to determine applicability here. 6. Use of SCU payment records (have them certified pursuant to CPLR 4518-f). 7. Use of client’s records (no matter how informal or rudimentary). 8. Proof that would support willful vs. non-willful violations.

IV. Common Mistakes to Avoid in all Proceedings A.

In the Pleadings: 1. Lack of in personam jurisdiction. 2. Lack of subject matter jurisdiction (e.g., equitable distribution issues, interference of visitation, choice of child care providers). 3. Unverified pleadings. 4. Incomplete financial information. 5. Incorrect Petition for relief desired. 6. Failing to use separate petitions for modification and violation proceedings 7. Overly broad and generalized allegations. 8. Failure to attach or produce supporting documentation. 9. Failure to join a necessary party. 10. Failure to state a prima facie case. 11. Incorrect address for other party.


12. Failure to mention existing orders and to attach or produce complete copies of divorce judgments, separation agreements or stipulations of settlement, and other Family Court orders. 13. Failure to mention prior proceedings and to disclose the outcome of those proceedings. 14. Failure to specifically request all forms of relief sought, e.g., attorney’s fees. 15. Making allegations that lack supporting proof for. 16. Failure to raise affirmative defenses in writing prior to trial. B.

In Court 1. Lack of familiarity with basic elements of the case. 2. Advocating an extreme position. 3. Grandstanding. 4. Failing to heed court’s suggestions regarding possible compromise and settlement. 5. Belittling opposing counsel or the other party. 6. Lack of client control. 7. Lack of knowledge of applicable law. 8. Making arguments or asking for relief contrary to existing law. 9. Belaboring a point that the court has made a ruling on (don’t whine!). 10. Failing to subpoena critical witnesses or documents. 11. Inadequate preparation for trial. 12. Lack of focus in questioning witnesses. 13. Failure to raise relevant points of law. 14. Being overly argumentative on minor issues. 15. Misstating a legal principle. 16. Arriving late. 17. Downplaying the best interests of the child and emphasizing the well being of your client’s wallet. 18. Bringing up real or imagined wrongs that occurred years ago and which have no bearing on the issues at hand. 19. Arguing for a strict application of statutory or case law when fairness and equity suggest a compromise. 20. Failing to advise the court of facts or circumstances that you could reasonably believe would make a difference in the court’s analysis or calculations. 21. Failing to produce documents that you were instructed to produce by the court or that you promised to the court or opposing counsel.


V. A.

Evidence That Should Be Assembled and Introduced On Behalf of Your Client: 1. Financial Affidavit. 2. Complete copy of most recently filed federal income tax return (consider three years worth, maybe more depending on the specific circumstances); W2 and 1099 forms; recent consecutive pay stubs; proof of public assistance, unemployment insurance, social security, workers’ compensation, disability, pension and retirement income; proof of rental or investment income. 3. Proof of investment or employment related expenses. 4.Statement from employer showing health insurance options and cost of each option, particularly the differences in cost for single and family coverage. 5. Proof of employment related child care expenses. 6. Physician’s statement where health is at issue. 7. Copies of health, medical, dental and optometric expenses of the children for which support is requested. 8. Proof of job search if your client is unemployed or underemployed. 9. Copies of all business books and records for prior year and current year if your client is self-employed. 10. Copies of existing Family Court orders, separation agreements, and divorce judgments when relevant. 11. Receipts, credit card statements, and cancelled checks evidencing expenditures on behalf of the subject child. 12. Receipts and cancelled checks evidencing support, medical expense and child care payments made by your client. 13. Statement of medical necessity from child’s orthodontist when contribution for orthodontic expenses is sought. 14. Proof of child’s high school grades; letter of acceptance from college child desires to attend along with a statement from the college settingforth the cost of tuition, room, board, books and fees; and statement of projected financial aid when college contribution is sought.


With Respect to Other Party: 1. Payroll records from other party’s employer if a default order is a possibility or you expect subterfuge or non-production. 2. Copies of recent mortgage and loan applications when the party’s reported income appears insufficient to maintain the standard of living shown on the financial affidavit or observed by your client. 3. Copies of appropriate number of prior years’ income tax returns and/or payroll records from previous employer when case involves issues of self-imposed or unexplained decrease in income. 4. Subpoena a representative from previous employer when loss of employment may have been voluntary or due to misconduct.


5. Copies of deeds, land contracts, and mortgage instruments evidencing ownership of real property not listed on financial affidavit. 6. Savings and checking account statements to show greater cash flow than financial affidavit or income tax return indicate.


VI. Attorney Fee Issues A. Available in original support, modification and enforcement proceedings to the attorney representing “the spouse, former spouse, or person on behalf of the children”. See Family Court Act 438. B. Time to make the request is at the close of your case. C: Must submit an affidavit of services, costs and disbursements and proof of service of affidavit on opposing counsel or party (if pro se). D: Court must conduct a hearing if the other party objects to the amount requested, unless the parties waive the hearing and agree to a determination on submission of papers. E: If done on papers, be timely with your submission; and reasonable with your request. Also, review the law in your Department so that you attach all necessary documents. F: Consider arguing: your client’s inability to pay; the opposing party’s ability to pay; the necessity for your representation; the complexity of the case; your client’s cooperation and opposing party’s intransigence; and the experience and expertise you possess in this area.



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