Family Court Act - Article 1 Overview

APPLICABILITY AND ESTABLISHMENT OF THE FAMILY COURT (FCA 112 - 115)

• FCA 112: Applicability

  • The Family Court Act (FCA) applies statewide across the entirety of New York State.

• FCA 113: Establishment of Court

  • There is a designated family court in each county of New York State.

  • The family court operates as a formal part of the unified court system.

• FCA 114: Exclusive Jurisdiction Defined

  • Verbatim Definition: "EXCLUSIVE JURISDICTION" means that the proceedings over which the family court is given jurisdiction must be originated in the family court.

  • This jurisdiction is subject to the jurisdiction of the Supreme Court as established in the New York State Constitution.

• FCA 115: Jurisdiction of the Family Court

  • Exclusive Jurisdiction: Proceedings assigned to the Family Court (FC) must be originated therein in the manner prescribed by the Act.

  • The Family Court has exclusive jurisdiction over the following:

    1. Abuse and Neglect Proceedings: Governed by FCA Article $10$.

    2. Support Proceedings: Governed by FCA Article $4$.

    3. Paternity/Parentage: Proceedings to determine paternity and support of non-marital children (born out of wedlock) governed by FCA Article $5$.

    4. Termination of Parental Rights: Governed by FCA Article $6$ and Social Services Law (SSL) $\text{Section } 384(b)$.

    5. Persons in Need of Supervision (PINS): Determinations under FCA Article $7$.

    6. Juvenile Delinquency (JD): Proceedings under FCA Article $3$.

OTHER POWERS AND CONCURRENT JURISDICTION

• Other Powers Set Forth in the FCA:

  • Habeas Corpus: Proceedings to produce a child in court.

  • Matrimonial Applications: Applications for child support, maintenance (spousal support), distribution of marital property, and custody within matrimonial and conciliation proceedings.

  • Specialized Proceedings: Actions concerning children who are physically handicapped, mentally defective, or intellectually disabled (formerly referred to as mentally retarded).

• Other Jurisdiction Areas:

  • Adoption and custody (FCA Article $6$, Parts $2$ and $3$).

  • Uniform Interstate Family Support Act (UIFSA) (FCA Article $5\text{B}$).

  • Destitute children (FCA Article $10\text{C}$).

  • Guardianship and standby guardianship of the person (SSL $358a$, $384a$; FCA Articles $10\text{A}$, $10\text{B}$, $10\text{C}$).

  • Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (DRL $5a$).

• Concurrent Jurisdiction:

  • The Family Court shares concurrent jurisdiction with the Criminal Court over family offense proceedings as defined in FCA Article $8$.

  • The Family Court has jurisdiction over proceedings to suspend the licenses of individuals who are delinquent in child support obligations (which can include combined child and spousal support).

RELIGION, COURT PARTS, AND DESIGNATED FELONIES (FCA 116 - 117)

• FCA 116: Religion of Custodial Persons and Agencies

  • The court must consider a child's religion.

  • When practicable, the child should be placed in the custody of a person, persons, or authorized institution of the same religious faith as the child.

• FCA 117: Parts of Court

  • Child Abuse Part: Established in every county of New York State.

  • Designated Felony Part: Established in each of the $5$ New York City (NYC) counties.

• Designated Felonies (Ages $13$-$17$):

  • Murder $1$ & $2$ and Attempted Murder $1$ & $2$.

  • Robbery $1$ & $2$.

  • Kidnapping $1$ & $2$ (involving use or threat of deadly physical force) and Attempted Kidnapping $1$.

  • Arson $1$ & $2$.

  • Assault $1$ & $2$.

  • Rape $1$.

  • Manslaughter $1$.

  • Aggravated Sex Abuse $1$.

  • Criminal Sexual Act $1$.

  • Burglary $1$ & $2$.

  • Possession of Firearm $2$ (when possessed on school grounds).

SEAL, DEFINITIONS, AND COURT EXPENSES (FCA 118 - 120)

• FCA 118: Seal

  • The seal consists of an engraving of the arms of the state of New York.

  • It contains the words "Family Court of the State of New York" followed by the specific county name.

• FCA 119: Definitions

  • Duly Authorized Association, Agency, Society, or Institution: Any institution state-controlled/supported; any social services official; or an entity empowered to care for children that: (i) is incorporated in NYS, (ii) has its place of business/home in NYS, and (iii) is approved, inspected, and supervised by the Department of Family Assistance.

  • Person Legally Responsible for the Child's Care: Includes the child's custodian, guardian, or any person responsible for care at the relevant time.

  • Infant or Minor: A person who has not attained the age of $18$ years.

• FCA 120: Expenses of the Court

  • Personnel Salaries/General Expenses: Within NYC, these are a city charge; outside NYC, these are a county charge.

  • Support Magistrates: Salaries for Support Magistrates appointed under FCA $439$ are a state charge payable by the Office of Court Administration (OCA).

GENERAL POWERS AND SERVICE OF PROCESS (FCA 151 - 154-A)

• FCA 151: Judges as Magistrates

  • Family court judges serve as magistrates.

• FCA 152: Power to Administer Oaths

  • Judges can administer oaths, take acknowledgments, or designate an official to do so.

  • Judges may dispense with the formality of placing a minor under oath.

• FCA 153: Compelling Attendance

  • The court may issue subpoenas (including subpoena duces tecum), warrants, or other process.

  • The court may admit, fix, or accept bail and hear motions regarding child support subpoenas under SSL $111\text{-p}$.

• FCA 153-A: Warrant of Arrest

  • May be executed $24/7$ (including Sundays).

  • Police may use lawful physical force per PL $35.30$.

  • Police may use force to enter premises after giving lawful notice.

• FCA 153-B: Service of Orders of Protection (OP)

  • Summons and petitions for OP/Temporary Order of Protection (TOP) can be served $7$ days a week, $24$ hours a day.

  • Service is performed by a peace or police officer unless the petitioner states on the record they will arrange service.

  • Proof of service (affirmation, certificate, or affidavit) must be provided to the court.

• FCA 153-C & 154: State-wide Process

  • Petitioner for TOP is entitled to file a petition on the same day; hearing occurs same day or next court session.

  • Process (like a summons) can be sent to any county in NYS.

  • Process for paternity/support can be sent outside NYS to exercise personal jurisdiction under CPLR $301$ or $302$ or FCA Article $5\text{-B}$.

  • Process for OP violations/requests under FCA Articles $4, 5, 6, 8, \text{ and } 10$ can be sent outside NYS.

• FCA 154-A: Service of Petition

  • A copy of the petition must be served on the respondent at the time of service of process, or if impracticable, at the first court appearance.

CONFIDENTIALITY, EMERGENCY POWERS, AND BAIL (FCA 154-B - 155-A)

• FCA 154-B: Answer, Counterclaims, and Confidentiality

  • Respondents can file answers and counterclaims.

  • Counterclaims served at least $5$ days before a hearing can be heard on the return date.

  • Address Confidentiality: If disclosure poses an "unreasonable risk" to health/safety, the court can authorize a party or child to keep their address confidential.

  • If a party resides in a residential program for victims of domestic violence (SSL $459\text{-a}$), those addresses must not be revealed.

  • The Clerk of the Court or a disinterested person is designated as agent for service for the confidential party.

• FCA 154-D: Emergency Powers (Local Criminal Courts)

  • If FC is not in session, a Local Criminal Court (LCC) can issue an ex parte TOP based on a sworn affidavit.

  • LCC must transfer the matter and make it returnable in Family Court on the next session day (no more than $4$ calendar days after issuance).

  • A TOP issued by LCC transfer generally expires $4$ calendar days after issuance.

• FCA 155 & 155-A: Arrested Adults and Bail

  • Adults arrested when FC is closed are taken to a magistrate for arraignment.

  • The protected party in an OP cannot be held to violate that order or be arrested for doing so.

  • Cash Bail Acceptance Times:

    • Inside NYC: Between $2\text{ PM}$ and $8\text{ AM}$.

    • Outside NYC: Between $11\text{ AM}$ and $8\text{ AM}$.

WITNESSES, RESTRAINTS, AND RECORDS (FCA 158 - 169)

• FCA 158: Material Witness Protective Custody

  • Applies to persons under $16$ years old.

  • Initial duration: Max $14$ days.

  • Renewals: $2$ additional periods of $14$ days for good cause.

  • Maximum Total Period: $14 + 14 + 14 = 42$ days.

• FCA 162 & 162-A: Waiting Rooms and Restraints

  • Courts should provide waiting rooms with competent persons for children.

  • Restraints (handcuffs, chains, etc.) are prohibited for children under $21$ in the courtroom unless it is the least restrictive alternative to prevent: (i) physical injury, (ii) physically disruptive behavior with recent history of risk, or (iii) flight/absconding.

• FCA 166-169: Records and Protections

  • Records are not open to indiscriminate public inspection; privacy is protected.

  • FCA 167: Appearance in court creates a presumption that a summons was served.

  • FCA 168: The clerk issues copies of OPs to all affected parties. OPs are filed with the sheriff/police in the petitioner's county/city.

  • FCA 169: The OCA must ensure OPs issued under Articles $3, 4, 5, 6, 7, 8, \text{ and } 10$ are translated in writing for parties where an interpreter is appointed.

SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) ADDENDUM

• SIJS provides a pathway to legal permanent residence ("green card").

• Federal law (8 U.S.C. $\text{Section } 1107(a)(27)(j)$) requires findings by a state juvenile court (like NYS Family Court).

• Crucial Distinction: The Family Court does not grant the status; it only makes the findings used in the application to U.S. Citizenship and Immigration Services (USCIS).

• Requirements for Findings:

  1. Juvenile is under $21$ and unmarried.

  2. Juvenile is dependent on the court or placed in custody of an individual/entity/agency.

  3. Reunification with one or both parents is impossible due to abuse, neglect, abandonment, or similar.

  4. Returning to the country of origin is not in the juvenile's best interests.

QUESTIONS & DISCUSSION

• Q: In which counties is a child abuse part established?

• A: In every county of New York State.

• Q: Does the Family Court have exclusive original jurisdiction over family offenses?

• A: False; it has concurrent jurisdiction with the criminal court.

• Q: Where are Designated Felony parts established?

• A: In the $5$ New York City counties.

• Q: Can a "duly authorized agency" be a foreign corporation with an NYS business office?

• A: False; it must be incorporated under the laws of New York State.

• Q: What is the maximum duration for protective custody of a material witness?

• A: Initial $14$ days, maximum $42$ days with renewals.

• Q: When can a family court arrest warrant be executed?

• A: $24/7$, including Sundays and any hour of the day or night.