Family Court Act Article 2: Attorneys for Children and Counsel for Indigent Adults Study Notes

ADMINISTRATION OF THE FAMILY COURT (FCA PART 1)

• FCA 212: Rules of Court

  • An administrative board is responsible for preparing the rules of the court as authorized and required by the Family Court Act (FCA).

  • When practicable, these rules must apply statewide to ensure uniformity.

• FCA 213: Reports and Statistics

  • The court is required to compile and report statistics to the administrative board, the legislature, and the governor.

  • Data points include:

    • The number of children removed from their homes.

    • The number of placements made.

    • The number of children detained and/or released.

• FCA 214: Prescription of Forms and Electronic Filing

  • Current Status: The Chief Administrator is responsible for prescribing forms and procedures for electronic filing in the Family Court.

  • Uniformity: Forms must be uniform statewide, subject to specific exceptions.

  • Regulatory Power: This section outlines the power and procedure for promulgating these forms for various petitions.

  • Upcoming Change: Beginning on $09/01/2027$, the responsibility for prescribing forms will switch from the Chief Administrator to the State Administrator.

• FCA 216-a through 216-c: Clerk of Court and Petition Procedures

  • Clerk Requirement (FCA 216-a): Every county must have a clerk of court.

  • Distribution of Forms (FCA 216-b): The clerk of court must provide petition forms to any person who requests them without using discretion to refuse.

  • Preparation of Petitions (FCA 216-c):

    • If a person is not represented by counsel, the clerk or court employee must assist in preparing the petition.

    • The petition must contain all allegations made by the person, even if the person appears intoxicated.

    • Questions regarding jurisdiction or other legal issues are not to be decided by the clerk; they must be referred to the court for determination.

    • Exclusion: This section regarding clerk-assisted preparation does not apply to Juvenile Delinquency proceedings.

• FCA 217: Filing and Service of Orders

  • Form and Signature: Orders must be in writing and signed or initialed by the judge who issued the order.

  • Filing Location: The original order must be filed with the clerk of the Family Court in the county where the order was made.

  • Timeline for Filing:

    • The court must file or direct the filing of an order within $20$ days of the court's decision.

    • If the court directs an order to be "settled on notice," the $20$-day period begins on the date the order is settled.

SUPPORT BUREAU AND COOPERATION DUTIES (FCA PART 2)

• FCA 221: Support Collection Unit (SCU)

  • This section establishes the SCU, which is authorized to collect, enforce, and seek modifications of support orders.

• FCA 228: Cooperation by Fiduciary Institutions

  • Banks and other fiduciary institutions are authorized and required to provide full information to the court regarding any funds deposited by a petitioner or respondent.

  • This applies specifically to proceedings under Articles $4$ or $5$ of the FCA.

• FCA 229: Cooperation by Employers

  • Employers are authorized and required to report full information regarding the earnings of a petitioner or respondent when requested by the court.

  • This applies to proceedings under Articles $4$ or $5$.

ATTORNEYS FOR CHILDREN (FCA PART 4)

• FCA 241: Right to Representation

  • Minors in Family Court should be represented by counsel of their own choosing or by an Attorney for Children (AFC).

• FCA 242: Definition of Attorney for Children

  • An AFC is an attorney admitted to practice in the State of New York and designated to represent minors pursuant to FCA 249 (e.g., Legal Aid attorneys or "$18\text{-b}$ attorneys").

• FCA 243 & 244: Contracting and Terms

  • The Office of Court Administration (OCA) may contract with the Legal Aid Society or other qualified attorneys (via the Appellate Division) to provide AFC services.

  • Termination: OCA can terminate an AFC agreement by giving $60$ days' notice to the provider.

  • Duration: The maximum term of designation is $1$ year, though successive designations (renewals) are permitted.

• FCA 249: Mandatory Appointment of Attorneys for Children

  • The court must appoint an attorney for a minor if independent legal representation is unavailable in proceedings under:

    • FCA Article $3$ (Juvenile Delinquency).

    • FCA Article $7$ (PINS).

    • FCA Article $10$ (Child Protective).

    • FCA Article $10\text{-A}$ (Permanency Hearings).

    • FCA Article $10\text{-B}$ (Former Foster Care Youth).

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

    • Where a minor is sought to be placed in protective custody (FCA 158).

    • Where revocation of adoption consent is opposed (Domestic Relations Law $115\text{-b}$).

    • Proceedings under Social Services Law $358\text{-a}$, $383\text{-c}$, $384$, or $384\text{-b}$.

  • Continuity of Counsel: To the extent practicable and appropriate, the court should appoint the same attorney who has previously represented the child.

AUXILIARY SERVICES (FCA PART 5)

• FCA 251: Medical and Psychiatric Examinations

  • Once a petition is filed and jurisdiction is established, the court may order medical, psychiatric, or psychological exams for any person under its jurisdiction.

  • Remand/Appearance Locations:

    • NYC Department of Health (within NYC).

    • A county hospital (outside NYC).

    • A state-maintained hospital.

    • A qualified private institution approved by the local social services department.

• Specifics for Psychiatric Exams (Outside NYC):

  • The court may direct the director of a mental hygiene institution to conduct the exam.

  • Directors may be heard by the court before the direction and can designate staff or a state psychiatrist to perform the duty.

• Examination Protocols:

  • Status: Generally conducted as an outpatient service.

  • Inpatient Exceptions: Requires court necessity, a post-fact-finding detention under Articles $3$ or $7$, or consent from the adult or respondent's attorney.

  • Duration: Remands for examination generally cannot exceed $30$ days but may be terminated early for good cause.

  • Treatment: The director may administer necessary medical or therapeutic treatment during the exam period.

• FCA 252 & 252-a: Probation Service

  • Establishment: Each county Family Court must maintain a probation service.

  • Volunteers: Volunteer probation officers are allowed if they meet the qualifications of paid officers, but they cannot serve as chief probation officers or be paid from public funds.

  • Religious Matching: If enough officers are available, a child should be assigned an officer of the same religious faith.

  • Investigation Fees (FCA 252-a):

    • Counties/NYC may charge a fee for investigations conducted under FCA 653.

    • Range: Any amount between $50$ and $500$.

    • Basis: Set by the court based on the party's ability to pay and the inequities of the case.

    • Allocation: Fees are paid to the local probation department and do not affect state aid calculations.

• FCA 254 & 254-a: Representation by Public Attorneys

  • The court may request Corporation Counsel (NYC) or the County Attorney to present/support a petition.

  • Abuse Cases: Corporation Counsel (NYC) or the District Attorney (outside NYC) must be a party to the proceeding.

  • Designated Felony Acts (FCA 254-a):

    • The DA and Corporation Counsel (or County Attorney) can agree to have the DA present cases involving designated felony acts.

    • If a respondent has multiple joinable offenses (per CPL $200.20$), the DA presents all petitions, even those not involving designated felonies.

    • This agreement requires approval by the NYC Mayor or the County Executive/Board of Supervisors.

• FCA 255: Cooperation with Other Agencies

  • The court can order state, county, municipal, and school district officers to provide assistance.

  • School Districts: Orders are limited to evaluating/recommending special services for handicapped children (per Education Law) and cannot mandate specific programs.

COUNSEL FOR INDIGENT ADULTS (FCA PART 6)

• FCA 262: Statutory Right to Counsel

  • At the first appearance, the judge must advise the person of:

    1. The right to an attorney of their own choosing.

    2. The right to an adjournment to confer with an attorney.

    3. The right to court-assigned counsel if financially unable to afford one.

• Parties Entitled to Assigned Counsel:

  • Respondents: Proceedings under FCA Article $10$, $10\text{-A}$, Article $8$ (Family Offense), Article $6$ (Permanent Neglect/Termination of Parental Rights), and Article $5$ (Paternity).

  • Petitioners: Proceedings under FCA Article $10$ Part $8$ and Article $8$.

  • Parents/Custodians:

    • In Article $10$ and $10\text{-A}$ proceedings.

    • In SSL $358\text{-a}$, $384$, and $384\text{-b}$ proceedings.

    • Any parent seeking or contesting custody where substantial infringement of rights is involved.

    • Parents opposing an adoption.

  • Contempt: Any person facing contempt of court or willful violation of a court order (except summary contempt under Judiciary Law 755).

  • Interested Adults (FCA 1092/10-C): Where a destitute child resided with or was removed from the care of said adult.

• Judicial Discretion for Other Cases:

  • A judge may assign counsel in any other proceeding if they determine such assignment is mandated by the New York State Constitution or the United States Constitution.

QUESTIONS AND DISCUSSION

• Question: Does the clerk of the Family Court have discretion in giving out petition forms?

  • Response: No. According to FCA 216-b, the clerk shall give petition forms to any person requesting them.

• Question: What must a clerk or probation officer do if there is a jurisdictional question when a person is filing a petition?

  • Response: Per FCA 216-c, they must prepare and file the petition and then refer the jurisdictional issue to the court for determination.

• Question: In which proceedings must the Family Court appoint an attorney for a minor if independent representation is unavailable?

  • Response: This is mandatory for Articles $3$, $7$, $10$, $10\text{-A}$, and $10\text{-C}$, as well as proceedings regarding revocation of adoption consent, specific Social Services Law proceedings ($358\text{-a}$, $383\text{-c}$, $384$, $384\text{-b}$), and protective custody cases (FCA 158).

• Question: Is an indigent petitioner in a Paternity proceeding (Article 5) entitled to free counsel?

  • Response: No. Under FCA 262, only the respondent in an Article $5$ proceeding is entitled to assigned counsel.