PRACTICE GUIDE TO

NEW YORK CITY FAMILY COURTS

FALL 2016

100 Broadway, 10th Floor New York, New York 10005 Tel. 212-695-3800 Fax 212-695-9519 1 www.herjustice.org

TABLE OF CONTENTS

WHAT IS FAMILY COURT? ...... 3

NYC FAMILY COURT LOCATIONS ...... 4

INTEGRATED DOMESTIC VIOLENCE PARTS ...... 6

FAMILY COURT HOUSE DIRECTORY ...... 7

PLAYERS IN THE COURT ...... 16

“HOW TO” GUIDE ON FILING FOR CHILD CUSTODY/VISITATION ...... 26

“HOW TO” GUIDE ON FILING FOR CHILD SUPPORT ...... 30

ADJOURNMENTS ...... 38

DISCOVERY ...... 40

“HOW TO” GUIDE ON MOTION PRACTICE ...... 43

COURT APPEARANCES...... 46

AFTER THE HEARING ...... 50

HOW TO OBTAIN COPIES OF COURT FILES ...... 54

HOW TO OBTAIN MINUTES ...... 55

COURT ETIQUETTE ...... 57

FREQUENTLY SUBPOENAED ENTITIES ...... 59

USEFUL WEBSITES ...... 65

GLOSSARY OF FAMILY COURT TERMS ...... 67

2 WHAT IS FAMILY COURT?

The Family Court is part of New York State’s unified court system. The Family Court is not a court of general jurisdiction, but rather has jurisdiction over only specific types of cases, as detailed in Family Court Act § 115, and within the parameters described throughout the Family Court Act.

The Family Court has jurisdiction over cases involving family offenses (domestic violence), custody, visitation, paternity, spousal support, child support, abuse and neglect of children, and juvenile delinquency.

The Family Court does not have jurisdiction over divorces, which must be heard in Supreme Court. The Family Court also does not have the jurisdiction to divide and distribute property, unless the Supreme Court issues a specific order referring that issue to the Family Court.

In Family Court, cases may be heard either by (1) a judge; (2) a support magistrate; or (3) a court attorney/referee. A support magistrate hears cases involving support and paternity, within certain parameters as defined by Family Court Act § 439. A court attorney/referee generally hears cases involving custody and visitation. Family offense proceedings should be heard by a judge.

Please note the information for the telephone numbers noted below is subject to change, for up to date information, visit the NYS Unified Court website at http://www.courts.state.ny.us.

3 NYC FAMILY COURT LOCATIONS

Each of the five counties in New York City has a Family Court:

 BRONX Family Court, Bronx County 900 Sheridan Avenue (on the corner of 161st Street) Bronx, NY 10451 718-618-2098 It is accessible from the 4 (not the 5), B, or D train to the Yankee Stadium/161st Street stop. (On the D train, some of the subway signs say River Avenue.) If you are coming from the 2 train (not the 3!) you can transfer to the 4 train at the 149th Street stop.

Note, the Bronx Hall of Justice located at 265 East 161st Street currently houses the IDV court. Other Family Court parts may be transferred to that location in the future. To find out if your case has been transferred to the new courthouse, contact (718) 618-3000 or visit http://iapps.courts.state.ny.us/fcasfamily/main to find out the part in which your case will be heard. Use file number to locate cases related to your client.

 BROOKLYN Family Court, Kings County 330 Jay Street Brooklyn, NY 11201 347-401-9610 It is accessible from the 4, 5 and the 2, 3 Borough Hall stops, the R Court Street stop, and the A, C, F and R Jay Street - MetroTech Stops.

 MANHATTAN Family Court, New York County 60 Lafayette Street (corner of Lafayette and Leonard) New York, NY 10013 646-386-5200/5206 It is accessible from the 4, 5, 6 Brooklyn Bridge/City Hall stop, the 1-2-3 Chambers Street stop or the 1 Franklin Street stop (closer than Chambers, but 1 only), and the R City Hall stop.

 QUEENS Family Court, Queens County 151-20 Jamaica Avenue (b/w Archer and 151st Street) Jamaica, NY 11432 718-298-0197 It is accessible from the E, J, Z or F train (from the 51st street and Lexington Avenue stop on the 6 and E, it takes approximately 45 minutes to get to the court house). The Courthouse is across the street from the “Jamaica Center” stop, last stop on the E, J or Z train On the F train it is the “Parsons Boulevard” stop. The Court House is two blocks from this stop. It is also accessible by Long Island Railroad’s Jamaica Center stop.

 STATEN ISLAND Family Court, Richmond County 100 Richmond Terrace Staten Island, NY 10301 4 718-675-8800/5461 First, you will need to take the subway to the South Ferry Terminal, which is just off Battery Park in lower Manhattan. The subways that go there are the 4 and 5 lines (Bowling Green stop), the R line (Whitehall stop), and the 1 line (South Ferry stop). Then you will follow signs to the Staten Island Ferry. The ferry ride is free, and takes 25 minutes. You are advised to take the ferry that leaves Manhattan at 8:30AM. You will arrive on Staten Island by 8:55AM and have more than enough time to reach the courthouse by 9:15AM. If you miss the 8:30 ferry, the next ferry departs at 8:45AM. Ferries depart from South Ferry every 15 minutes during rush hour, which is from 7:30AM to 9:30AM.

When you get off the ferry in Staten Island, just follow the mass of people heading to the street exits. The exits are indicated with signs marking letters of the alphabet (A through E). It is most direct to head all the way to the right and exit at the letter E. Once you are outside, you will be on a bus ramp. Just walk straight up the ramp to the road, which is Richmond Terrace. You will see Borough Hall, an attractive, older looking stone -faced municipal building, directly across the street. Cross the street and turn right. Continue straight on Richmond Terrace for two blocks. You will pass the Supreme Court, then the 120th precinct, which is covered with blue scaffolding, and the Family Court will be the next building on your left. The minor league Yankees’ stadium can be found directly across the street to your right. Head up the stairs to the entrance of the courthouse. There is only one door by which to enter.

The courthouse can also be reached by driving over the Verrazzano Bridge. Take I-278 West across the bridge. Take the exit toward BAY ST Stay straight to go onto SCHOOL RD. Turn LEFT onto BAY ST. BAY ST becomes RICHMOND TERRACE.

5 INTEGRATED DOMESTIC VIOLENCE PARTS Based on the one family - one judge concept, the State's Integrated Domestic Violence Courts exist to handle all related cases pertaining to a single family where the underlying issue is domestic violence. The Court seeks to promote justice and protect the rights of all litigants while providing a comprehensive approach to case resolution, increasing offender accountability, ensuring victim safety, integrating the delivery of social services, and eliminating inconsistent and conflicting judicial orders. Each IDV Court empowers a single judge with the authority to handle family, criminal and matrimonial matters. Criminal allegations of domestic violence should form the threshold requirement for entry into the IDV Court, with related cases in at least two of the three areas of the law. BRONX INTEGRATED DOMESTIC VIOLENCE COURT, BRONX COUNTY Bronx County Hall of Justice 265 East 161st Street Bronx, NY 10451 (718) 618-1067 Judge Assigned to IDV: Diane Kiesel BROOKLYN INTEGRATED DOMESTIC VIOLENCE COURT, KINGS COUNTY Kings County Supreme Court, Criminal Term 320 Jay Street Brooklyn, NY 11201 (347) 296-1279 Judge Assigned to IDV: Patricia E. Henry Judge Assigned to IDV2: Esther M. Morgenstern MANHATTAN INTEGRATED DOMESTIC VIOLENCE COURT, NEW YORK COUNTY 100 Centre Street New York, NY 10013 (646) 386-3579 Judge Assigned to IDV: Tandra L. Dawson QUEENS INTEGRATED DOMESTIC VIOLENCE COURT, QUEENS COUNTY Queens County Supreme Court, Criminal Term 125-01 Queens Blvd. Kew Gardens, NY 11415 (718) 298-1404 Judge Assigned to IDV: Lenora Gerald STATEN ISLAND INTEGRATED DOMESTIC VIOLENCE COURT, RICHMOND COUNTY Richmond County Supreme Court 18 Richmond Terrace Staten Island, NY 10304 (718) 675-8666 Judge Assigned to IDV: Catherine M. DiDomenico

6 FAMILY COURT HOUSE DIRECTORY

There are several important offices in each of the Family Courts that attorneys and their clients should be aware of. These offices offer support and administrative assistance throughout the filing processes. The locations of offices and procedures are subject to change—please contact the court to verify all information.

1) The Safe Horizon Reception Center is a safe place where victims of domestic violence may stay while waiting to go to court. The Reception Center is a good place to meet with petitioners, especially if the batterer is waiting outside the court part for the case to be called.

Safe Horizon Counselors assist victims who come to Family Court to obtain Orders of Protection. They provide petitioners with information necessary to navigate the court system. They inform petitioners that they can file for an Order of Protection in both the Family Court and Criminal Court. They assist petitioners with their petitions, provide instruction about the Affidavit of Service, and explain how to file for a Violation of an Order of Protection. At their discretion, counselors provide in-court advocacy. For general information they can be reached at 800-621-HOPE (4673).

2) The Petition Room is where people go to file their petitions. Petitioners form a line at a service window and tell the clerks what they are filing for (Orders of Protection, Custody, Paternity, Child Support, etc.). The Petitioners then wait to be called in and interviewed by either a petition clerk or student advocate who will prepare their petitions.

Attorneys who draft their own petitions prior to coming to court can bring their petitions to the petition room and the petitions will be assigned docket numbers and then sent to the intake parts (see Intake Parts Section below).

3) The CAP Unit (Court Action Process Unit) also known in some boroughs as CAPU, is where the petitioner goes to pick up a Judge’s orders, including Orders of Protection, Temporary Orders of Protection, child custody orders, etc. The clerks there will also probably tell the petitioner that the court can arrange for the police to serve the respondent with the summons and the order. (Note: Police are only mandated to serve orders of protection. If she is petitioning for some other relief she will have to arrange for service in some other way. However, you should inform an order of protection petitioner that going to the precinct on her own and asking the police officers there to effect service is recommended. If the petitioner chooses this method, she should make sure that the police officers fill out the affidavit of service form when they serve the respondent.

The CAP unit should provide the Petitioner with 2 copies each of the Petition and the temporary orders (if one is issued by the court). One copy is for the Petitioner and the other copy is to be served on the Respondent. The Petitioner will also be given an Affidavit of Service form and an envelope with the court’s address on the front. Once the Respondent has been properly served, the Affidavit of Service should be completed, and the Petitioner should make a copy of the completed affidavit of service, then mail the copy back to the court in the self-addressed envelope. The Petitioner should keep the original Affidavit of Service and bring it to court on the adjourn date. Without the Affidavit of Service there is no proof that any temporary orders ever went into effect or that the Respondent had notice of the hearing.

7 Note: After each court appearance, it is important for attorneys to go to CAP Unit/CAPU themselves to get copies of any orders. Often, there are mistakes in the orders, which can be corrected immediately by going directly to the judge’s clerk after picking up the papers. Otherwise, you might be forced to make a motion to correct the order if you did not pick up the order immediately after the court appearance.

4) The Record Room – The Record Room is where you can review and make copies of documents in the client’s files. In order to obtain access to the file an attorney must make a Notice of Appearance stating that s/he is the attorney on the case or obtain a release & authorization from the client authorizing the attorney to look at and copy the file. It is very important to bring identification and change for the photocopy machines.

If you wish to have someone from your managing clerk’s office make copies of the court file you must: 1) make sure a Notice of Appearance is on file or give the Notice of Appearance to the clerk to file and 2) write a letter specifically authorizing the managing clerk by name to look at and copy the file.

5) Medical Records Room a.k.a. “Parts Division” – where all subpoenaed records (such as hospital and police records) are sent and kept. In some of the Family Courts these records are kept in the Record Room of the Court or the Clerk’s Office and not a designated medical record room or Parts Division.

When subpoenaing a document, you should check the Medical Record Room/Parts Division/Record Room/ or Clerk’s Office to see if your records have arrived. The attorney who subpoenaed the records should be allowed to sign out and take the records with them. If no one has come to claim the records prior to the court date, the records get sent to the proper judge’s part on the adjourn date. You can see the clerk of the part to retrieve the records on the court date.

When subpoenaing records, it is important to include the Docket Number, the Judge, the adjourn date and instructions on how to return the subpoenaed documents to the appropriate records room. Also include a certification and delegation of authority forms.

6) Parts – These are the courtrooms where the judges are located.

7) Intake Parts – These are the courtrooms where the judge will see the Petitioner after they have filed their petition. In the intake part, the judge will review their petitions, orders a return date, issues a summons or warrant for the other side to appear, and will issue any temporary orders. The intake judge then adjourns the case for another court date and may assign the case to a different judge.

8) Specialized intake – Specialized intake exists in the Bronx, Kings and Queens County moving toward One Family/One Judge approach. There are no special courtrooms for specialized intake. The Court seeks to promote justice and protect the rights of all litigants while providing a comprehensive approach to case resolution, increasing offender accountability, ensuring victim safety, integrating the delivery of social services, and eliminating inconsistent and conflicting judicial orders. In family court, all Judges are “specialized,” meaning they only hear certain types of cases. The CVO (custody, visitation and order of protection) judges only hear custody, visitation and order of protection cases. There are also child protective judges and juvenile delinquency judges. 8

Specialized intake is where after a petitioner files a petition, she goes in front of a judge who is specialized in the type of case she has filed for intake. This judge will then issue service, temporary orders (see intake section) and will keep the case on their docket rather than referring it out to a different judge. This way, the petitioner stays with the same judge throughout the course of the litigation.

Each IDV Court empowers a single judge with the authority to handle family, criminal and matrimonial matters. Criminal allegations of domestic violence should form the threshold requirement for entry into the IDV Court, with related cases in at least two of the three areas of the law.

9) Clerk’s Office – The Clerk’s office is a general “go to” place to ask questions, find locations and find out the procedure of the Family Court. It is also the office where you “stamp” court filings and find a notary, if available. In some boroughs, subpoenaed records are kept here.

10) Motion Clerk Office – This is the office where you file any motions pertaining to your Family Court matter.

11) Support Collection Unit (SCU) – This is a government agency that assists individuals with child support issues including filing the support case and collecting payments.

12) Office of Child Support Enforcement (OCSE) – OSCE provides child support services to all parents throughout the 5 boroughs regardless of income. Parents who are receiving public assistance will be referred to support services automatically, all others must apply in Family Court. Some of the support services offered by OCSE include location investigation, paternity establishment, financial investigation, support establishment, support collection, support enforcement, modification of child support orders, cost of living adjustment, and medical support establishment and enforcement.

****For all specific court information, including contact numbers and locations, please visit: http://iapps.courts.state.ny.us/webcivil/ecourtsMain.

9 FAMILY JUSTICE CENTERS

The New York City Family Justice Center under the auspices of the Justice Department and the City of New York’s Mayor’s Office to Combat Domestic Violence offers centralized, comprehensive, and compassionate services to domestic violence victims. The Family Justice Center is designed to serve people who live in or have suffered domestic violence in the particular borough where the center is located. No appointment necessary.

Brooklyn

The Brooklyn Family Justice Center is located at 350 Jay Street and is open weekdays 9AM-5PM.

Subway: Take the A, C, F or R train to Jay Street-MetroTech; the 2, 3, 4, or 5 train to Borough Hall.

By Bus: The B25, B26, B38, B51, B54, B57, B61, B65, B67, and B75 busses all stop near the Center.

There is paid parking available at the following location:

Marriott Parking Garage – 333 Adams Street, 718-246-7000

(Between Johnson and Willoughby Streets)

Queens

The Queens Family Justice Center is located at 126-02 82nd Avenue and is open weekdays 9AM-5PM.

Take the E or F train to Kew Gardens/Union Turnpike. Use the “Court Subway: House/North Side” exist and walk east on Queens Boulevard Past Queens

Borough Hall. Turn left onto 82nd Avenue – the Center is on the east side of the Street.

By Bus: The Q10, Q37, Q46, Q60 and Q74 buses all stop near the Center.

Bronx The Bronx Family Justice Center is located at 198 East 161st Street, 2nd Floor and is open weekdays 9AM-5PM.

Take the No. 2 or 4 train to Yankee Stadium/161st Street or take the B or D train Subway: to Yankee Stadium/161st Street/River Avenue. 10

The BX 6, BX 13 and BX 55 buses stop at 161st St./Grand Concourse near the By Bus: Center.

Manhattan The Manhattan Family Justice Center is located at 80 Centre Street, 5th Floor and is open weekdays 9AM-5PM.

Subway: Take the 4, 5, 6 or J, Z train to Chambers St./Brooklyn Bridge or take the A,C train to Chambers St., or take the R, N, Q to Canal.

By Bus: The M-1, M-6, M-9, M-15, M-22, and M-101 buses stop near the Center.

11 JUDGES DIRECTORY BY COUNTY

BRONX COUNTY FAMILY COURT floor Court Location Judge Part -- Honorable Diane Kiesel IDV-F Lower main Shira Atzmon, FCSM 20 & 23 & 23-U Lower main Harold E. Bahr III, FCSM 22 & 22-U 7th Floor Honorable Tracey A. Bing 17 & 17-Conf. A th th 6 and 7 floor Jennifer S. Burtt Esq., Court Attorney Referee 40 & 46 7th and 6th floor Bonnie Cohen-Gallet Esq., Court 40 & 43 Attorney Referee 7th Floor Honorable Sarah P. Cooper 9 & 9-Conf. A 7th Floor Karen M. C. Cortes, Court Attorney Referee 40 & 42 3rd Floor Susan S. Danoff, JHO 50 3rd Floor David Gilman, JHO 40 & 51 2 & 2-Conf. A th Honorable Alma M. Gomez 6 Floor

7th Floor Honorable Sidney Gribetz 6 & 6-Conf. A 7th Floor & 6th Floor Annette Louise Guarino, Court Attorney Referee 40 & 47 3rd Floor Catherine Marie Guido, Court Attorney Referee 49 3rd Floor Honorable Lisa S. Headley 3 & 3-Conf. A 6th Floor Honorable Robert D. Hettleman 16 & 16-Conf. A Lower main Jodi E. Hirschman, FCSM 20 & 24 Honorable David J. Kaplan 18 & 18-Conf. A 52 th Lauren Norton Lerner, Court Attorney Referee 6 Floor

7th Floor Sue Levy, Court Attorney Referee 40 & 41 8th Floor Lower Main Anthony Lopez, FCSM 20 & 27 & 27-U Lower main Ann Marie Loughlin, FCSM 20 & 26 & 26-U th 7 floor & 6th Jeanette Madrid, Court Attorney Referee 40 & 48 rd 3 floor Honorable Ruben A. Martino 8 & 8-Conf. A 7th and 3rd Rosanna Mazzotta, Court Attorney 40 & 44 Referee th 7 floor Honorable Michael R. Milsap 5 & 5-Conf. A 7th Honorable Peter J. Passidomo 4 & 4-A -- Honorable Peter J. Passidomo Intake I & P 7th Honorable Valerie A. Pels 12 & 12-CONF A -- Honorable Joan L. Piccirillo 5-XMT 3rd Honorable Dakota D. Ramseur 15 & 15- Conf. A 7 intake I Lower main Kemp J. Reaves, FCSM 25 & 25-U -- Honorable Edwina G. Richardson-Mendelson 19 & 19-Conf. A -- Honorable Brenda Rivera 92 & 92-Conf. A th 7 floor Honorable Gayle P. Roberts 1 & 1-Conf A 7th Honorable Fiordaliza A. Rodriguez 11 & 11-Conf. A & intake P -- Honorable Llinet M. Rosado 5-XMT Lower main Paul Ryneski, FCSM 20 & 21 & 21-U

12 7th Honorable Carol R. Sherman 7 & 7-Conf. A & intake I -- Honorable Monica D. Shulman 77 & 77-Conf. A Intake P 7th Honorable Linda Tally 14 & 14-Conf. A & Intake P 7th Honorable Gilbert A. Taylor 10 & 10-Conf. A & intake P -- Tamra Walker, Court Attorney Referee 40 & 52

KINGS COUNTY FAMILY COURT

Judge Part Honorable Maria Arias 9- 9A Lisa Aschkenasy, Court Attorney Referee 51 Honorable Elizabeth Barnett 4 Kathryn A. Baur, FCSM 25 & 25-ES Honorable Alan Beckoff 2 & 2A Honorable Sharon A. Bourne-Clarke 14 & 14A Jennifer L. Castaldi, FCSM 29 Susan S. Danoff, JHO 52 Honorable Ben Darvil Jr. 7 & 7A Honorable Jacqueline B. Deane 15 & 15A Honorable Alicea Elloras 21 John M. Fasone, FCSM 27 & 27-ES Honorable Ilana Gruebel 8 Adele Alexis Harris, FCSM 22 & 22-ES Andrea Hecht-Zaki, FCSM 28 & 28-ES Frank M. Hoelldobler, Court Attorney Referee 42 Honorable Dean T. Kusakabe 16 & 16A Emily M. Martinez, Court Attorney Referee 44 & Intake A Nisha Menon, Court Attorney Referee 48 Jennifer Mitek, Court Attorney Referee 43 & Intake A Mirna Mompelas, FCSM 24 & 24-ES Honorable Margaret Morgan 10 & 10A Honorable Robert D. Mulroy 12 & 12A Honorable Ann E. OShea 17 & 17A Nicholas J. Palos, FCSM 26 & 26-ES Honorable William Franc Perry Special Honorable Erik S. Pitchal 20 & 20A Richard N. Ross, JHO Intake A Honorable Jeanette Ruiz 1 & 1A Honorable Barbara Salinitro 5 & 5A Elizabeth Shamahs, FCSM 23 & 23-ES & 23-IDV Denise M. Valme-Lundy, Court Attorney Referee 54 Honorable Javier E. Vargas 3 Honorable Judith D. Waksberg 19 Valerie Waldeier, Court Attorney Referee Intake A & Intake B Honorable Lillian Wan 18 & 18A Honorable Amanda E. White 11 Honorable Jacqueline D. Williams 6 & 6A Edward W. Yuskevich, Court Attorney Referee 40 Honorable Alexander Calabrese 80RH

13

NEW YORK COUNTY FAMILY COURT

FLOOR Judge Part Honorable Leticia M. Ramirez 80 V 9s Gail A. Adams, Court Attorney Referee 46 4D1 Lewis A. Borofsky, FCSM 23 8N Marva A. Burnett Esq., Court Attorney Referee 48 8E3A Tionnei Clarke, FCSM 34 5F1 Christopher W. Coffey Esq., Court Attorney Referee 49 5A1 Susan M. Doherty Esq., Court Attorney Referee 41 8E2A Vanessa Evans, FCSM 24 & 24A 8S Honorable Adetokunbo O. Fasanya 5 & 5-CONF A -- Honorable Carol Goldstein 2 & 2-CONF A 9N Paul H. Grosvenor, JHO 90-FCR -- Patricia A. Hickey, FCSM 38-ISP 6S Honorable Douglas E. Hoffman 9 5N Honorable Ta-Tanisha D. James 4 & 4-CONF A 7B1 George L. Jurow, JHO 53 4D2 Karen D. Kolomechuk, FCSM 21 4N Honorable Karen I. Lupuloff 1 & 1-CONF A -- Kevin Mahoney, FCSM 39A 5N Honorable Emily M. Olshansky 6 & 6-CONF A 5S Honorable Jane Pearl 10 & 10-CONF A 5S Honorable Clark V. Richardson 11 & 11-CONF A 7E Fiordaliza A. Rodriguez, Court Attorney Referee 50 6N Serena Rosario, FCSM 22 8A3 Robert F.X. Ross, FCSM 33 8E2B Paul Ryneski, FCSM 36 8C3A Linda H. Safron, FCSM 35 5B1 Pamela Scheininger, Court Attorney Referee 43 9S Stephanie Schwartz, Court Attorney Referee 45 7E & 9N Tamara Schwartz, Court Attorney Referee 42 & 90-FCR 8E1A Jessica Sin, FCSM 26 -- Honorable J. Machelle Sweeting 3 6S 81 & 81A Matthew Troy, FCSM

4N4D18 Honorable Stewart H. Weinstein 7 & 7-CONF A Cheryl Weir-Reeves, FCSM 20

14 RICHMOND COUNTY FAMILY COURT

Court Location Judge Part 25 Hyatt Street Alexandra Byun, Court Attorney Referee Part 40 25 Hyatt Street Gregory L. Gliedman, FCSM Part 22 25 Hyatt Street Janele Hyer-Spencer, FCSM Part 21 Richmond County Family Court Honorable Peter F. DeLizzo 4 & 4A Richmond County Family Court Alison M. Hamanjian, Court Attorney Referee 42 Richmond County Family Court Honorable Arnold Lim 3 & 3A Richmond County Family Court Honorable Helene D. Sacco 2 Richmond County Family Court Honorable Karen B. Wolff 1 & 1a

QUEENS COUNTY FAMILY COURT

FLOOR Judge Part -- Ashley Black, Court Attorney Referee 50 370 Joette M. Blaustein, FCSM 22 & 22 IDV & 22-E 320 Honorable Stephen J. Bogacz 8 & 8-Conf-A 260 Honorable Robert I. Caloras 6 3E Katerina Contaratos, FCSM 26 110 Honorable Diane Costanzo 10 & 10-Conf A 430 Michael J. Fondacaro, FCSM 25 & 25-E 220 Honorable Connie Gonzalez 1 & 1-CONF A -- Solange N. Grey-Humphreys, FCSM 28 & 28-E 390 Honorable John M. Hunt 2 -- Honorable Anne-Marie Jolly 16 340 Sudeep Kaur, FCSM 24 & 24-E 470 David A. Kirshblum, FCSM 20 & 20-E --- JANE A. MCGRADY, Court Attorney Referee 40 & CVO-A 230 Wanda Wardlaw Matthews, Court Attorney Referee 48 3E Honorable Margaret Morgan 27XMT 3W Marilyn J. Moriber Esq, Court Attorney Referee 49 & CVO-A 240 Margaret M. Mulrooney Esq., Court Attorney Referee 44 3E Mary Elizabeth Neggie, FCSM 27 & 27-E 490 Honorable Mildred T. Negron 9 360 Honorable Mary R. ODonoghue 12 & 12-CONF A 350 Honorable Dweynie E. Paul 7 & 7-CONF A 250 Honorable Joan L. Piccirillo 5 & 5-CONF A & 5-FTC 280 CRAIG RAMSEUR, Court Attorney Referee 46 -- Honorable Marybeth S. Richroath 14 290 Honorable Emily Ruben 4 & 4-CONF A 440 Julie Stanton Esq., Court Attorney Referee 45 & CVO-A -- Honorable Carol Ann Stokinger 3 480 Juanita E. Wing, Court Attorney Referee 43 & CVO-A -- Marilyn L. Zarrello Esq., Court Attorney Referee 51

15 PLAYERS IN THE COURT

 Judges - The judge is in charge of the hearing (trial). He or she listens to witnesses, examines evidence, and then decides if the case has been proven. There are no juries in Family Court.  Support Magistrates - Support magistrates are appointed by the Unified Court System Chief Administrator for a three-year term, to hear and determine support proceedings. Pursuant to the Uniform Rules '205.34, a support proceeding will immediately be assigned to a support magistrate rather than a judge. Where the issue of child support arises in another type of case before a judge (such as an order of protection or custody case), that judge will enter a temporary order of support and refer the case to a support magistrate for further proceedings. Support cases (petitions filed seeking support for a child or spouse) and paternity cases (petitions filed requesting the court to enter an order declaring someone to be the father of a child) are heard by support magistrates.  Court Officers - Uniformed Court Officers are assigned to every courtroom and hearing room. They are responsible for security throughout the building, and also call the parties into the hearing rooms when the judges or support magistrates are ready to hear each case. You can check-in with the court officers assigned to the part.  Clerks - The court clerk or court assistant sits near the judge or support magistrate and prepares court orders for the judge or support magistrate to sign.  Court-Attorneys/Law Secretaries - A court attorney is a lawyer who works with and assists the judge by researching legal questions and helping to write decisions. The court attorney may also meet with the attorneys or parties to a case to try to reach an agreement without the need for a trial; this is called “case conferencing.”  Court-Attorney Referees - Some cases such as custody and visitation are conducted by a referee who may hear and decide the case and issue orders, or hear the case and refer to a judge for a decision.  18-b’s – An 18-b lawyer is a lawyer in private practice who is assigned by the court to represent a person in court who cannot afford to pay. They are also known as court-appointed attorneys.  Lawyer for Child(ren) – A lawyer is assigned by the judge to represent a child in a Family Court case. A lawyer for child(ren) can be 18-b attorneys or attorneys who work for special agencies that represent children such as the Children’s Law Center (in Brooklyn and the Bronx) or Lawyers for Children (in Manhattan).  Guardian Ad Litem - A guardian ad litem is a person assigned by the judge to act in place of a parent for a child whose parents are required to appear in court but are not available to appear, or assigned for an adult who is mentally or physically unable to speak for himself or herself in court  Probation Officers work for the Department of Probation, and prepare reports for the judges about the people involved in the cases. The Probation Officer assigned to the courtroom is called a Court Liaison Officer ("CLO").  ACS stands for the Administration for Children’s Services, the city agency responsible for the welfare of children. Petitioners may also refer to it as Bureau of Child Welfare “BCW” or Child Welfare Administration “CWA,” its former names. The Family Court may ask ACS to investigate the parents and do a home study to assess the child’s safety and living situation.

16  District Attorneys are the Prosecutors representing the City of New York. They may be present for juvenile delinquency cases.  SACC or ACC stands for Special Assistant Corporation Counsel or Assistant Corporation Counsel. SACC are NYC attorneys who represent ACD on abuse/neglect cases and ACC represent the City on juvenile delinquency cases.

17 “HOW TO” GUIDE ON ORDERS OF PROTECTION

This guide is abbreviated. For more detailed information on Order of Protection cases, please see Her Justice’s Order of Protection manual entitled “Representing Victims of Domestic Violence in Family Offense Proceedings.”

SAFETY PLANNING  Before representing a client seeking an Order of Protection, it is important to understand that such orders are not bulletproof and often will serve to further enrage an abuser. A woman is often in the greatest danger when she leaves a violent relationship or attempts to seek legal protection for herself. Many women who leave or take action against their abusers are stalked, harassed, attacked and even killed by their abusers. Any woman who petitions for an Order of Protection should be especially conscious of her safety and plan accordingly before filing a petition. Attorneys should discuss safety planning with their clients at the very first meeting, before a petition is filed in Family Court. (See Her Justice Family Court Order of Protection Manual, entitled “Representing Victims of Domestic Violence in Family Offense Proceedings”)

STANDING TO FILE IN FAMILY COURT

 Family Courts have been authorized to issue civil orders of protection against the non-relatives of domestic violence victims under a bill signed into law by Governor A. Paterson on July 21, 2008. Previously, the family court had contained a relatively restrictive definition of “family” in prescribing who has standing to seek an order of protection in Family Court, encompassing only the first four categories noted below. The 2008 law extended civil orders of protection to people who have had an “intimate relationship” with their alleged abusers and includes intimate partners, including dating couples and same sex couples and teenage couples. The victims need not ever have lived with their abusers nor have been sexually intimate with them for the relationship to qualify under the new law.

 Pursuant to Family Court Act §§ 812, 821 and 822, only the following persons have standing to file a family offense petition in Family Court: o persons related by consanguinity1 or affinity2 o persons legally married o divorced persons o persons with a child in common o persons in an intimate partner relationship

 The person who files the petition is referred to as "petitioner," while the opposing party is called "respondent."

GETTING AN ORDER OF PROTECTION

 Which county should the petition be filed in?

1 Related by blood. 2 Related by marriage (relation one spouse has to blood relatives of other spouse). 18 o Pursuant to FCA §818, a victim of domestic violence may file her petition in either (1) the county in which the acts occurred; (2) the county in which either party resides; or (3) the county in which the family resides. If she is residing in a battered women’s shelter, she may file her petition in the county in which the shelter is located.

 Step 1: Initial Filing of the Petition o Pro Se Filing - In general, most women will file for an order of protection pro se by going to the petition room in the Family Court and saying they want an order of protection. The individual who asks for the order of protection is the “petitioner” and the accused abuser is the “respondent.” A clerk will type up their family offense petition which asks for an order of protection and sets forth the allegations.

o Attorney Filing - If an attorney is retained prior to the commencement of the proceeding, the attorney should prepare the family offense petition. The attorney may also prepare the summons or may ask the clerk to issue a summons on the court’s form. When an attorney drafts the family offense petition, the attorney must accompany the client to Family Court to file the petition in the petition room and make an application for a temporary order of protection in the intake part. If you have a client that has already filed a petition pro se, review their petition to ensure that it is legally sufficient, and if it is not, you should file an amended petition where not more than 20 days have passed since her original petition was filed and served upon the respondent. If more than 20 days have passed since her original filing and service, then you must seek leave of court seeking permission to amend her original filing. If granted, you will then file the amended petition and serve it upon the Respondent prior to the next return date.

o You can download official court forms and petitions from the Unified Court website at www.nycourts.gov. Please copy your mentor with a draft of your pleadings prior to filing them in court.

o Family offenses include the following, pursuant to FCA §812: . Disorderly Conduct . Harassment (1st and 2nd Degree) . Aggravated Harassment in the 2nd Degree . Sexual Misconduct . Sexual Abuse (2nd and 3rd Degree) . Forcible Touching . Stalking (1st, 2nd 3rd and 4th Degree) . Criminal Mischief . Menacing (2nd and 3rd Degree) . Reckless Endangerment . Criminal Obstruction of Breathing or Blood Circulation . Strangulation (2nd and 3rd Degree) . Assault (2nd and 3rd Degrees) . Attempted Assault . [NEW] Identity Theft (1st, 2nd and 3rd Degree) . Grand Larceny (3rd and 4th Degree) . Coercion (2nd Degree)

o It is advisable to arrive at the courthouse as early as possible after 9 a.m. to file the petition. Although it may vary from county to county, women often are kept waiting 19 until the late afternoon to see a judge regarding their application for a temporary order of protection. Early arrival at the courthouse increases the likelihood that the application for a temporary order of protection will be heard before the court’s 1:00 p.m. lunch recess.

 What information should the petition include? o Any and all allegations of physical, mental, and emotional abuse along with any allegations of threats, mental illness or drug abuse o The relationship of the respondent to the petitioner to establish standing o The name of each child in the household and that child’s relationship to each party o A request for an order of protection o A description of any aggravating circumstances o A description of any related cases or any other proceedings which involve the same acts described

 Step 2: Seeing the judge o When the petition is complete, it is sent to a courtroom called the intake part. The petitioner (with or without her attorney) will make a brief appearance before a judge and request a temporary order of protection. She will be asked a few questions about the allegations that she signed off on. She must be very clear as to the temporary relief she seeks. For example, if she wants to have the abuser excluded from the home or prohibit his interference with custody of the children, or to refrain from texting or emailing her, she or her attorney must tell the judge this specifically.

o The return date is the date when the petitioner and respondent must both return to court and the Judge decides whether a permanent order of protection should be granted. The petitioner must provide proof of service upon the respondent by submitting the Affidavit of Service that she was provided by the clerk.

o Where filings occur after hours, those matters are referred to the criminal court for handling the request for a temporary order of protection. Thereafter, the matter is returned to the Family Court. Pursuant to FCA §154-b, an order of protection must plainly state the date that it expires. A temporary order of protection will expire on the return date or adjourn date of the petition and usually will be renewed at each successive court date on the same terms until the case is completed.

Step 3: Petitioner must pick up the Family Offense Petition, Summons sheet and Temporary Order of Protection from Court Action Processing Unit (CAP Unit/CAPU).  Step 4: How to serve the opposing party o After the court determines what temporary relief will be granted, a return court date will be scheduled. The petitioner will be given the Temporary Order of Protection, a copy of the Summons and Family Offense Petition, and a blank Affidavit of Service. She also will be given an instruction sheet describing how service must be made. Note, the court may also inform her that they have asked the Sherriff to effectuate service on her behalf. Be sure to clarify with your client what she was told at the CAP Unit.

FCA §826 provides that unless a warrant has been issued, the summons and petition shall be served by personal delivery to the respondent at least 24 hours before the return court date. NOTE: Personal delivery to the respondent is required. This is not the same thing as personal service under CPLR §308,

20 which permits, among other things, “substituted service,” i.e., the leaving of court papers with a person of suitable age and discretion at a party’s home or business. Anyone who is over the age of 18 and not party to the action may serve the respondent and then fill out the Affidavit of Service. o If she elects to have the police serve, they are mandated to serve Orders of Protection and any related papers. It is advisable for the petitioner to go directly to the police precinct to have her papers served. She can ask to speak to the Domestic Violence Liaison Police Officer who can assist her with setting up service and any other concerns she may have. She should get contact information so that she can retrieve the NYPD proof of service (Statement of Personal Service) prior to her return date.

o Where court issues a warrant, instead of a summons, the court issues a “certificate of warrant”. FCA §827 provides that a petitioner may not serve a warrant, unless granted express permission to do so by the court. The court can issue to the petitioner a certificate stating that a warrant for the respondent has been issued by the court. A police officer, upon being presented with such a “certificate of warrant,” is authorized to arrest the respondent (FCA §§ 827, 168). The certificate of warrant expires 90 days from the date of issue, but may be renewed as necessary by the clerk of the court.

It is very important that the Family Offense Petition, Summons and Temporary Order of Protection be served on the Respondent as soon as possible because the Temporary Order of Protection only goes into effect after the Respondent is given notice.

o If after reasonable efforts, the respondent cannot be served, a Motion for Alternate Service can be made. Usually, you can bring an Affidavit of Attempted Service to the court setting forth efforts to locate the respondent, and orally ask the court to grant alternate service, avoiding having to prepare a formal written motion.

 Step 5: What to bring to the return date

o File a Notice of Appearance at the court if you have not done so already. You can prepare one in advance or fill out the Notice of Appearance form that is located either on the table in the courtroom or given to you by the court officer.

o The Petitioner should arrive promptly at the set date and time of the return date. o The Affidavit of Service: If the court accepts the Affidavit of Service or NYPD Statement of Personal Service, the court will note the case as “issue joined” which means that the court has satisfactory proof that the Respondent was properly served with notice to appear in court. Please ensure that the Affidavit of Service is properly completed and notarized, as required if served by someone other than a police officer. o o Any physical evidence of the abuse including photographs of injuries, police reports, hospital records, threatening letters, etc.).

o Any adult(s) who witnessed the abuse and would be willing to tell the Judge what they saw.

 Step 6: What happens on the return date

21 o The return date is the next court date. The first return date after the petitioner files the case is called the “return of process” or sometimes, “first appearance.” At the first return date, the petitioner must prove that proper service was made on the respondent.

Scenario 1: Adjournment or Consent o At the return date both parties are afforded the right to speak on their behalf. They will also be asked if they wish to have an attorney and if they can’t afford one, court will appoint an 18-b panel attorney paid for by the state assuming that the person is financially eligible for this type of assignment. This usually means that the case will be adjourned for the respondent to either obtain his own counsel or meet his assigned counsel on the return date. o Important Consideration: Either a Judge or Court Attorney Referee (Referee) is empowered to hear a request for an order of protection. In certain cases, you may want to have your case heard by a Judge instead of a Referee. You will have an opportunity to tell a Referee that your client wishes to be heard by a Judge. You will not, however, have control over which Judge the case is put in front of, so it is very important that you check in with your Her Justice mentor prior to appearing in court to determine the best course of action to take based on the facts of your client’s case. o At the return date, the respondent may elect to consent to an order or protection at which time the Judge will give the petitioner a final order of protection either for one or two years. The respondent’s consent to an order of protection has the same effect as if she were to give testimony at a hearing and were the Judge to find that he committed a family offense. Note, however, where a consent is entered, the Respondent is not admitting or denying any specific allegations she made in the Family Offense petition. Therefore, there are no findings on the record that he committed a family offense. o Expect that if the Respondent is willing to consent, but he does not have counsel, that a Court Attorney in cases where the matter is before a Judge, will conference the case with the parties. Note, at no time, should you give advice to an unrepresented party as to consequences of entering a consent order.

Scenario 2: Respondent’s Default o If the respondent does not appear on a return date, so long as the court has proof that he has been served, the judge may make a decision (on default) without respondent’s presence, order a new return date or issue an arrest warrant for the respondent. Where possible, advocate that the court accept proof of service as a sufficient basis to mark the case as “issue joined.” o Ask for an inquest to be conducted. An inquest is a one-sided hearing where your client testifies as to the allegations she made in her petition. You will conduct a direct examination and the court may also ask questions of your client prior to making their determination of whether she is entitled to an order of protection. If the court is satisfied that your client has proven that a family offense occurred, then the client will be granted an Order of Protection on Default. The length of time is generally no longer than two years.

Scenario 3: Hearing/Trial

22 o If the respondent does not consent, the judge will adjourn the case for either a conference to gather more facts from the parties or a fact-finding hearing (ortrial) to determine whether the Respondent has committed a family offense. Prior to the conclusion of every court appearance, be sure to get the temporary order of protection extended until the next court date and get copies of the order in the CAP Unit. If the client needs additional relief in the temporary order of protection, you can make an oral application for additional relief to be included. You should be prepared to state the reasons why the client needs the additional relief.

 What happens at a fact-finding hearing o At the fact-finding hearing (or trial) the petitioner can show evidence of abuse through witnesses, photographs and reports and the respondent can defend himself with his own evidence, testimony and witnesses.

o The judge (or referee) decides the case without a jury.

 Step 7: How to prepare for the hearing

o Develop a Theory of the Case

o Identify the Elements of the Case

o Review the Court File

o Gather Evidence – subpoena documents with proper certification and delegation of authority forms

o Subpoena witnesses if necessary

o Make a Demand for Verified Bill of Particulars when the batterer has filed a petition or cross-petition against your client and the allegations are not specific enough for your client to understand and defend against. You can file a motion to dismiss the entire petition for lack of specificity.

o Prepare the client for Direct Examination and prepare your client for cross-examination by the opposing party

o Identify and Prepare Any Witnesses . If you are expecting a case to go to trial, try to anticipate how many witnesses and how much time you will need for their testimony so the court can estimate how much time to set aside for your trial. In addition, before setting down trial dates, make sure to contact your witnesses to assess their availability for testimony. Inquire about their work schedules, appointments and planned vacations to avoid scheduling conflicts.

. You may need to subpoena a witness so that they can be excused from work or be compelled to come to the court date. If a witness fails to appear, the court may adjourn so they can appear or issue a warrant.

23 . Prepare your witness for their testimony well before the court date. Ensure that your witness is available to be called at any time, unless you are given a time certain. In the event that your client works or lives a short distance from the courthouse, you can inform the judge that you have a witness on call who can be in court within a half hour and for a recall of the case or offer to start with another witness while waiting.

o Prepare Exhibits and Evidence

o Prepare Cross Examination of the Respondent

o Serve the opposing party or his counsel with a Demand for Witness List, Demand for Expert List, and a Demand for Documents to be used at Trial. (CPLR 3101) This will give you an idea of the opposing party's plan of action at trial.

o Prepare a Closing Statement

Note: See Her Justice Order of Protection Manual for more information

 What will the final order look like?

o A final order of protection may set forth “reasonable conditions of behavior” to be observed by the abuser/respondent, as described in FCA §842. The final order of protection may be effective for any duration up to two years. Most courts issue final orders of protection that are effective for two years from the date of issuance. A final order of protection may be effective for any duration up to five years if the court finds “aggravating circumstances” or if the court has found that the respondent has violated an order of protection. Aggravating circumstances must be proven specifically and found by the Court on the record as a basis for the issuance of a final order of protection for any duration in excess of two years. Aggravating circumstances include:

. physical injury to the petitioner . the use of a dangerous instrument against the petitioner . a history of repeated violations of prior orders of protection . prior convictions for crimes against petitioner . exposure of any family or household member to physical injury . like incidents and behavior which constitute an immediate and ongoing danger to the petitioner or household members

 What if my client is the respondent?

o Often an abuser will pursue an order of protection, either in retaliation for an order she sought or is seeking against him, or to further harass her through the court system.

o Make sure your client knows to call you immediately if she is arrested so that you may advocate on her behalf immediately with the police and the District Attorney’s office and help to find her a criminal attorney, if necessary.

24 o If your client does not have an order of protection herself, and the abuser’s actions against her warrant one, you should work with her to file her own family offense petition immediately, following the practices outlined in this manual. She can file her own family offense petition, or file a cross-petition or counter-claim in response to the abuser’s petition. Be aware, however, that filing a counter-claim instead of a petition will not give your client the chance to obtain an immediate temporary order of protection for herself.

Locating a Defendant after Arrest

If an adverse party is arrested, he/she will be processed through the Criminal Justice System. This is an automated system where the caller is prompted to input the defendant’s name and date of birth. To obtain information about the release of an offender, who has been sentenced to incarceration, dial 1(888) VINE4NY (846-3469).

For more detailed information on Order of Protection cases, please see Her Justice’s Order of Protection manual entitled “Representing Survivor’s of Domestic Violence in Family Offense Proceedings.”

25 “HOW TO” GUIDE ON FILING FOR CHILD CUSTODY/VISITATION

This guide is abbreviated. For more detailed information on Custody and Visitation cases, please see Her Justice’s manual entitled “Litigating Custody and Visitation Matters in Family Court.”

What is an Order of Custody?

 An order of custody gives responsibility for the care, control and maintenance of a child to one or both of the child’s parents or to another party.

What is an Order of Visitation?

 An order of visitation is an order directing visitation for a non-custodial parent, a grandparent, or a sibling. Visitation can be supervised or unsupervised. Orders should be specific regarding dates and times of visits including pick-p and drop-off times, locations of visits, holiday and vacation schedules, who should pay for any costs relating to visitation, and what happens if a visit is canceled or pick-up/drop-off is late.

Who Can File For Custody?

 If the child lives in New York State (or recently lived in New York State for at least 6 months), the New York Courts has jurisdiction over order who gets custody and visitation in Family Court or Supreme Court.

 Custody can be requested by a child’s parent, whether married or unmarried, or a non-parent (like a grandparent, brother or sister).

 The primary caregiver of the child usually has more right to custody than the other parent (note: primary caregiver does not mean the mother of the child, it refers to the parent who has been more involved in the child’s day-to-day activities).

What is the Standard of Review?

 When there is a custody issue between two parents, the Court must decide what is in the best interests of the child.

 When there is a custody case between a parent and a non-parent, the non-parent must convince the Court that there are extraordinary circumstances present that require the Court to consider giving custody to the non-parent. Once the court decides the non-parent has standing, the court will make a best interest determination.

 The standard for visitation is also best interest of the child.

How To File

 Step 1: To get a custody or visitation order from Family Court you must go to the petition room and file a custody or visitation petition. 26

There are various forms of custody, including: 1) Sole Custody: Physical custody and legal decision making is granted to one parent 2) Joint Legal custody: Parent’s share jointly in decision making on issues involving religion, medical and education of the child 3) Shared Custody: Parent’s share equally in the amount of time the child spends in the other parent’s home 4) Split Custody: Where there are two or more children and each parent has sole physical and legal custody of at least one of the children

If your client has already filed a petition pro se, review the petition to make sure it is legally sufficient. Many petitions generated at the petition room omit important information as to why the client is seeking the requested relief. If there are insufficient facts to support your client’s position, you may seek to amend the petition. If more than 20 days have passed since the petition was served upon the Respondent, then you must seek leave to amend the custody or visitation petition.

Attorney Filing - If you are retained prior to the commencement of the proceeding, then you should prepare the petition. The attorney may also prepare the summons or may ask the clerk to issue a summons on the court’s form. When an attorney drafts the petition, the attorney must accompany the client to Family Court to file the petition and make an application for the temporary order of custody/visitation. You can download official court forms and petitions from the Unified Court website at www.nycourts.gov.

 Step 2: The client is then sent to intake where the client or attorney will be given a copy of the petition and summons with a return date listed, petition, affidavit of service and instruction sheet for how service should be made. The judge may issue a temporary order of custody or visitation at intake. Note: some judges will not issue temporary orders of custody or visitation until all parties are before the court, except in emergency situations.

 Step 3: A copy of the petition and summons must be served on the opposing party(ies) personally at least eight (8) days before the return date upon which he must appear in court. If reasonable efforts have been made and the respondent cannot be served, a Motion for Alternate Service can be made. Usually you can bring an Affidavit of Attempted Service to the court and seek alternate service orally without a formal written motion.

 Step 4: If an attorney has been retained after a client has already filed a petition. the attorney needs to ascertain whether the case has been “set down” for a hearing. Check the court website at e-courts to confirm the hearing date, or call the court.

 Step 5: The return date is the next court date. The first return date after the

27 petitioner files the case is called the “return of process” or “first appearance.” At the first return date, the petitioner must prove that proper service was made on the respondent.

You should be sure to get the temporary custody or visitation order extended until the next court date and get copies of the order in the CAP Unit. If the client needs additional relief in the temporary order of custody/visitation, you can make an oral application for additional relief to be included. Be prepared to state the reasons why the client needs the additional relief.

At the return date both parties are afforded the right to speak on their behalf. They will also be asked if they wish to have a lawyer and if they cannot afford an attorney, the court will assign an 18-b panel attorney paid for by the court

 Step 6: If there have been several appearances already made by the client alone, the attorney should review the court file in the record room. The record room will pull the case file from the court part. Expect to spend a considerable amount of time waiting for the case to be pulled. The clerk may remove information that is deemed confidential and may tell you that you can only take notes from the file, not make photocopies. Alternatively, you may attempt to see if you are given the opportunity to review the file while sitting in the back of the courtroom. Please note, you may be redirected to the record room. You will need to have a Notice of Appearance on file in order to review the file.

 Step 7: Hearing Preparation

Lawyer for Child: An attorney for the child or children may be assigned by the court to represent the children’s interest throughout the proceedings.

. Develop a Theory of the Case

. Interview Witnesses: If you are expecting a case to go to trial, try to anticipate how many witnesses and how much time you will need for their testimony so the court can estimate how much time to set aside for your trial. In addition, before setting down trial dates, make sure to contact your witnesses to assess their availability for testimony. Inquire about their work schedules appointments and planned vacations to avoid scheduling conflicts.

. You may need to subpoena a witness so that they can be excused from work or be compelled to come to the court date. If a witness fails to appear, the court may adjourn so they can appear or issue a warrant.

. Prepare your witness for their testimony well before the court date. Ensure that your witness is available to be called at any time, unless you are given a time certain. In the event that your client works or lives a short distance from the courthouse, you can inform the judge that you have a witness on call who can be

28 in court within a half hour and for a recall of the case or offer to start with another witness while waiting.

. Discovery: Investigation and Disclosure

. Court may require a Court-Order Investigation (COI) by Administration for Children’s Services (ACS) or the Probation Department. Where a Judge is seeking additional information about the parties’ home living situation, he/she will order either ACS or Probation to conduct a home visit and report back to the court. Please note, this is not the same as a telephone hotline call being made to the Child Abuse & Maltreatment Registry.

. Court may order forensic evaluations  Where a Judge will find it useful for a psychologist or psychiatrist to provide a written report noting background information as to the parent’s own history of rearing or parenting style, they may order forensics. The results of the investigation are provided to the parties’ attorneys prior to being given to the court for review.

. Challenge unfavorable reports

. Find and use expert witnesses if needed

. Serve the opposing party or his counsel with a Demand for Witness List, Demand for Expert List, and a Demand for Documents to be Used at Trial. (CPLR 3101) This will give you an idea of the opposing party's plan of action at trial.

 Step 8: The Evidentiary Hearing (trial or fact-finding) – At the hearing the judge hears testimony from the parties, witnesses and expert witnesses. The court may conduct an “in camera” interview with the child, with the attorney for the child present.

Note: Please refer to Her Justice Manual entitled “Representing Clients in Custody and Visitation Proceedings” for more detailed information.

29 “HOW TO” GUIDE ON FILING FOR CHILD SUPPORT

This guide is abbreviated. For more detailed information on Child and Spousal Support cases, please see Her Justice manual entitled “Litigating Child and Spousal Support Cases in Family Court.”

The Law Governing Child Support Determinations  In New York State, child support is determined pursuant to the Child Support Standards Act (CSSA). The CSSA, which was enacted in 1989, sets forth a strict formula for determination of the amount of support that the custodial and non-custodial parents are required to contribute to their child. The CSSA provisions for determining the amount of child support are found in the Family Court Act § 413 and repeated in Domestic Relations Law § 240.

 Both parents of a child must provide financial support until the child is 21 years old or becomes emancipated.

Jurisdiction over Child Support Matters  The Family Court has jurisdiction to hear and determine any child support matter, which may be heard in the State of New York unless the Supreme Court has explicitly retained exclusive jurisdiction.

 In Family Court child support cases are heard by Support Magistrates. See the Uniform Rules for the Family Court, sections 205.32-205.44 for more information regarding Support Magistrate duties and procedures. The Support Magistrate’s decision will be reviewed by a Family Court Judge upon a party’s objection to the decision.

Who Is Entitled to Collect Child Support?  Virtually any person or entity exercising care and custody over a child is entitled to collect child support from any person obligated to pay support including: the parent with primary responsibility for the child; a non-parent who is caring for the child; or a child or person on behalf of the child. A custody order is not needed to seek support.

 Note: Paternity must be established before seeking child support. If paternity has not been established, then the petitioner must first file and serve a paternity petition on the respondent. If paternity is established, the court will enter an Order of Filiation declaring the Respondent to be the legal father. Once an Order of Filiation is entered, the father will have a legal right to seek custody or visitation. The paternity petition converts to a child support matter for purposes of determining a final order of support—no separate child support petition is needed. After establishment of paternity, the Support Magistrate must then enter a temporary order of child support. Paternity petitions are filed and served in the same manner as child support cases, as described below.

Note: if a woman seeking child support is married and is also seeking spousal support, she can file the spousal support and child support petitions together, in one petition.  The Filing Process

 Step 1: File petition and summons with the Family Court in the petition room. Petitions for child support can either be filed pro se by a client in Family Court or prepared by an attorney.

30 i. A Pro Se Petition: In most cases referred to Her Justice volunteer attorneys, a child support petition already has been filed. To file a pro se child support petition, a party goes first to the Support Collection Unit (SCU) in the Family Court where a case is opened by an SCU caseworker, who asks if the client wants SCU collection services. After the SCU interview, petitioner proceeds to the petition room and is interviewed by the petition clerk. If the parties are divorced, the clerk will require a copy of the divorce decree to be produced to assure that the Family Court has jurisdiction over the proceeding.

Return dates may be six to eight weeks in the future. If there have been prior support proceedings between the parties, the case will generally be assigned to the same support magistrate who they previously appeared before. The petitioner will be given the option to find someone to personally deliver the Petition, Summons and a Financial Disclosure Affidavit upon the Respondent or will be told that the court will handle service by mailing these papers to the mailing address she provided to the court. There is no appearance before a Support Magistrate on the date that the petition is filed and the petitioner does not receive any temporary order of support at that time.

An attorney who is retained after a party has filed a child support petition pro se should review the pro se petition to ensure that it is accurate and complete; if not, the attorney should file an amended petition.

ii. An Attorney-Drafted Petition: An attorney may draft and file the summons and petition in a child support proceeding. A child support petition must be sworn and verified, but the allegations in the petition may be made upon information and belief. FCA '423. On an original petition, it is essential that in addition to the allegations required for support that, concurrent with filing the summons and petition, the attorney assures that petitioner applies for or declines SCU services. The summons and petition are submitted to the Petition Room, where the case will be assigned a File and Docket Number and a return date. The summons and petition will not be processed immediately; an attorney should inquire as to when it can be picked up. They will usually be ready within a few days.

Unlike other types of proceedings in Family Court, there is no intake part for support matters to be heard on the same day that the petition is filed. In cases of emergency and where there is an order of protection in place, an application for emergency support can be made at the Order of Protection return date.

You can download official court forms and petitions from the Unified Court System website at www.courts.state.ny.us. iii. The Summons - Pursuant to Family Court Act '426, the Summons in a child support proceeding under Article 4, must contain the following notice:  Respondent’s failure to appear shall result in the entry of an order of default, AND  Respondent must provide the court with proof of his/her income and assets, AND

31  An order of support will be made on the return date of the summons, AND  Respondent’s failure to appear may result in the suspension of his driving privileges; state professional, occupational and business licenses; and recreational licenses and permits.

 Step 2: Service of the Summons and Petition

Pursuant to Family Court Act '427, the summons and petition must be served at least eight days prior to the date of the court appearance. A summons and petition in a child support case may be served in any of the following ways:

i. By personal delivery to respondent (FCA '427(a)); OR ii. By personal delivery to a person of suitable age and discretion at respondent=s actual place of business, dwelling or usual place of abode and mailing a copy at his last known residence (FCA '427(a)); OR iii. By certified mail to respondent=s last known address, however, the court will not issue an order on default unless there is proof that the respondent had actual notice of the case (e.g. that he signed for the certified mail) (FCA '427(c)); OR iv. Any method outlined in CPLR 308 '(1)(2)(3) or (4), if service by certified mail at respondent=s correct address cannot be accomplished; OR v. Any method of substituted service ordered by the court, if respondent is not served after reasonable effort at personal service (FCA '427(b))

 Step 3: Identify the Issues and Elements of the Case

 Step 4: Gather Information From Your Client

i. Petitioner’s Basic Income and Expenses

ii. Proof of Child Care Expenses and unreimbursed medical expenses

iii. Proof of extraordinary expenses

iv. Petitioner’s Financial Disclosure Affidavit

v. Evidence of Non-custodial Parent’s Income

 Step 6: Identify Any Witnesses

. If you are expecting a case to go to trial, try to anticipate how many witnesses and how much time you will need for their testimony so the court can estimate how much time to set aside for your trial. In addition, before setting down trial dates, make sure to contact your witnesses to assess their availability for testimony. Inquire about their work schedules appointments and planned vacations to avoid scheduling conflicts.

32 . You may need to subpoena a witness so that they can be excused from work or be compelled to come to the court date. If a witness fails to appear, the court may adjourn so they can appear or issue a warrant.

Prepare your witness for their testimony well before the court date. Ensure that your witness is available to be called at any time, unless you are given a time certain. In the event that your client works or lives a short distance from the courthouse, you can inform the judge that you have a witness on call who can be in court within a half hour and for a recall of the case or offer to start with another witness while waiting.

 Step 7: Serve Opposing Party with Discovery Demands

 Step 8: Prepare Testimony and Cross-Examination for Hearing

 Step 9: Serve the opposing party or his counsel with a Demand for Witness List, Demand for Expert List, and a Demand for Documents to be Used at Trial. (CPLR 3101) This will give you an idea of the opposing party's plan of action at trial.

 Step 10: The Evidentiary Hearing (trial or fact-finding). At the hearing the judge gets evidence about the case from witnesses (including expert witnesses), listens to testimony, and documents submitted. Sometimes the judge may speak with the child.

For more detailed information on Child and Spousal Support cases, please see Her Justice Manual entitled “Litigating Child and Spousal Support Cases in Family Court.

33 “HOW TO” GUIDE ON FILING FOR SPOUSAL SUPPORT

This guide is abbreviated. For more detailed information on Child and Spousal Support cases, please see Her Justice manual entitled “Litigating Child and Spousal Support Cases in Family Court.”

What Is Spousal Support?

 Spousal support is money a legally married spouse pays to his/her spouse while they are married. A spouse is able to get financial support in the midst of a divorce or even if the spouses are still living with one another. If living together, the spouse seeking the support must prove that the other spouse is not contributing to the household. Spouses must support each other for life; as long as the parties are married, a Judge or Support Magistrate cannot limit the length of time one can receive spousal support. Once there is a divorce, annulment, or death of a party, spousal support ends. Parties can petition for spousal support in both Family Court and Supreme Court. Parties can petition for spousal support in Family Court when there is no divorce pending in Supreme Court.

 Spousal Support should not be confused with Spousal maintenance, which is a post-divorce award of support, pursuant to Domestic Relations Law §236.

 FCA §412 - Married Person’s Duty To Support Spouse A married person is chargeable with the support of a spouse and, if possessed of sufficient means or able to earn such means, may be required to pay a fair and reasonable sum, having due regard for the circumstances of the parties.

 FCA §416 - Elements of Support An order of support may include the provision of necessary shelter, food, clothing, care, medical attention, expenses of confinement, expense of education, payment of funeral expenses and other proper and reasonable expenses.

 FCA §437 - Presumption of Sufficient Means A person is presumed to have sufficient means to support his spouse and children.

How to Start A Spousal Support Case In Family Court

 Standing: the person who may originate a proceeding for spousal support is a husband or wife, social services official, a guardian ad litem, a committee, conservator, next friend or a person appointed by the court. A divorced person or persons who are not married cannot file for spousal support.

 Note: if a spouse is also seeking child support, she can file the spousal support and child support petitions together (it will be the same petition requesting both spousal and child support rather than two separate petitions).

 Step 1: A spousal support case can be started in the county where either party resides by filing a support petition with the clerk of the court in the petition room. Pursuant to FCA §423, the allegations in a support petition may be made upon information and belief. This can be filed pro se or an attorney may draft and file the summons and petition in a spousal support case. The summons and petition are submitted to the 34 Petition Room, where the case will be assigned a Docket Number and a return date. The petitioner will not see a judge on the date of the filing.

An Attorney-Drafted Petition: An attorney may draft and file the summons and petition in a spousal support proceeding. A spousal support petition must be sworn and verified, but the allegations in the petition may be made upon information and belief. FCA '423. The summons and petition are submitted to the Petition Room, where the case will be assigned a Docket Number and a return date. The summons and petition will not be processed immediately; an attorney should inquire as to when it can be picked up. They will usually be ready within a few days.

You can download official court forms and petitions from the Unified Court System website at www.courts.state.ny.us.

 Step 2: The clerk gives the petitioner two copies of the support petition, a summons and a financial disclosure affidavit form. One of these sets of papers must be served upon the respondent. The summons and petition are the only papers that must be served upon the respondent, however, he should also be served with the financial disclosure affidavit so that he may fill it out.

o Pursuant to FCA §426, the Summons in a support proceeding under Article 4, must contain the notice that: . That respondent’s failure to appear shall result in the entry of an order of default, AND . That respondent must provide the court with proof of his/her income and assets, AND . That a temporary or permanent order of support will be made on the return date of the summons, AND . That a respondent’s failure to appear may result in the suspension of his driving privileges; state professional, occupational and business licenses; and recreational licenses and permits.

 Step 3: Service - Pursuant to FCA §427, the summons and petition must be served at least eight days prior to the date of the court appearance. The summons and petition in a proceeding under Family Court Act Article 4 may be served in any of the following ways:

o By personal delivery upon the respondent (FCA §427(a))

o By personal delivery to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the respondent and mailing a copy at his last known residence (FCA §427(a))

o By certified mail to the last known address of the respondent, however, the court will not issue an order on default unless there is satisfactory proof that the respondent had actual notice of the case (for example, that he signed for the certified mail) (FCA §427(c))

35 o Any method of personal service outlined in CPLR §§308(1)(2)(3) or (4), if service by certified mail at respondent’s correct address cannot be accomplished

o Any method of substituted service ordered by the court, if respondent is not served after reasonable effort at personal service (FCA §427(b))

 Step 4: Parties must exchange and file financial disclosure affidavits.

 Step 5: Identify the Issues and Elements of the Case

 Step 6: Gather Information From Your Client

o Petitioner’s Basic Income and Expenses

o Proof of Child Care Expenses and unreimbursed medical expenses

o Proof of extraordinary expenses

o Petitioner’s Financial Disclosure Affidavit

o Evidence of Spouse’s Income

 Step 7: Identify Any Witnesses

o If you are expecting a case to go to trial, try to anticipate how many witnesses and how much time you will need for trial. That way when the court is setting your case down for trial the Support Magistrate can estimate how much time to set aside for your trial. In addition, before setting down trial dates, make sure to contact your witnesses to assess their availability for testimony. Make sure to ask about their work schedules (i.e. teachers may be free for an afternoon call, but it may be difficult to come at 9:30) and vacations so that you can schedule them when the judge is suggesting trial dates.

o Sometimes you may need to subpoena a witness so that they can be excused from work. It is also a good idea to subpoena them in case they fail to come to the court date and you can tell the Support Magistrate that a subpoenaed witness failed to show up. If you can demonstrate to the Support Magistrate that they may be likely to come to an adjournment, the court may adjourn so they can appear. Otherwise, the court issues a warrant for their arrest for failure to obey a subpoena. Once in court on a warrant, their testimony can be taken from them or the case can adjourned to a new court date for testimony.

o Speak to your witnesses prior to the court date to confirm with them that the case is going forward to trial and that they will be needed on that date. It is not ideal to have witnesses come and wait all day only to have the case adjourned without them testifying. If you are able to do so, and if the witness lives or works close to the court and can get there on short notice, you can have your witnesses "on call" on the trial date. This way, they can go to work and you will make a call to them if they are needed to come in to testify. If it looks like your trial will go forward, you can inform the Support Magistrate that you have a witness on call who can be in court within a half

36 hour and request a moment to call them and ask for a recall of the case or offer to start with another witness while waiting.

 Step 8: Serve Opposing Party with Discovery Demands

 Step 9: Prepare Testimony and Cross-Examination for Hearing

 Step 10: Serve the opposing party or his counsel with a Demand for Witness List, Demand for Expert List, and a Demand for Documents to be Used at Trial. (CPLR 3101) This will give you an idea of the opposing party's plan of action at trial.

 Step 11: The Hearing o The hearing will be conducted by the Support Magistrate in the same manner as a court, without a jury, in conformance with the Civil Practice Law and Rules and Uniform Rules of the Family Court. Uniform Rules §205.36 (a). The allegations of the petition must be established by competent proof. FCA §441. o Spouses are competent witnesses against one another in a support proceeding. FCA §436. o Prepare petitioner to testify as to standards of living while the parties lived together. o Provide documentation as to expenses, especially expenses that are not being met. o Tease out differences between spouse’s expenses and overall household expenses. o Provide as much clear information and documentation as possible. o Prepare to establish why the petitioner is not employed if relevant.

For more detailed information on Child and Spousal Support cases, please see Her Justice’s manual entitled “Litigating Child and Spousal Support Cases in Family Court.”

37 ADJOURNMENTS

 How to get an adjournment

o For Order of Protection cases, FCA § 826(a) provides that if the summons and petition were served less than three days before the return date of her petition, the respondent is entitled to an adjournment upon request. Likewise, if a woman is the respondent in a cross-petition, under FCA §826(a) she arguably is entitled to an adjournment if served less than three days before the return date. In addition, FCA §836 provides that the court may adjourn the hearing of the petition for good cause, upon its own motion or upon the motion of either party.

o For any type of case, in advance you can request an adjournment on consent (by stipulation) without a court appearance. First, call the Judge’s court attorney or clerk to make sure that the Judge will allow an adjournment in advance. Ask the court attorney what procedure the judge wants for adjournments (by stipulation, by motion, etc.) and ascertain both good and bad dates for a new adjourn date. You can then contact the other parties (including the Lawyer for Child(ren)) to see if they will consent to an adjournment. You can prepare a Stipulation of Adjournment that can be submitted to the court in advance and no appearance will be required on the original court date.

o Note: It is a good idea to call the court part on the originally scheduled court date to make sure that they received your Stipulation of Adjournment. If you do not do this, and your Stipulation gets lost or misfiled, the court may dismiss your case.

o Note: Court-Attorney Referees and support magistrates do not have court attorneys. You can speak directly to the Court-Attorney Referees or Support Magistrates about adjournments or any other procedural questions – this is not considered an ex parte communication. However, you should not speak to Court-Attorney Referees or Support Magistrates about substantive issues on your case without all parties present. You can also ask Judges, Court-Attorney Referees’ and Support Magistrates’ clerks for the procedure to obtain an adjournment.

o In court, if you do not have consent to an adjournment, it is possible to make oral application for an adjournment to the judge. State why you are seeking an adjournment, and if the request is reasonable, it is usually granted. However, you should be prepared to go forward on the case if the adjournment is denied. You can object on the record if an adjournment is denied and request a continuance if needed.

 Affidavits of Actual Engagement

o If you have a conflict between two court cases meeting on the same date you can file an affidavit of actual engagement with the Clerk’s office and with the Judge stating: 1) that you are attorney of record; 2) that you are actually engaged in another matter at the same date and time; and 3) that the court and parties/counsel are aware of this actual engagement and have agreed to adjourn the matter.

 In Family Court when cases are adjourned, they are frequently adjourned for 2-3 months and, because of the court's calendar, you may only get a few minutes of time on the adjourn date. If

38 you are contemplating a hearing or complex testimony, ask the judge if you can have consecutive dates for trial. That way, you can finish your trial more quickly.

 Another option is to ask for a "Time Certain" hearing. This is a court date and time that the case will be called or else there may be sanctions. If you have a matter down for a time certain, the case should go forward at that time because the judge has reserved that time for you. Without time certains, a case on for a 9:30 call can be called anywhere between 9:30 and the end of the day.

*** Please note, whenever a case is adjourned or you are requesting an adjournment, be sure to get any temporary orders extended and served on the other party. ***

39 DISCOVERY

Discovery Rights and Options FCA §165(a) provides that the CPLR provisions apply to Family Court proceedings unless the FCA provides otherwise, and to the extent they are appropriate to the proceedings at hand. Thus, disclosure may be demanded pursuant to CPLR Article 31. Please see Family Court Act Articles 4, 5, 6 and 8 for discovery requirements.

In most cases, pre-trial discovery will not be necessary or feasible. Moreover, the breadth of permissible discovery will be dictated on a case-by-case basis by the court’s own practice, the nature of the proceeding, and the need for discovery (FCA §165(a)).

Interrogatories are written questions served upon the other party who has a definite time to answer them. Interrogatories are commonly used in support cases, but not in other Family Court cases without prior permission of the court. They also may require the production of documents and photographs. CPLR §§3130 - 3133 cover the use of interrogatories.

A Demand for a Bill of Particulars can be used in an order of protection case where your client is the respondent.

Documents belonging to the other side can be inspected and duplicated by an attorney by means of a notice for discovery and inspection pursuant to CPLR §3120. The respondent will be required to produce such documents before trial, either by sending them directly to the attorney’s office, or, if the documents are too numerous, by allowing the attorney to view them at their current location.

An attorney also can make a request for a physical or mental examination of the other party(ies).

If the other party(ies) do not respond within the time prescribed to a request for discovery, the attorney can make a motion to compel pursuant to CPLR §3124. The court may sanction noncompliance in several ways, as delineated in CPLR §3126. For example, the court can resolve disputed issues in favor of the party seeking compliance; prohibit the disobedient party from putting forth certain claims or defenses, or from introducing certain evidence or witnesses; or issue a default judgment against the party refusing to comply.

Note: Discovery is limited to financial discovery in custody cases absent court permission. See, e.g., Rubin v. Rubin, 73 A.D.2d 148, 151-52, 425 N.Y.S.2d 331, 333 (1st Dep't 1980). Most discovery in Family Court is done through the use of subpoenas.

Subpoenas

After commencement of an action, any party can serve any other party with a subpoena to allow the serving party to inspect designated documents or enter upon land to inspect the documents (subpoena duces tecum). CPLR 3120. The subpoena shall specify the time (not less than 20 days after service), place and manner of inspection or entry. CPLR 3120. Additionally, items to be inspected should be described with particularity. CPLR 3120. CPLR Section 3122 lists the procedure for compliance with, or objection to, subpoenas received by the party served.

FCA §153 authorizes the court to issue a subpoena or subpoena duces tecum to compel the testimony of a witness or the production of documents. An attorney may issue a subpoena pursuant to CPLR

40 Article 23. A subpoena commands an individual to appear at a certain court on a given day and time to give testimony. A subpoena duces tecum requires the production of materials, such as documents and records.

For example, a subpoena may be used under any of the following circumstances:

 To obtain certified copies of a woman’s medical records evidencing injuries suffered as a result of domestic violence  To compel attendance in court by a reluctant witness, or to provide a cooperating witness, such as a police officer, social worker or hospital personnel, with documentation to justify an absence from work or school  To obtain certified copies of telephone records  To obtain certified copies of police reports  To obtain certified copies of criminal court documents

The subpoena duces tecum may require the production of the certified records by a certain date prior to the court date, at the office of the attorney, or may compel production of the records to the court on the day of the hearing.

A subpoena must be “so-ordered” by the court (signed by a judge), instead of directly issued by the attorney, where it is directed to a municipal agency or where a party seeks the medical records of another person. CPLR §2302 defines circumstances in which the subpoena must be signed by the judge. A subpoena may be brought to the Family Court judge for signature at any time during the day. The judge may sign it while the attorney or her employee waits, or may require that it be retrieved later in the day or the following day. It is advisable to submit the subpoena first thing in the morning when the judge is just taking the bench; the judge usually will be available for signing before she begins calling cases. Another option is to call the judge’s court attorney or clerk and ask when might be a good time to bring the subpoena in for signature.

Note: Certain agencies, such as the police department, will only return subpoenaed records directly to the court’s medical record room, parts division or clerk’s office. Municipal agencies and hospitals often refuse to return documents to the office of an attorney, but rather agree only to produce them to the court. However, if the court signs a subpoena which directs that the records be returned to the attorney’s office, the attorney should point this out to the agency if it refuses to provide the records directly to the attorney.

Under CPLR §2303, a party is required to pay one day’s witness fee upon service of the subpoena, as well as traveling expenses for the witness to the place of attendance (usually the courthouse). Pursuant to CPLR §8001, the witness fee currently is $15.00. Travel expenses are 23 cents per mile for each mile traveled round-trip to the courthouse. Note, however, that there is no mileage fee required for travel wholly within a city. Thus, if your witness is traveling from the Bronx to the Manhattan Family Court, you do not have to provide travel expenses, just the witness fee. A check for the relevant amount should be served along with the subpoena.

Most hospitals and municipal agencies will comply with the subpoena without payment of the fee, though they may bill for the photocopying of the records.

Prior to serving a subpoena upon a hospital or agency, an attorney should determine as specifically as possible who will be responsible for responding to the subpoena so that it can be directed to that person

41 or department. After serving the subpoena, the attorney probably will need to follow up to make sure the records are provided on time.

When requesting documents by subpoena or with a release, it is a good idea to attach Certification and Delegation of Authority forms with a letter requesting the agency/entity to fill out and return the forms when they produce the records to you. By having a proper Certification and Delegation of Authority, the records are admissible in evidence under the business record exception to hearsay. See CPLR §4518. See Her Justice manuals for sample subpoenas and forms.

If your client is served with a subpoena by the respondent you may move to the Family Court for an order quashing or modifying the subpoena. CPLR §2304. You will need to explain the specific harm your client will suffer if she is compelled to comply.

Sanctions may result if a subpoena is ignored and the time limit for compliance is exceeded. For example, failure of a party to answer a judicial subpoena qualifies as contempt of court. CPLR §2308.

Non-judicial subpoenas may be enforced by filing a motion to compel in Family Court. CPLR §2308(b). A court may issue a warrant directing the sheriff to bring a witness before the court. CPLR §2308(b). If the party served with the subpoena continues to ignore the subpoena and motions to compel, they may be committed to jail.

Any person may comply with the subpoena as long as the person is able to identify the subpoenaed material and testify to their origin, purpose and custody. CPLR 2305. Section 2303(a) of the CPLR requires the serving party to serve each party who has appeared in the action with a copy of the subpoena duces tecum. These copies have to be served promptly after service on the witness and before production of the subpoenaed material. To ensure compliance, the Family Court Clerk will request verification. Service of the subpoena must comply with the requirements set forth in CPLR Section 2103. This procedure was adopted to promote fairness in the use of subpoenas and allow parties the opportunity to make timely objections. It is important to note, if one wishes to serve a subpoena upon a department, corporation, state or officer of the state, the serving party needs to make a motion. CPLR 3120(4).

Note: If you are trying to obtain client records to be used at trial, you do not need a subpoena. Instead, send a release signed by your client to the entity along with copies of the Certification and Delegation of Authority forms.

Under federal and state confidentiality laws, you cannot use an attorney or so-ordered subpoena to obtain confidential records such as mental health or drug treatment records. Instead, you must file a an Order to Show Case to request the court’s permission for an order to the entity to produce the records. Often, the entity you are trying to obtain records from may send an attorney to your Order to Show Cause adjourn date in order to oppose your motion. If your motion is granted, the court should grant you an order to serve on the entity to produce the records.

See Her Justice manuals for more information and for sample subpoenas.

42 “HOW TO” GUIDE ON MOTION PRACTICE

There may be circumstances that warrant motion practice, such as when circumstances change after the petition is filed and immediate relief is required. Some types of relief an attorney might want to request by motion after the petition has been filed include: supervised or suspended visitation, exclusive occupancy of the home, payment of expert’s fees, appointment of a Lawyer for Child(ren), temporary child support, temporary custody, permission to amend or modify the petition, dismissal of a petition or cross-petition for legal insufficiency, and to compel compliance with discovery requests. An attorney must present a detailed affidavit from the client to the court as part of this motion, outlining why immediate relief is necessary before trial. Supporting depositions or affidavits from witnesses also are very useful in winning such motions, such as child care providers, child counselors and therapists or teachers familiar with visitation or custody problems. Additionally, an Affirmation by the Attorney should be attached to the motion.

 Step 1: If a judge already is assigned to the case, an attorney should first check with his or her court clerk or law secretary/court attorney to find out the judge’s rules for making a motion, including whether oral argument is required and where to file the papers. As an alternative to a motion, an attorney can request a conference with both parties and the judge. At the conference, the attorney can make an oral application for requested relief. If the next court date is coming up soon and no immediate relief is needed, the attorney can make an oral application for the relief requested at the adjourn date. Sometimes, the court may indicate that it wants a formal written motion. If the judge refuses to hold a conference immediately or if a judge has yet to be assigned to the case, an attorney can make a written motion.

 Step 2: Know the Uniform Rules of the Family Court

The Uniform Rules of the Family Court §205.8 provide that any papers for signature or consideration of the court shall be presented to the clerk of the court, or directly to the judge’s clerk. Motions shall be made returnable on a date set by the court (Uniform Rules §205.11).

As a practical matter, this means that an attorney may not simply choose a return date for a motion, as may be done in other civil practice. Courts usually will permit the filing of a Notice of Motion if the motion is returnable on the return date of the petition. If any other date is sought, however, the motion should be brought by Order to Show Cause. An attorney may speak to a judge’s court attorney or clerk if she has concerns about how to notice the motion.

FCA §154-b provides that any motion to vacate or modify an order of protection shall be made on notice to the non-moving party.

 Step 3: Understanding the Methods for Bringing a Motion Before the Court: In civil litigation, there are two basic methods for bringing a motion before the Court: by Notice of Motion or by Order to Show Cause (see CPLR, §§2211 and 2214). They are summarized briefly as follows:

43 o Notice of Motion A motion is made by “Notice of Motion” where there is already a court date scheduled for the matter, and no immediate relief is necessary prior to the court date. The motion papers include a Notice of Motion, a supporting Affidavit and/or a supporting Attorney’s Affirmation, and any supporting exhibits. The attorney chooses the return date (the date the motion will be heard by the court) which is usually the next scheduled court date. Note, that even if an attorney picks a different return date than the next scheduled court date, the court clerks will usually adjourn the motion to the date on which the matter is already scheduled. If you need a court date before the next scheduled court date for the court to consider the motion, you should consider filing the motion by Order to Show Cause instead. A copy of the Notice of Motion with supporting papers is served upon opposing counsel (or the opposing party, if he appears pro se), usually by regular mail. An Affidavit of Service is completed by the person who did the mailing. If an attorney mails the papers herself, she may complete an “Affirmation of Service” instead of an Affidavit.

The Affidavit or Affirmation of Service is annexed to the original Notice of Motion with supporting papers, which is then filed with the clerk of the court so that it may be placed upon the court’s calendar for the date specified in the Notice of Motion. The attorney does not need to appear to file the Notice of Motion and will not see a judge upon the filing of the Notice of Motion.

This type of motion is used when no immediate relief is necessary. o Order to Show Cause A motion is brought by Order to Show Cause where a party seeks some form of immediate or temporary relief, outside of the regular progress of the case, prior to the return date of the motion. When a motion is brought by Order to Show Cause (“OSC”), an attorney prepares an Order to Show Cause for the judge’s signature to be annexed to the supporting papers. This Order to Show Cause takes the place of the “Notice of Motion.” The supporting papers essentially will be the same as those prepared for a motion on notice, except that the supporting papers should also address the need for the immediate or temporary relief. The OSC also must contain language that no prior request for the relief sought in the OSC has been made.

On the Order to Show Cause (“OSC”), the return date of the motion is left blank and will be filled in by the judge. By signing the OSC, the judge instructs the opposing party to appear and “show cause” why certain relief should not be granted – in other words, to show cause why the movant should not prevail on her motion. The judge will also fill in how and by what date the opposing party needs to be served with the OSC and supporting papers.

An OSC may contain a temporary order that, like a temporary order of protection, provides immediate ex parte relief to a party. In Family Court, an OSC is submitted to a judge through the intake process and the attorney must be present when the Order to Show Cause is filed, in order to appear before the judge and argue as to why the temporary or immediate relief is necessary. An attorney should check with the clerk of the court to find out the procedure 44 for filing an Order to Show Cause prior to filing it because procedures can vary by borough and by judge.

If temporary relief pending a hearing on the motion is not granted, the judge usually still signs the order and provides a return date for the motion, but crosses out the provisions in the Order to Show Cause which provide for temporary relief.

Note: If a judge has not been assigned to a case, call the clerk of the court to determine the proper procedure for filing a Notice of Motion or Order to Show Cause because they vary by borough and courts constantly change procedures.

See Her Justice manuals for more information and for sample motions.

45 COURT APPEARANCES

How do you check-in?

The court will post a master list of all the scheduled hearings in the lobby or on a designated floor. Check the list for the location of your hearing. The list is sorted by party name and docket number.

Once you are at the location of the hearing check-in with the Court Officer in the Part (courtroom) you have been assigned to. When you check-in, it is a good idea to check to see who else has checked-in on your case and where they are located in case they have multiple hearings. This way, you can find opposing counsel and parties on your case prior to being called to determine if the opposing party is represented and to speak to opposing counsel about the case and possible settlements.

What if you have two court appearances on the same date?

Make sure to check into all the parts that your hearings will be in and let the court officers know where you will be if you are not in that part (list all the court parts for the court officer, so they can call you or come get you if they are ready to call your case).

Note: It is very important to let the court officers know where you will be at all times. If you need to step out of the building or waiting room, you should let the court officer know how you reach you if needed.

Where do you sit while waiting?

There is a waiting area where the Court Officers will come to announce your case. The clients need to sit in the waiting room. However, as attorneys, you can sit in the courtroom while waiting for your case to be called. This might move your case along faster because the court officers will see you waiting and want to call your case as soon as possible.

If there is domestic violence in your case, you can also wait with your client in the Safe Horizon office if you need to speak to her or prep her for the case. Make sure to let the court officers know that you are in Safe Horizon’s office.

What do you do while waiting?

It is a good idea to bring other work with you while waiting. You can also use the waiting time for preparation of your client and witnesses as well as settlement discussions with opposing counsel, the Lawyer for Child(ren), and the Court Attorney. Unfortunately, sometimes there is a lot of waiting time in Family Court because the courts are overwhelmed with cases. For future appearances, try to get a time-certain appearance so that you will know when your case will be called.

Settlement Discussions and Case Conferencing

Usually a case will first be conferenced by a Court Attorney, but then can be conferenced by the Judge. The purpose of the conference is to see if the case can be settled; to see what issues cannot be resolved; to see if any issues have risen; make motions; and make oral applications. The conferences are usually with counsel and sometimes with parties. The Court attorney will let the Judge know if the case can be

46 settled, but the client must agree before a settlement is made. Although a settlement is encouraged, do not feel pressured to settle.

Where do you sit/stand when the case is called?

If you are the petitioner, sit on the right of table facing Judge (Judge’s left). If you are the respondent, sit on the left of table facing Judge (Judge’s right). If there are cross-petitions, or if you are not sure where to sit, the court officers will tell you.

Note: It is important that you physically separate the opposing parties. This may mean that you have to place yourself between your client and the opposing party.

Making your appearances

The Uniform Rules of the Family Court Section 205.10 provides that an attorney shall file a Notice of Appearance at or upon the attorney’s first appearance in the court or no later than ten days after appointment or retainer, whichever is sooner. The attorney should serve a copy of the Notice of Appearance on opposing counsel or the pro se litigant and file it with the court with proof of service as soon as possible. At the first court appearance, bring extra copies of your Notice of Appearance with you.

As a practical matter, filing a Notice of Appearance in advance of the court date may result in the Notice of Appearance being lost or misfiled by the clerk. Most attorneys file their Notices of Appearance at the time of their first court appearance. Upon arrival, an attorney should go to the courtroom and provide the court officer or court clerk with her/his Notice of Appearance. An attorney may prepare a Notice of Appearance in advance; however, the clerk or court officer will provide a blank Notice of Appearance to any attorney appearing for the first time on a case.

If you seek to obtain a copy of the court file prior to your first appearance, you should file a Notice of Appearance prior to your first appearance so that you can obtain the court file.

When the case is called on the record, you will be directed to state your appearance for the record. You will appear as in the example below:

“John Smith, Davis Polk and Wardwell, 450 Lexington Ave., New York, NY 10017. Appearing pro bono for Petitioner, Mary Jones.”

Your client will be sworn in and she must swear to tell the truth.

NOTE: If your client’s address is confidential, it is important that her address not appear in any court papers or on the record. She will need to provide an address for service of court papers— which can be a post office box, the attorney’s address or another safe location.

Appearing under Her Justice Student Practice Order

Her Justice has a Student Practice Order from the Appellate Division which allows law students and law graduates to appear on Family Court cases under the supervision of an admitted attorney. If you are a law student or law graduate, you must appear in court with an admitted attorney. The admitted attorney can introduce you to the court and seek permission for you to speak for the client under their 47 supervision pursuant to the Her Justice Student Practice Order. If you are a student or law graduate, you will then state your appearance on the record as appearing under supervision of the admitted attorney pursuant to the Her Justice Practice Order.

The admitted attorney supervisor has the obligation to supervise your in-court and out-of-court work. If needed, you can bring a copy of the Practice Order with you to court. You can get a copy of the order from Her Justice’s legal staff or your pro bono coordinator.

If you have any questions about the Practice Order, please call the legal staff at Her Justice.

First Appearance By Respondent

At the first adjourn date after the petitioner has filed the case, the petitioner must prove that the respondent was served properly. Be prepared to submit an Affidavit of Service to the court to prove proper service. This first court date is often called “return of process,” “ROP,” or the “first appearance” for the respondent.

If the respondent has not been served, you should be prepared to describe service attempts to the court and request additional time to serve or substituted service. It is a good idea to have whoever attempted service sign an Affidavit of Attempted Service that you can present to the court when asking for additional time to serve or alternative service.

If the respondent appears in court, the court will explain why he is in court and let him know that he has the right to seek legal counsel and if he cannot afford an attorney, the court may appoint an attorney to him. The court will ascertain whether the case can be settled and, if not, will adjourn the case for a conference, for respondent to get an attorney, or for a hearing. Usually, on the first appearance a trial or hearing is not expected to take place. It is, however, good practice to be prepared for a hearing in case you need to go to inquest.

WARNING: We have had a few incidents where a specific judge required counsel for the petitioner to immediately start trial at the first appearance with both parties present, by placing the petitioner on the stand. These were cases where the respondent also appeared with counsel on the first date, and due to the rarity of such, the judge was moved to start trial immediately. If this happens, an attorney should immediately object on the record and explain that he/she was just retained and has not had the chance to fully interview the client about all the details of the case, or gather evidence and witnesses. If forced to put the client on the stand anyway, the attorney should preserve the right to recall the client as a witness at the next adjourn date. Usually the judge will only require the petitioner to testify in part at this first appearance, before adjourning the case for a month or two. Still, this can be an unpleasant surprise for a client – so it’s best to prepare your client for this possibility. Since a non-appearance by respondent could necessitate an inquest at this appearance anyway, an attorney should have the client ready to at least give partial testimony to the allegations in her petition at this first return date. It is always best to be prepared for any possibility in Family Court since you cannot predict what will happen at all times.

What if Respondent has been served and he does not appear?

If the respondent does not appear and he has been properly served, you can ask for a default order or proceed to inquest. An inquest is a hearing without the other side present. Sometimes the court might reissue the summons for the respondent to appear on a new court date or issue a warrant for his arrest. If possible, you should try to get a default order or inquest so the case can be concluded. 48

What if your client is the respondent and the petitioner does not appear?

If your client is the respondent and the petitioner does not appear, you should ask for his petition to be dismissed. If your client has filed cross-petitions of her own, you should seek to proceed to inquest or default.

Lunch Recess

The courts are generally closed from 1 PM to 2:30 PM for lunch. If your case is not called before lunch, you will be instructed on what time to return to the court part.

See Her Justice manuals for more information on hearings and court appearances.

49 AFTER THE HEARING

Settlements

If the parties agree to a settlement before the end of trial, a consent order or stipulation can be prepared by either party’s attorney or the Lawyer for Child(ren), signed by all parties, and submitted to the court for the judge’s signature. Once the judge signs the agreement, it becomes “so-ordered” and, in effect, becomes a court order. All parties are then given a copy of the order. It is a good idea to come into court with a proposed Stipulation of Settlement already drafted. You can make handwritten changes to the Stipulation in court in order to modify the terms so all parties can agree and sign.

It is very important to know your client’s position before entering into settlement discussions. It is also important to not agree to anything without speaking to your client first.

The judge usually requires all parties to be present in the courtroom to present the stipulation for the judge’s signature so that he/she can make sure on the record that all parties are in agreement with its terms and understand their rights.

After the stipulation becomes an order of the court, either side may do a “Notice of Entry,” and serve it along with a copy of the Order upon the other side. An Affidavit of Service must be completed and filed with the court, with the Notice of Entry and Order attached. The Order is not considered entered and the time by which an appeal must be filed does not start to run until this step has been taken.

Child Support Settlements

An agreement about child support must be approved by the court, after which it becomes binding as if it is an order of the court. Family Court Act '413(1)(h), provides that a settlement or agreement must expressly state:

! The amount of the basic child support obligation; AND ! The amount of each parent=s pro rata share of that obligation; AND ! A statement that it is the presumptively correct amount of child support; AND ! If there is a deviation from the stated amount of the basic child support obligation, the reasons why the agreement does not provide for that amount

Any agreement that does not comply with the above requirements is void. FCA '413(1)(h).

For more detailed information on Child and Spousal Support cases and for sample documents, please see Her Justice’s manual entitled “Litigating Child and Spousal Support Cases in Family Court.”

Spousal Support Settlements

Spousal support settlements should include the amount of support to be paid, when payments are to commence, a calculation of any arrears, and how support is to be paid. There should be no end date or expiration for a final spousal support order.

50 For more detailed information on Child and Spousal Support cases and for sample documents, please see Her Justice’s manual entitled “Litigating Child and Spousal Support Cases in Family Court.”

Custody Settlements

Custody and Visitation settlements should be as specific as possible to avoid ambiguity. The discussions and settlements should be specific as to pick-up and drop-off times and locations, including who will be in charge of transportation; vacation schedules and costs paid; what happens when a party is late, including rescheduling visitation and how long to wait; and the rules governing cancellation, including how much advance notice is needed.

For more detailed information on Custody and Visitation settlements and for sample documents, please see Her Justice’s manual entitled “Litigating Custody and Visitation Matters in Family Court.”

The Dangers of Mutual Orders of Protection

If the respondent has filed a petition or cross-petition for an order of protection against the petitioner, it may be suggested that the parties settle for “mutual” orders of protection – that is, each party is issued an order of protection against the other. Remember that if the respondent has not filed a petition for such an order, he cannot be granted his own protective order by the court, even if the woman consents as part of a settlement.

Unless there are special circumstances, a woman should NOT agree to mutual orders of protection. Because the police are mandated to arrest a person who is alleged to have violated an order of protection, if a woman agrees to have an order issued against her, she creates the opportunity for the abuser to have her arrested simply by alleging that she violated the order. Abusers often use orders of protection they have secured against their victims to further harass them – namely, by making up false charges and calling the police to have their victims arrested.

If a woman believes that she will not prevail on her petition or that the abuser will prevail on his, under most circumstances a preferable alternative to mutual orders of protection is mutual withdrawal of both parties’ petitions.

Consent Order of Protection, Without an Admission

A common settlement suggestion made by the court, where a cross-petition has not been filed by the respondent, is for the abuser to consent to the issuance of a final order of protection for the woman without any admission of wrongdoing on his part. Although it may be upsetting for the woman and her attorney to permit the abuser to continue to deny his acts of domestic violence, under many circumstances this in an acceptable settlement because it guarantees a woman a final order without the uncertainty or stress of a hearing in court. While respondent may feel reassured that he has not made an admission of wrongdoing, the woman is assured that the relief obtained is the same as if the court had made a finding that a family offense occurred.

Pursuant to Domestic Relations Law §240, which refers to Article 8 of the FCA, where there is a finding of domestic violence made by a preponderance of the evidence, a judge is required to consider the domestic violence in determining custody or visitation issues. A consent order that does not include an admission will not trigger the mandatory consideration of domestic violence by the judge hearing any related custody or visitation issues, although a woman may still raise those issues in the custody or visitation case and seek to prove them in the context of those cases. 51

Consent Order of Protection, With an Admission

A respondent may agree to admit to one or more of the lesser family offenses in the petition, rather than go to trial, in order to avoid the possibility of a finding of a more serious charge against him or to avoid the expense of hiring an attorney to appear at a hearing.

Duration of Consent Order of Protection

Pursuant to FCA §§842 and 827, a woman may be entitled to a five-year final order of protection upon a finding of aggravating circumstances stated on the record. Some judges will permit the entry of a five-year order of protection upon consent, rather than upon a judicial finding of aggravating circumstances. Other judges interpret the law as permitting the entry of five-year orders of protection only upon a judicial finding and not upon consent. Insofar as the interpretation of the law is unsettled, an attorney should always argue vigorously for the entry of a five-year order if the respondent consents and, if the court refuses to make an order of such duration upon consent and there are clear aggravating circumstances, the attorney should consider whether a trial may be more appropriate than settlement to secure the maximum relief for the petitioner.

For more detailed information on Order of Protection settlements and for sample documents, please see Her Justice’s Order of Protection manual entitled “Representing Victims of Domestic Violence in Family Offense Proceedings.”

Court’s Order

If the case proceeds to trial, the Judge will issue a final Order after she has had a chance to consider all evidence presented at trial, as well as any Memoranda of Law or Trial Briefs submitted to the court. Sometimes the Judge will make a decision directly after the trial and an order will be issued. Some judges will mail out copies of the final order to the parties or their attorneys, if they are represented. Other judges will rely upon the party/attorney to call the court to find out whether the Order is ready. If a case is particularly complex, the Court might want written (instead of oral) summations and will adjourn the case for a decision.

It is important for attorneys to make sure to get a copy of the decision as soon as possible and to look at the order to make sure it contains the terms agreed upon by the parties or ordered by the court--they go to the CAP Unit or CAPU to do this. If there are any mistakes in any order (temporary or final), attorneys can go to the clerk immediately to request a change--otherwise, they might have to do a motion to restore the case to the calendar and modify the order.

If the Order is favorable to your client, you should immediately prepare and serve the Notice of Entry (with Order attached) upon the other side, and file such (with Affidavit of Service attached) with the court.

See Her Justice manuals for more detailed information and for sample orders.

Modification

If there is a change in circumstances that would affect an Order, you should file a modification petition and demonstrate how the changed circumstances affect the final order. A modification hearing will be held to determine whether a change to the final order is merited. 52

See Her Justice manuals for more detailed information and for sample documents.

Violations

If there has been a violation of an order (temporary or final), you can file a violation petition or a motion for a violation (contempt of court), or a petition or motion for enforcement of an order. The court will hold a hearing to determine if there has been a violation and any penalties or changes in orders that might be appropriate pursuant to FCA Articles 4,6, and 8. See the Her Justice manuals for further information.

See Her Justice manuals for more detailed information and for sample documents.

Appeal

It is in your client’s interest to start the clock running for an appeal, so that the other side has less time to take an appeal “as of right.” An appeal must be taken within thirty (30) days after entry and service of a Notice of Entry of the Order. Thus, if there has been no service of the Notice of Entry and Order, the thirty days never begins to run. Appeals from Family Court custody and order of protection cases are filed in the Appellate Division. See FCA Article 11 for more information regarding appeals.

If you get a Child or Spousal Support decision from the Support Magistrate that you wish to appeal, you file an Objection within thirty (30) days of the date the order was received in court or personally served, or if the order was received by mail, within thirty-five (35) days of the mailing of the order. Objections are reviewed by a Family Court Judge. If you do not prevail on your objections, appeal can be taken to the Appellate Division.

53 HOW TO OBTAIN COPIES OF COURT FILES

The Record Room is where you can review and make copies of documents in the client’s files. In order to obtain access to the file an attorney must make a Notice of Appearance stating that s/he is the attorney on the case or obtain a release & authorization from the client authorizing the attorney to look at and copy the file. It is very important to bring identification and change for the photocopy machines.

If you wish to have someone from your managing clerk’s office make copies of the court file you must: 1) make sure a Notice of Appearance is on file or give the Notice of Appearance to the clerk to file and 2) write a letter specifically authorizing the managing clerk by name to look at and copy the file.

Note, if your court date is in the next day or two, the court file could be in transit to the court part.

On the court date, you can ask a court officer if you can look at the file while waiting. Sometimes there are extra copies of court papers in the file. You can ask the court officer if you can have the extra copies or if you can get copies of the court file. They may make the copies for you or instruct you to get copies after the case is called.

Judges’ Notes or Endorsement Sheets (F-99)

The Judge (or Court-Attorney Referee or Support Magistrate) makes notes during each court appearance on lined legal sized paper (usually yellow) and this is attached to the back of the court file (not the outside jacket of the file). The court will note who was present in court, what happened in court, and what orders were made. Reading the endorsement sheets can give you lots of good information about prior proceedings and hearings. Generally, clerks will not allow you to make a photocopy of the endorsement sheets, but you can make notes from them.

54 HOW TO OBTAIN MINUTES

Family Court Generally

 Transcripts, often referred to as “minutes”. All testimony is recorded by either a court reporter or an electronic recording device. If you do not know which manner was used, contact the Family Court. There is a per page fee for all transcripts. The fee may change based upon the transcription service or time frame for completion of your order. Expedited service is available at a higher fee. Transcripts and/or minutes are different than Court Orders or a Clerk’s Certificate of Disposition for which the court does not charge a fee.

 You must be a party to the action or an attorney of record in order to obtain minutes of the proceeding. In order to obtain the minutes you need to provide the court with the following:

Your name, address and phone number Names of Petitioner and Respondent Docket number of the case The name of the Judge, Support Magistrate or Referee The date(s) of your court proceedings(s) The court part in which the case was heard

 If you do not have this information, contact the Family Court where your case was recorded.

 For Requests for Transcripts Prepared by Transcription Services: o If your case was recorded by an electronic recording device, you will need to consult the roster of Transcription Services, go to: (http://www.nycourts.gov/howdoi/See_Atta.pdf) After you choose which Transcription Service you wish to use, complete the Request for Transcript Form and return by mail or in person, see: http://www.nycourts.gov/courts/nyc/family/ereqtransER.pdf

o You must provide the court with a current photocopy of a government issued photo ID. If you are unable to provide a current government issued photo ID, you must return the request in person.

 For Request for Transcripts Prepared by Family Court Reporters: o Contact the Court Report’s Office in the County in which the hearing was held. o Complete the Request for Transcript Form and return by mail or in person, go to: http://www.nycourts.gov/courts/nyc/family/ereqtransR.pdf

o You must provide the court with a current photocopy of a government issued photo ID. If you are unable to provide a current government issued photo ID, you must return the request in person.

55 New York City Family Court Reporters’ Office Information

Bronx 1-718-618-2081 Brooklyn 1-347-401-9932 New York 1-646-386-5070 Queens 1-718-298-0156 Richmond 1-718-390-5372 CSET 1-646-386-5300

 Request for Court Reporter

o If you have a hearing in which you intend to present expert witnesses or complicated testimony, it is a good idea to request a court reporter to be scheduled for your hearings in advance. Speak to the judge, clerk or court attorney regarding how to arrange this in advance.

56 COURT ETIQUETTE

Judges can seem difficult and even hostile towards attorneys. In Family Court especially, judges tend to be overworked, underpaid and often burnt-out. Their caseloads are overwhelmingly large and prevent them from devoting significant time to each case. As a result, they often appear rushed and annoyed by your presence in court, especially if you are asking for relief that will slow the time it takes for the case to conclude. However, many judges will appreciate the fact that you are representing your client pro bono.

There are several things you can do as an attorney to make the judge more favorably disposed towards you, and therefore, your client and her case. Most of them involve showing respect for the judge and maintaining a certain level of civility. Some suggestions:

 Always stand when the judge enters or leaves the courtroom. Make sure your client knows to rise as well.

 Always stand when you are speaking to the judge in court, unless he or she specifically tells you it is appropriate to remain seated for discussions.

 Be courteous; make sure to address the judge at all times as “Your Honor.” Use language such as “If I may….” You should address Support Magistrates and Court-Attorney Referees as “your honor” as well.

 Be prepared and on time.

 Always be honest in any legal or factual representation you make to the court.

 If you promise you will do something (e.g., produce some documents at the next appearance), make sure you do it.

 Stand when you are making an objection. If asked, be prepared to tell court the grounds of your objection.

 Direct your remarks to the judge, not opposing counsel, even when you are making an objection.

 Never appear visibly angry at or scornful of the judge or his/her rulings. If you do not agree with a ruling or comment by the judge, state this on the record in a calm, controlled voice. Do not lose your temper with the judge, the other attorney, the Lawyer for Child(ren), or the opposing party, regardless of how outrageous their statements are.

 Stand when you are questioning witnesses but be mindful that some courts are small and you may not be able to.

 Do not threaten the judge with an appeal.

 Do not continue arguing your point after the judge has made a final ruling. If you have additional proof, you may offer that to the judge instead.

57  Always be courteous towards opposing counsel or the pro se opposing party in front of the judge. However, do not allow opposing counsel to be unprofessional towards you.

 Do not take adverse rulings personally.

 Do not take a judge’s manner personally. Warn your client of this as well. Judges often yell at attorneys and litigants in the course of proceedings. Forewarn your client and explain to her this often is because the judge is having a bad day or is overworked.

58 FREQUENTLY SUBPOENAED ENTITIES

 Police Records New York Police Department Document Production Unit, Room 110-C One Police Plaza New York, New York 10038 Attn: Police Commissioner William J. Bratton 212-577-8477/646-610-5323

 Administration for Children’s Services (ACS) Legal Department 150 William Street, 18th Floor New York, NY 10038 Attn: Gladys Carrion

 Corrections RAP Sheets New York State Division of Criminal Justice Service Executive Park Tower Stuyvesant Plaza Albany, New York 12203 Attn: Dora B. Schriro

 Human Resources Administration (HRA) 180 Water Street 17th Floor Office of Legal Affairs New York, NY 10038

 New York City Department of Education (formerly known as the Board of Education) Jenny Soto 51 Chambers St. Rm. 213 New York, NY 10007 (212) 374-6631

 Credit Agencies

There are four main agencies: Equifax, Experian, Innovis, and Transunion. Experian is the only agency that does not accept service by fax. You need a so-Ordered Subpoena.

TransUnion Cindy Hennessy 555 W. Adams Chicago, IL 60661 FAX: 312-466-8707

59 Innovis Data Solutions Attn: Lynn Orsak, Head of Consumer Relations 250 East Broad Street Columbus, OH. 43215 Tel #: 1-800-540-2505

Equifax Attn: John J. Kelley III, Corporate Vice President, Chief Legal Officer P.O. Box 740241 Atlanta, GA 30374 Fax: 678-795-7954 Tel: 678-795-7972

Experian Attn: Rick Hass P.O. Box 4500 Allen, TX 75013

60

Tips for Your Day in Court

Don’t Miss Your Court Date

Court is not an appointment that should be missed since a rescheduled court date could be weeks or months away. Rescheduling must be done with notice to all parties and may require an application to the court (letter via fax). Refer to Rules of the Court as to which other court appearances take precedence if you are involved in another court proceeding on the same date and time as your scheduled appearance. The court may be in receipt of your fax, but may not tell you in advance whether it has been granted. Without confirmation of the same, someone from the firm should appear in court.

If your client misses their court date (including coming to court after the case is called on the calendar), there could be serious consequences – the case could be dismissed or the court could enter a decision in favor of the adverse party. If your client has proof of an emergency that has arisen, they may be able to seek to vacate an adverse decision, by filing a motion with the court immediately or as soon thereafter following the missed appearance.

Be sure to add the correct return date to your calendar. Check the court website https://iapps.courts.state.ny.us/webcivil/ecourtsMain using the client file or index number to see what the matter is scheduled for. Use e-courts for automated updates on civil and criminal proceedings (there may be one involving the adverse party with an issue relevant to your case). Ask your client to bring a calendar and to note in advance any information about appointments or holidays/vacation plans that they or their children may have so that you avoid conflicts and a need for rescheduling of all parties involved.

Get to Court Early

You should allow plenty of time to travel. Consider the traffic, weather, parking, frequency of public transportation, and extra time needed to get through security at the courthouse. Being late can make your client anxious and unable to do his or her best, or you may be unable to address any last minute issues that may arise.

Ensure that your client knows how to get to court, the exact date and time and place to meet you at least 30 minutes before court especially if they are using the child care center in the family court. Make sure that they have the correct floor, case number and information regarding the person hearing their case (Judge/Referee/Magistrate/JHO) for all of the cases that they may have pending. If more than one case is pending in different parts, be sure to check into both parts.

Remember that court may be an all-day affair. Bring something else to work on and advise your client to do the same.

Childcare

61 The client should make arrangements for someone to take care of her children during her court appearance. While family court (not all courts) has free childcare where she can leave her children while she is in the courtroom, they do not accept infants and children who are not potty trained. Also, you will be asked to pick up the children a half hour prior to lunch and the closing of the courthouse.

Courtroom Etiquette

Instruct your client that certain behaviors are not allowed because they are noisy, distracting or disrespectful. Turn off cell phones and do not chew gum, eat, sleep, wear a hat (unless for religious purposes), listen to music, talk on a cell phone, take pictures or carry a weapon in the courtroom. You should enter and leave the courtroom quietly, so you do not disturb others.

The courtroom calendar is usually posted outside the courtroom or a court officer will be in and out of the courtroom checking parties in. Look for your case and write down the calendar number. Tell the clerk or officer that you are there with your client. Your client may have to check in for herself. Let the court officer know if you need an interpreter. If the language is uncommon, arrange this beforehand. Cases with translators will generally only translate inside the courtroom and if time permits, outside the courtroom for a limited period of time.

Instruct your client to treat others, the adversary and their attorney respectfully – no yelling or cursing or cutting someone off when they are speaking. You and your client should speak clearly and slowly. If you or your client mumble, speak too quickly, too softly, or answer by shaking or nodding your head, the record will not be accurate. Ensure that you let the court know if you did not hear a response from someone. Your words are being recorded, either by tape recording or a court reporter. Note which one is being used in the event you need to order a transcript. Ask for a card from the court reporter if you anticipate needing to get a copy of the transcript.

If your client is afraid or being disparaged by the opposing party, notify the court officer and ask the client if she wishes to wait in Safe Horizon (in Family Court only) or another part of the courthouse away from the opposing party. Ask the court officer to allow the client time to leave the courtroom, in order to ensure her safety.

Some cases will permit a time for conferencing with other court personnel (court attorney) before meeting with the Judge. Use your time waiting for the case to be called to speak with opposing party (for introductions/inquiry into settlement – but not advice) or their counsel, and to prep your client.

Be Prepared

Bring your files. You should have a file with copies of all of your client’s court papers and papers from the other side. Bring a notepad and pens for yourself and provide one to your client for note taking while in the courtroom, so they can readily jot down information that they find important for you to raise rather than interrupting you or the court. Bring loose change in case you need to use the copy machine to copy any last minute documents your client brings. Note, originals submitted to the court are not likely to be returned without much hassle once submitted.

Visit the courthouse and courtroom ahead of time, if possible, so you are comfortable with the location and observe how things work. You can sit in in most parts, room permitting, to get a sense of the person hearing your case. Makes notes of the questions you want to ask. Practice your presentation with colleagues or your mentor. 62

Bring Your Evidence

If you are supposed to bring evidence and witnesses to the courtroom, anticipate what you need to bring to court. If you have documents or pictures, bring the original item and two copies. Ensure that you have documents that can properly be authenticated and entered into evidence or bring witnesses, as appropriate. Ask your client and witnesses to arrive early and instruct them to dress appropriately, being as specific as you need to be.

On the Record

Listen for your case to be called. You should stand when you speak to the person hearing the case and address him or her as “Your Honor.” Do so regardless of whether he or she is a Referee, Support Magistrate, Judicial Hearing Officer or Judge. Indicate his or her exact title in your court notes.

State your name and firm on the record as pro bono counsel. Determine who will speak if there is more than one attorney appearing. Sign all notices of appearance with your name. If there is a change in counsel, be sure to fill in a notice of appearance with your information. Note, students should appear under a practice order with the name of the supervising attorney on the record.

If you are told to submit something to the court, make sure you know exactly what has been requested. Again, do not be reluctant to ask for clarification. If the court instructs your client to share in any litigation fees, remind the court that the client is of limited income and provide proof, if necessary. Do not agree to a settlement without your client’s full consent.

Have a checklist of the issues/items that need to be addressed before the court. Run through your list to ensure that you have made all of your points and requested all relief necessary.

Ask the Judge for clarification if you do not understand something or are confused about what they ruled on or may have directed your client to do. Do not argue with the court, but be firm and clear in your position. Make objections on rulings that you do not agree with to preserve your record on appeal.

Before you Leave Court

Before you leave court, make sure that you understood what happened and what is going to happen next.

If the Judge made a decision or you settled the case, make sure you have a copy of the order or stipulation. If you are instructed to go to another location to wait, let the court personnel know where you just came from and that you are waiting to ensure that the order is provided to the client and that it is correct as ordered by the Judge.

Be sure to review the orders before you leave the courthouse. Time spent to ensure that an order is as directed or as all parties agreed is critical. Court preprinted generated orders are often incorrect, directing the same details as in prior orders although changes may have been made. Ensure that your client understands what they have agreed to. Do not agree to settle a case where your client is not giving you such direction. The client should make the ultimate decision with your guidance and explanation of the law as to why something cannot be settled or put forth in the way they want. 63

After Court

Send a substantive email summary of what happened in the court appearance and the next court date to your her Justice mentor. Include information regarding the court process with names of all the parties in attendance and impression of court on the case, opposing counsel and lawyer for child, etc.

If the matter has settled (after having discussions with your mentor about that possibility in advance), email a copy of the order to your mentor.

If the matter has not settled, schedule a call to discuss the matter more in depth with your mentor prior to your next court appearance and with sufficient time to be able to prepare for the next appearance. Allot enough time for your mentor to review papers and to provide you with feedback.

64 USEFUL WEBSITES http://www.courts.state.ny.us New York State Court System Home Page. You can http://www.nycourts.gov/home.htm download official court forms here. https://iapps.courts.state.ny.us/webcivil/ecourts E-courts is a website of the Unified Court System where you Main can find out the next court date, what the case is scheduled for, name of Judge and opposing party information, if any. http://www.probono.net Helpful online pro bono attorney resource center. http://www.probono.net/ny/family/ Probono.net Family Justice Home Page - good source for sample documents. http://www.lawhelp.org Lawhelp contains information to help people with low to moderate income find legal resources and also support for lawyers and advocates who provide free legal services. http://www.opdv.state.ny.us New York State Office for the Prevention of Domestic Violence website. http://www.ocfs.state.ny.us New York State of Office of Children and Family Services Website. http://www.nyc.gov New York City government website. http://www.nyc.gov/html/ocdv/html/home/hom Mayor’s Office to Combat Domestic Violence website. e.shtml http://www.ovs.ny.gov Services for Victims.

http://www.nyc.gov/html/hra/html/services/chil Human Resources Administration website for child support d.shtml information. https://newyorkchildsupport.com/ New York State Department of Child Support Enforcement website. Information regarding child support enforcement services. If client has an account number and password, information can be obtained regarding payments and arrears. http://www.nysba.org/CustomTemplates/Secon New York State Bar Association Public Resources website. daryStandard.aspx?id=42808 http://www.bop.gov/ inmateloc/ Federal prison inmate look-up.

http://www.corrections.com/ Corrections Connection—links to all States’ corrections departments and inmate look-ups and to federal corrections links http://nysdoccslookup.doccs.ny.gov New York State inmate look-up. See alsoVINE (Victim Information and Notification https://www.vinelink.com/vinelink/siteInfoActi Everyday) - information for crime victims regarding release on.do?siteId=33004 from prison of perpetrators. Can also be accessed by phone at 1 888 VINE 4 NY (1-888-846-3469). http://a073-ils- New York City inmate look-up. web.nyc.gov/inmatelookup/pages/common/find

65 .jsf http://travel.state.gov/content/childabduction/en State Department child abduction website - for referrals when glish.html a child has been removed from the US, also contains information regarding prevention of international child abduction. http://www1.nyc.gov/nyc- List of New York City government resources. resources/agencies.page#filter-list-col http://www1.nyc.gov/nyc- resources/categories/civic-services/general- information/index.page

66 GLOSSARY OF FAMILY COURT TERMS

Acknowledgment of Paternity - A voluntary written statement made by the mother and biological father in which they admit that the man is the father of the child. A properly executed statement has the same legal effect as a court order.

Adjournment In Contemplation of Dismissal (ACD) - Adjournment of a proceeding, for a specified period of time, usually six months. If the conditions of ACD are met, then the petition may be dismissed in the furtherance of justice.

Adjournment - The rescheduling of a proceeding or a court case until a specified future date.

Administration for Children’s Services (ACS)- A New York City agency charged with investigating allegations of child abuse/neglect, encouraging family stability and when necessary, the placing of children in foster care and/or adoption.

Adoption - Legal proceeding whereby a person or persons take a child or other person as their own child and thereby acquires the rights and incurs the responsibilities of a parent.

Affiant - Person who prepares and signs an affidavit.

Affidavit - Written statement made under oath.

Allocution - When the court advises a party of all of his or her rights, charges, as well as possible outcomes of a matter.

Amicus Curiae (“Friend of the Court”) - A person who is not a party to an action but is permitted by the court to present his/her views.

Appeal - A proceeding to have a case examined by an appropriate higher court to see if a lower court’s decision was made correctly according to law. Appeals to Family Court proceedings are heard in Appellate Division of the Supreme Court.

Appearance - The participation in the proceedings by a party in an action, either in person, by electronic means or through an attorney.

Appellant - The party who takes an appeal to a higher court.

Appellee - The party against whom an appeal is taken.

A&R statement - An accounts and records statement made by the Support Collection Unit (SCU) detailing the payments made and money owed under an order of support.

Archives - A secure facility where old records and files are stored for safekeeping.

67 Arrears - In child/spousal support proceedings monies owed as a result of the respondent’s failure to make payments in accordance with a court order.

ASFA - Adoption and Safe Families Act of 1997 - Federal Law that established national goals and requirements for children in the child welfare system’s safety, permanency and well-being.

Assigned Counsel - See 18B Attorney.

Assignment Judge - The Judge that oversees the courtroom in which new cases first appear on a court calendar for service, allocution, adjournments, assignment of counsel and/or issuance of temporary orders.

Assignment Part - The courtroom in which new cases first appear on a court calendar for service, allocution, adjournments, assignment of counsel and/or issuance of temporary orders.

Attorney of Record - Attorney whose name appears in the permanent records or files of a case.

Bench Conference - A meeting between the attorneys and the judge at the judge’s bench to discuss an issue in the case or an aspect of the proceedings. It may or may not be part of the official record.

Calendar - A listing of a court’s scheduled cases for a specific date.

Conferencing – Discussions with the Judge’s Court Attorney or the Judge to determine if the case can be settled and what issues are outstanding.

Control Date – A court date to check on the progress/status of a case; distinguished from a hearing or trial date.

Court Action Processing Unit (CAP Unit) – Unit in the court where all orders, temporary and final, are processed. After a judge issues an order, litigants are instructed to receive copies of the order from CAPU. Attorneys need to make sure to get copies of all orders here and ensure that they are written as directed by the Judge.

Court Appointed Special Advocates (CASA) - A New York City agency of non- attorneys who work in aid of children in foster care.

Court Attorney or Law Secretary – The Judge’s assistant whose responsibilities include the managing of the court and conferencing cases.

Caseworker - A person assigned to assist families and, if a proceeding is instituted, to testify about those efforts. Caseworkers may work for an agency.

Certified Copy - Copy of a document signed and certified as a true copy by the officer, usually the Clerk of Court, having custody of the original or by other authorized person.

68 Change of Venue - The removal of a proceeding begun in one county or district to another county or district for trial.

Child Abuse (NA Petition) - Where parent or person legally responsible for the care or custody of a child (less than 18 years of age) is responsible for such child and inflicts or allows physical injury or a sex offense to be inflicted upon such child, as defined in the penal law.

Child Neglect (NN Petition)- Where parent or person legally responsible for the care or custody of a child (less than 18 years of age) is responsible for such child’s lack of proper care, including those where the child suffers psychological or physical damage for any reason.

Child Protective Agency - An agency authorized by state law to protect the well- being of children. In NYC that agency is the Administration for Children’s Services (ACS).

Change in Circumstances (CIC) - Term often used as a basis for modifying a court order.

Commissioner of Juvenile Justice (CJJ) - See Department of Juvenile Justice (DJJ)

Court Liaison Officer (CLO) - Probation officer assigned to the court. This term is sometimes used to describe Administration of Children Service case workers assigned to the court or an individual courtroom.

Conformed Copy - A copy of a document with written confirmation that is an exact duplicate of the original. Also see Certified Copy.

Consent to Marry (M Petition) - The marriage of a minor, who is at least 14 years of age and less than 16 years of age, must have the consent of the court.

Contempt of Court - An act or omission tending to obstruct or interfere with the orderly administration of justice or to impair the dignity of the Court or respect for its authority.

Corporation Counsel (Presentment Agency) - A New York City agency which presents the case in support of a petition in a juvenile delinquency or designated felony case and which represents petitioners in Uniform Interstate Family Support Act (UIFSA) cases.

Court Attorney Referee - Quasi - Judicial officer empowered to hear and determine proceedings in Family Court upon referral by a judge and consent of the parties. In cases where consent is not given, Court Attorney Referees, upon referral by a judge, are empowered to hear and report.

Court Ordered Investigation (COI) – The court will order ACS to investigate the parent or guardian to assess the child(ren)’s safety and home environment. See also I & R.

69 Child Support Enforcement Term of the Family Court (CSET) - A special term within the New York City Family Court located in New York County which handles child support including, the establishment and enforcement, of child support orders and paternity establishment, when the child requiring support receives public assistance.

Custodial Parent - The parent who takes care of a child on a daily basis and has physical custody of the child.

Custody (V Petition) - Petition seeking to obtain an order granting custody of a child. The same petition type is to be used to obtain visitation with a child by a non- custodial parent.

Decline to Prosecute - Failure to follow through with a legal proceeding (i.e. failure to cooperate with the district attorney’s office)

Default - A default occurs when a party fails to plead or otherwise defend within the time allowed or fails to appear at a court appearance.

De Novo - From the beginning; a new trial.

Department of Juvenile Justice (DJJ) - A New York City agency responsible for the Non-Secure (NSD) and Secure detention of Juvenile Delinquents whose cases are pending before the Family Court or awaiting transfers to other facilities.

Deposition - Sworn written testimony of a witness usually made outside of the courtroom.

Designated Felony Acts (E Petition) - Certain serious violent-act crimes allegedly committed by a 13, 14 or 15 year-old.

Dismissed - The termination of a proceeding for a procedurally prescribed reason.

Dismissed With Prejudice - Action dismissed, after hearing, on the merits and may not be renewed for the same cause of action. Cases dismissed with prejudice may be appealed.

Dismissed Without Prejudice (DWOP) - Action dismissed, with or without a hearing. Cases dismissed without prejudice may be re-instituted or re-filed.

Disposition - The court’s final decision or resolution of the relief requested on the current petition.

District Attorney - An attorney deputized as chief prosecutor whose official duty is to conduct criminal proceedings on behalf of the people against person accused of committing criminal offenses.

Docket Number - Numbers sequentially assigned to new cases filed in the court used to identify each case.

70 Domestic Incident Report (DIR) – The police report taken at the scene of the alleged incident or at the police precinct. The petitioner will have a duplicate (usually pink) with a statement by the officer and also a statement which they wrote out. The statement may be written in the person’s native language.

Domicile - A person’s primary or permanent residence.

Department of Social Services - (DSS) - See Human Resources Administration.

Exploration of Placement (EOP) - A pre-dispositional directive by the Court to the Probation Department in Juvenile Delinquency and PINS cases to find a suitable place where a child can be placed. et al - An abbreviation of et alia meaning “and others.”

Ex Parte - An application to the court made without notice to other parties; an application of only one party.

Expunge - The authorized act of removing and destroying information, in files, computers or other depositories.

Extra Judicial Surrender - A written surrender of a child by a parent which is not executed and acknowledged before a judge, but executed before witnesses from an authorized agency.

Fact-Finding Hearing - The hearing in Family Court where it will be decided if the charges are proven.

Family Court Legal Services - Office in the Administration of Children Services which provides legal services on behalf of cases brought by the Commissioner of Social Services

Family Offense (O Petition) - A proceeding instituted in the Family Court alleging that a petitioner who is related to the respondent by blood or marriage (including former marriages) or who have a child in common has been hurt, threatened, harassed or stalked by the respondent.

Family Court Act (FCA) – Laws that govern the Family court

Family Treatment Court (FTC) - A special program designed to help respondents and their children get back together and stay together. This program is designed to service individuals who have a neglect case against them with alcohol or substance abuse allegations.

FET (Full Evaluation and Testing) - Court ordered psychological and or psychiatric examination. (Forensic Report)

Foster Care - Care provided by an authorized child care agency to a child who has been removed from his/her home by court order or voluntarily by a parent.

Genetic Marker Test - Order by the Court which requires an alleged father, mother and child to submit to certain medical testing to determine parentage of a child born

71 out of wedlock. Any result of 98% or more probability of paternity is sufficient proof of paternity.

Guardian - In the New York City Family Court, person to whom letters of guardianship have been issued for minor person (under the age of 18 years).

Guardian Ad Litem (GAL) - Person appointed by a court to represent a minor or incompetent for purpose of litigation; person does not act as an attorney.

Guardianship (G petition) - Control or manage of the person or property, or both, of another who is incapable of acting for himself/herself. A guardianship proceeding in the Family Court only deals with the guardianship of the person, not the person’s property. Habeas Corpus - “You have the body,” the name given a variety of writs whose object is to bring a person before a court or judge.

Human Resources Administration (HRA) - HRA/DSS is New York City Agency that oversees NYC’s welfare reform initiatives, programs and projects.

Income or Payroll Deduction Order (IDO or PDO) - An order directing that the payor’s employer garnish the so ordered child support obligation, including arrears and forward directly to the payee orders without support enforcement services.

Income Execution Order (IEO or IEX) - An administrative order by the Support Collection Unit (SCU) directing that the payor’s employer deduct the so ordered child support obligation, including arrears from person’s paycheck on orders payable thru SCU.

Imputing Income - This occurs in support proceedings when the parent is unemployed or underemployed (not working a full workweek or working lower than usual paying job) and the court calculates the parent’s gross income based upon past earnings or ability.

Incapacitated Person - Any person who, for any cause, is incapable of adequately protecting his/her rights, although not judicially declared an incompetent.

Income Withholding - Taking of money pursuant to court order or by SCU without court order from the non-custodial parents’ paycheck to pay his or her child support.

Inquest - A proceeding in the Family Court where the respondent, after having been provided due notice, fails to appear, and the petitioner alone introduces testimony.

Intake - First court proceeding in Family Court where the petition is read and charges/demands explained.

Integrated Domestic Violence (IDV) Court – A court in which one Judge presides over overlapping custody and visitation, family offense and criminal cases involving the same parties.

I&R - Investigation and Report - A court ordered report requesting the Probation Department or Administration of Children’s service to investigate the parties of case and prepare a written report for the adjourn date. The investigation usually includes interviews with the parties and/or children and possibly a home visit. This report may

72 also be called a court ordered investigation (COI).

Juvenile Rights Division (JRD) - An office of the Legal Aid Society which provides legal representation (Lawyer for Child(ren)s) to children in Family Court cases.

Judgment - Decision or determination of a court.

Judicial Surrender (AS petition) - A surrender of a child to an authorized agency for the purpose of adoption which is executed and acknowledged before a judge of the Family Court or a Surrogate in this state.

Jurisdiction - Legal power, right and authority to hear and decide cases; geographical area within which authority may be exercised.

Juvenile Delinquent (D petition) - A person over 7 and less than 16 who is found to have committed an act that would be a crime if it were done by an adult and is also found to require either supervision, confinement or treatment.

Kinship Foster Care - Foster care placement with a family member.

Legal Aid Society (LAS) - A New York City Agency that provides legal representation as Lawyer for Child(ren)s to children in certain Family Court cases.

Lawyer for Child(ren) –A lawyer assigned by the court to act as a child’s attorney. Formerly known as “Law Guardians”

Lawyers for Children (LFC) - Attorneys and certified social workers, who provide services to children as Lawyer for Child(ren)s in foster care review and termination of parental rights proceedings.

Law Guardian – See Lawyer for Child(ren) above

Mental Health Study/Mental Health Services (MHS) - The New York City Department of Health and Mental Hygiene (DOHMH), Division of Mental Hygiene Services (Division or DMH), is responsible for administering contracting actions related to mental health services for adults, adolescents and children.

Minor/Infant - Any child under the age of 18 years in the State of New York.

Motion - Application to a court for an order, ruling or decision.

Motion Granted - An order granting a specific relief requested in a motion.

Motion To Dismiss - An application to the court requesting the dismissal of a petition.

Movant - The party who initiates a motion.

New York State Child Abuse & Maltreatment Central Registry - A New York State agency responsible for maintaining all reports of alleged child abuse and maltreatment are recorded.

73 Non-custodial Parent - The parent who does not live with a child.

Notice of Appeal - Written notice of intent to appeal a decision/order of a Family Court judge. An appeal shall be taken by filing the original notice of appeal with the clerk of the Family Court in which the order was made.

Nunc Pro Tunc - “Now for then,” presently considered as if occurring at an earlier date, effective retroactively.

Objection to Support Magistrate’s Order - A specific written objection to an order made by a Support Magistrate. A review of such objection must be made by a judge.

Office of Child Support Enforcement (OCSE) - A division of the Administration of Children’s Services that provides custodians of children assistance in obtaining support, including financial and medical, establishing paternity and support obligations and enforcing such court orders.

Office of Children & Family Services (OCFS) - The New York State agency which administers the institutional placement of minors after juvenile delinquency findings.

Order Modified - An order is modified when the Court changes the conditions or terms of an order made by a court.

Order of Filiation (OF) - An order by the court legally declaring a male party the biological father of a child, usually done on the basis of the filing of a paternity petition.

Order of Protection (OP) - Order prohibiting a person from harming or threatening another.

Order of Support (OS) - An order directing payments of child support or combined child and spousal support.

Order of Support Reinstated - An order reinstating an order of support previously suspended by the court.

Order of Support Suspended - A temporary suspension of an order of support.

Order of Support Terminated - An order that terminates an order of support based on findings of the court.

Order of Visitation - Order which provides that the person who has custody of a child(ren) must allow the non-custodial parent or another person to visit the child(ren) on specific days and times.

Order to Produce (OTP) - An order directing a state or city Commissioner of Corrections to produce an inmate for a court appearance.

Order to Show Cause (OTSC) - An order made upon motion of one party (ex- parte) requiring the other party to appear and present reasons and objections (show cause) to the court against issuance of a proposed order. An OTSC is an accelerated method of bringing a matter before the court and may contain a proposed temporary order.

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Office of Temporary and Disability Assistance (OTDA) - A New York State agency responsible for overseeing child support initiatives statewide.

Paternity Petition - A petition to have a court determine if a man is the biological father of a child born out-of-wedlock.

Permanency Planning Hearing - Hearing involving a child in foster care, court ordered or voluntary, to establish time frames for the return of the child to his/her home or other permanency plans, including adoption.

Permanent Neglect - An allegation by an agency responsible for a child in foster care that believes that the child’s parents have not kept in contact, and have not planned for the child’s future.

Person in Need of Supervision (PINS) - A person under the age of 18 who does not attend school and/or behaves in a way that is dangerous or out of control and/or often disobeys parents, guardians or other authorities.

Petition - A signed, formal written request to a Family Court that starts a case and asks for specific assistance from the court.

Petition Transferred - An order directing that a petition be transferred to another venue.

Petitioner - The person or agency filing the petition.

Placement - The commitment or assignment of a person to a facility or to any supervisory, care or treatment program.

Prima Facie Case - A case sufficient on its face and supported by the requisite minimum of evidence.

Probation - Conditional freedom granted by a judicial officer to a juvenile in a Juvenile Delinquency or Person in Need of Supervision case, or to an adult in certain other proceedings, as long as the person meets certain conditions of behavior.

Pro Se - Any person who represents himself/herself in a court proceeding. In New York City Family Court, these persons are called “self-represented litigants”.

Rebuttal - A written response by a party to a written objection filed by the other party to a final order of a Support Magistrate.

Registration of Out of State Order of Support - When the duty of support for child or spouse or former spouse is based upon a support order of another state, the petitioner may in accordance with the Uniform Interstate Family Support Act, register that support order in a court of this state by transmitting certain required documents to the Clerk of Court.

Remand to ACS (Administration of Children’s Services) - The temporary removal of a child during the pendency of a PINS or neglect/abuse proceeding. During that period, the child is remanded to the Administration of Children’s Services

75 for custodial care.

Remittitur - Process by which an appellate court legally returns a case which was appealed to the court from which it was appealed, together with its decision, for such further action and entry of judgment as is required by the decision of the Appellate Court.

Respondent - The person who formally answers the allegations stated in a petition which has been filed in court.

Self-Represented Litigant - An individual who comes to Family Court to file a petition (or other application) and who has no attorney. (Also referred to as a “pro se” litigant.)

Service of Process - Providing the other party in a proceeding with the legal notice that a proceeding has been instituted and when and where to appear in court.

Settle Order - To conclude a lawsuit by agreement of the parties, usually by compromise.

Society for the Prevention of Cruelty to Children (SPCC) – An organization that provides therapeutic supervised visitation and trauma recovery programs.

Special Assistant Corporation Counsel for the Commissioner of Social Services - Attorneys who represent the interests of the Commissioner of Social Services in proceedings brought in Child Support Enforcement Term.

Social Services Law (SSL) – Laws that govern family court in New York State.

Statute of Limitations - Law which declares that actions of a specified kind be commenced after a specified period of time from when the cause of action occurred.

Stipulation - An agreement by attorneys or parties on opposite sides of a case as to any matter pertaining to the proceedings or trial.

Subpoena - A direction of the court, issued by an attorney or the court, commanding a person to appear in court.

Subpoena Duce Tecum - A subpoena commanding a person to produce in court, certain designated documents or records.

Summons - Notice for a person to appear in court at a specified time and place to answer a legal action against them.

Support Collection Unit (SCU) - A branch of Human Resources Administration which collects, accounts for, and disburses funds paid pursuant to an order of support.

Support Magistrate - Quasi-Judicial officer empowered to hear and determine support issues in support, paternity and interstate support proceedings.

Support Petition (F) - A petition filed to determine who is legally responsible for the support of a child, spouse or relative and how much support should be paid.

76 Suspended Judgment - A dispositional order which sets conditions for a specific duration which allows a respondent an opportunity to make corrective action that may result in the matter being dismissed

Temporary Order of Support (TOS) - An interim order issued during the pendency of a court case concerning the payment of support.

Terminate Parental Rights (B Petition) - When an agency responsible for a child in foster care believes that the child’s parents have not kept in contact, have not planned for the child’s future, have abandoned or abused the child or are mentally ill or developmentally disabled in a way that may harm the child, the agency can file a petition to terminate the parental rights of the parents.

Undertaking - A directive by the court requiring the respondent to either post a surety or deposit cash with the court or the Support Collection Unit to insure compliance with a court order of support.

Upon Default - Done by omission, failure or absence of a party to the action.

Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) - A proceeding which provides the court with the ability to deal with interstate custody and/or visitation matters.

Uniform Interstate Family Support Act (UIFSA) - A proceeding to secure support for dependent spouses and children from persons legally responsible for their support and found to be in another state, the District of Columbia, US Territories, the Dominion of Canada, and some foreign countries.

Venue - The particular county, city or geographical area in which a court with jurisdiction may hear and determine a case.

Verification - A sworn statement by a person signing a petition that the statements made in the petition are true.

Visitation Petition (V) - Proceeding which requests the right to visit with child(ren).

Voluntary Foster Care Placement (L Petition) - A court review of the voluntary placement of a child by a parent who is unable to care for a child.

Waiver - An intentional and voluntary relinquishment of some known right.

Warrant - An order issued by the court directing police or peace officers to arrest and/or produce a respondent and/or child.

Willfulness Hearing - Conducted in spousal or child support proceedings to determine if the respondent intentionally and willfully failed to obey a lawful order of support.

Writ - An order issued from a court of justice requiring the performance of a specified act, or giving authority and commission to have it done.

77 Writ of Habeas Corpus - An order issued by the court directing that a person be produced in Family Court immediately. This order generally requires the assistance of a peace officer.

18B Attorney - An attorney assigned by the court to represent a party in the Family Court. The assignment is made under County Law Sec. 18b.

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