Constitution and selected statutes on jurisdiction, and
on preliminary and interim matters:
§ 13. [Family Court
jurisdiction]
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b. The family court shall have jurisdiction over the following classes of
actions and proceedings which shall be originated in such family court in the
manner provided by law: (1) the protection, treatment, correction and
commitment of those minors who are in need of the exercise of the authority of
the court because of circumstances of neglect, delinquency or dependency, as
the legislature may determine; (2) the custody of minors except for custody
incidental to actions and proceedings for marital separation, divorce,
annulment of marriage and dissolution of marriage; (3) the adoption of persons;
(4) the support of dependents except for support incidental to actions and
proceedings in this state for marital separation, divorce, annulment of
marriage or dissolution of marriage; (5) the establishment of paternity; (6)
proceedings for conciliation of spouses; and (7) as may be provided by law: the
guardianship of the person of minors and, in conformity with the provisions of
section seven of this article, crimes and offenses by or against minors or
between spouses or between parent and child or between members of the same family
or household. Nothing in this section shall be construed to abridge the
authority or jurisdiction of courts to appoint guardians in cases originating
in those courts.
c. The family court shall also have jurisdiction to determine, with the
same powers possessed by the supreme court, the following matters when referred
to the family court from the supreme court: habeas corpus proceedings for the
determination of the custody of minors; and in actions and proceedings for
marital separation, divorce, annulment of marriage and dissolution of marriage,
applications to fix temporary or permanent support and custody, or applications
to enforce judgments and orders of support and of custody, or applications to
modify judgments and orders of support and of custody which may be granted only
upon the showing to the family court that there has been a subsequent change of
circumstances and that modification is required.
d. The provisions of this section shall in no way limit or impair the
jurisdiction of the supreme court as set forth in
section seven of this article.
Family Court article 6, Part 3:
FCA § 651. Jurisdiction
over habeas corpus proceedings and petitions for custody and visitation of
minors
(a) When referred from the supreme court or county court to
the family court, the family court has jurisdiction to determine, in accordance
with subdivision one of section two hundred forty of the domestic relations law
and with the same powers possessed by the supreme court in addition to its own
powers, habeas corpus proceedings and proceedings brought by petition and order
to show cause, for the determination of the custody or visitation of minors.
(b) When initiated in the family court, the family court has jurisdiction
to determine, in accordance with subdivision one of section two hundred forty
of the domestic relations law and with the same powers possessed by the supreme
court in addition to its own powers, habeas corpus proceedings and proceedings
brought by petition and order to show cause, for the determination of the
custody or visitation of minors, including applications by a grandparent or
grandparents for visitation or custody rights pursuant to section seventy-two
or two hundred forty of the domestic relations law.
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*
(d) With respect to applications by a grandparent or grandparents for
visitation or custody rights, made pursuant to section seventy-two or two
hundred forty of the domestic relations law, with a child remanded or placed in
the care of a person, official, agency or institution pursuant to the
provisions of article ten of this act, the applicant, in such manner as the
court shall prescribe, shall serve a copy of the application upon the social
services official having care and custody of such child, and the child's law
guardian, who shall be afforded an opportunity to be heard thereon.
FCA § 652. Jurisdiction
over applications to fix custody in matrimonial actions on referral from
supreme court
(a) When referred from the supreme court to the family court,
the family court has jurisdiction to determine, with the same powers possessed
by the supreme court, applications to fix temporary or permanent custody and
applications to modify judgments and orders of custody or visitation in actions
and proceedings for marital separation, divorce, annulment of marriage and
dissolution of marriage. Applications to modify judgments and orders of custody
may be granted by the family court under this section only upon the showing to
the family court that there has been a subsequent change of circumstances and
that modification is required.
(b) In the event no such referral has been made and unless the supreme
court provides in the order or judgment awarding custody or visitation in an
action for divorce, separation or annulment, that it may be enforced or
modified only in the supreme court, the family court may:
(i) determine an application to enforce the
order or judgment awarding custody or visitation, or
(ii) determine an application to modify the order or judgment awarding
custody or visitation upon a showing that there has been a subsequent change of
circumstances and modification is required.
(c) In any determination of an application pursuant to this section, the
family court shall have jurisdiction to determine such applications, in
accordance with subdivision one of section two hundred forty of the domestic
relations law, with the same powers possessed by the supreme court, and the
family court's disposition of any such application is an order of the family
court appealable only under article eleven of this
act.
Domestic Relations Law:
DRL § 70. Habeas corpus
for child detained by parent
(a) Where a minor child is residing within this state, either
parent may apply to the supreme court for a writ of habeas corpus to have such
minor child brought before such court; and on the return thereof, the court, on
due consideration, may award the natural guardianship, charge and custody of
such child to either parent for such time, under such regulations and
restrictions, and with such provisions and directions, as the case may require,
and may at any time thereafter vacate or modify such order. In all cases there
shall be no prima facie right to the custody of the child in either parent, but
the court shall determine solely what is for the best interest of the child,
and what will best promote its welfare and happiness, and make award
accordingly.
(b) Any order under this section which applies to rights of visitation
with a child remanded or placed in the care of a person, official, agency or
institution pursuant to article ten of the family court act or pursuant to an
instrument approved under section three hundred fifty-eight-a of the social
services law, shall be enforceable pursuant to the provisions of part eight of
article ten of such act, sections three hundred fifty-eight-a and three hundred
eighty-four-a of the social services law and other applicable provisions of law
against any person or official having care and custody, or temporary care and
custody, of such child.
DRL §71. Special proceeding or habeas corpus to
obtain visitation rights in respect to certain infant siblings
Where circumstances show that conditions exist which equity would
see fit to intervene, a brother or sister or, if he or she be a minor, a proper
person on his or her behalf of a child, whether by half or whole blood, may
apply to the supreme court by commencing a special proceeding or for a writ of
habeas corpus to have such child brought before such court, or may apply to the
family court pursuant to subdivision (b) or section six hundred fifty-one of
the family court act; and on the return thereof, the court, by order, after due
notice to the parent or any other person or party having the care, custody, and
control of such child, to be given in such manner as the court shall prescribe,
may make such directions as the best interest of the child may require, for
visitation rights for such brother or sister in respect to such child.
DRL § 72. Special
proceeding or habeas corpus to obtain visitation rights or custody in respect
to certain infant grandchildren
1. Where either or both of the parents of a minor
child, residing within this state, is or are deceased, or where circumstances
show that conditions exist which equity would see fit to intervene, a
grandparent or the grandparents of such child may apply to the supreme court by
commencing a special proceeding or for a writ of habeas corpus to have such
child brought before such court, or may apply to the family court pursuant to
subdivision (b) of section six hundred fifty-one of the family court act; and
on the return thereof, the court, by order, after due notice to the parent or
any other person or party having the care, custody, and control of such child,
to be given in such manner as the court shall prescribe, may make such
directions as the best interest of the child may require, for visitation rights
for such grandparent or grandparents in respect to such child.
2. (a) Where a grandparent or the grandparents of a minor child,
residing within this state, can demonstrate to the satisfaction of the court
the existence of extraordinary circumstances, such grandparent or grandparents
of such child may apply to the supreme court by commencing a special proceeding
or for a writ of habeas corpus to have such child brought before such court, or
may apply to family court pursuant to subdivision (b) of section six hundred
fifty-one of the family court act; and on the return thereof, the court, by
order, after due notice to the parent or any other person or party having the
care, custody, and control of such child, to be given in such manner as the
court shall prescribe, may make such directions as the best interests of the
child may require, for custody rights for such grandparent or grandparents in respect
to such child. An extended disruption of custody, as such term is defined in
this section, shall constitute an extraordinary circumstance.
(b) For the purposes of this section "extended disruption of
custody" shall include, but not be limited to, a prolonged separation of
the respondent parent and the child for at least twenty-four continuous months
during which the parent voluntarily relinquished care and control of the child
and the child resided in the household of the petitioner grandparent or grandparents,
provided, however, that the court may find that extraordinary circumstances
exist should the prolonged separation have lasted for less than twenty-four
months.
(c) Nothing in this section shall limit the ability of parties to enter
into consensual custody agreements absent the existence of extraordinary
circumstances.
UCCJEA - DRL §§ 75 - 78-a (excerpts):
§ 75. Short title and statement
of legislative intent
1. This article may be cited as the "uniform
child custody jurisdiction and enforcement act".
2. It is the intent of the legislature in enacting this article to provide
an effective mechanism to obtain and enforce orders of custody and visitation
across state lines and to do so in a manner that ensures that the safety of the
children is paramount and that victims of domestic violence and child abuse are
protected. It is further the intent of the legislature that this article be
construed so as to ensure that custody and visitation by perpetrators of
domestic violence or homicide of a parent, legal custodian, legal guardian,
sibling, half-sibling or step-sibling of a child is restricted pursuant to
subdivision one-c of section two hundred forty of this chapter and section one
thousand eighty-five of the family court act.
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Temporary Orders of Protection in Family Court:
FCA § 655. Temporary order
of protection
(a) Upon the filing of a petition or counter-claim under this
article, the court for good cause shown may issue a temporary order of
protection which may contain any of the provisions authorized on the making of
an order of protection under section six hundred fifty-six of this article.
(b) A temporary order of protection is not a finding of wrongdoing.
(c) The court may issue or extend a temporary order of protection ex parte or on notice simultaneously with the issuance of a
warrant directing that the respondent be arrested and brought before the court
pursuant to section six hundred seventy-one of this article.
(d) The court shall not require anyone seeking a temporary order of
protection under this section to first request that child protective services
investigate the allegations or to first request permission to file a petition
under article ten of this act.
Notwithstanding the foregoing provisions, an order of protection, or temporary
order of protection where applicable, may be entered against a former spouse
and persons who have a child in common, regardless whether such persons have
been married or have lived together at any time.
Privacy of records
N.Y.C.R.R. § 205.5. Privacy
of Family Court records
Subject: to limitations and procedures set by statute and case
law, the fol1owing shall be permitted access to the pleadings legal papers
formally filed in a proceeding, findings, decisions and orders and, subject to
the provisions of CPLR 8002, transcribed
minutes of any bearing held an the proceeding
(a) the petitioner, presentment agency and adult respondent in the Family
Court proceedings and their attorneys;
(b) when a child is either a party to, or the child's custody may be
affected by, the proceedings:
(1) the parents or persons legally
responsible for the care of that child and their attorneys;
(2) the guardian, guardian ad litem and law guardian or attorney for that child;
(3) an authorized representative of
the child protective agency involved in the proceeding or the probation service;
and
(4) an agency to which custody has
been granted by an order of the Family Court and its attorney; and
(c) a representative of the State Commission on Judicial Conduct, upon
application to the appropriate Deputy Chief Administrator, or his or her
designee, containing an affirmation that the Commission is inquiring into a
complaint under Article 2-A of the Judiciary Law, and that the inquiry is
subject to the confidentially provisions of said Article.
(d) in proceedings under Articles 4, 5, 6 and 8 of the Family Court Act in
which temporary or final orders so protection have been issued:
(1) where a related criminal action
may, but has not yet been commenced, a prosecutor upon affirmation that such
records are necessary to conduct an investigation or prosecution; and
(2) where a related criminal action
has been commenced, a prosecutor or defense attorney in accordance with
procedures set forth in a criminal procedure law; provided, however, that
prosecutor may request transcripts of Family Court proceedings in accordance
with section 815 of the Family Court Act,
and provided further that any records or information disclosed pursuant to this
subdivision must be retained as confidential and may not be redisclosed
except as necessary for such investigation or use in the criminal action.
(e) another court when necessary for a pending proceeding involving one or
more parties or children who are or were the parties in, or subjects of, a
proceeding in the Family Court pursuant to Articles 4, 5, 6, 8 or 10 of the
Family Court Act. Only certified copies of pleadings and orders in, as well as
information regarding the status of such Family Court proceeding may be
transmitted without court order pursuant to this section. Any information or
records disclosed pursuant to this paragraph may not be re-disclosed except as
necessary to the pending proceeding.
Where the Family Court has authorized that the address of a party or child be
kept confidential in accordance with Family Court Act § 154-b(2),
any record or document disclosed pursuant to this section shall have such
address redacted or otherwise safeguarded.
Judiciary L. § 35. Assignment
of counsel to indigent persons and appointment of physicians in certain
proceedings
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3. No counsel assigned pursuant to this section shall
seek or accept any fee for representing the person for whom he or she is
assigned without approval of the court as herein provided. Whenever it appears
that such person is financially able to obtain counsel or make partial payment
for the representation, counsel may report this fact to the court and the court
may terminate the assignment or authorize payment, as the interests of justice
may dictate, to such counsel. Counsel assigned hereunder shall at the
conclusion of the representation receive compensation at a rate of seventy-five
dollars per hour for time expended in court, and seventy-five dollars per hour
for time reasonably expended out of court, and shall receive reimbursement for
expenses reasonably incurred. For
representation upon a hearing, compensation and reimbursement shall be fixed by
the court wherein the hearing was held and such compensation shall not exceed
four thousand four hundred dollars. For representation in an appellate court,
compensation and reimbursement shall be fixed by such court and such
compensation shall not exceed four thousand four hundred dollars. In
extraordinary circumstances the court may provide for compensation in excess of
the foregoing limits.
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7. Whenever the supreme court or a surrogate's court
shall appoint counsel in a proceeding over which the family court might have
exercised jurisdiction had such action or proceeding been commenced in family
court or referred thereto pursuant to law, and under circumstances whereby, if
such proceeding were pending in family court, such court would be authorized by
section two hundred forty-nine of the family court act to appoint a law
guardian, such counsel shall be compensated in accordance with the provisions
of this section.
Assignment of Law Guardians (selected provisions)
FCA § 241. Findings and
purpose
This act declares that minors who are the subject of family court
proceedings or appeals in proceedings originating in the family court should be
represented by counsel of their own choosing or by law guardians. This
declaration is based on a finding that counsel is often indispensable to a
practical realization of due process of law and may be helpful in making
reasoned determinations of fact and proper orders of disposition. This part
establishes a system of law guardians for minors who often require the
assistance of counsel to help protect their interests and to help them express
their wishes to the court. Nothing in this act is intended to preclude any
other interested person from appearing by counsel.
FCA § 242. § 242. Law
guardian
As used in this act, "law guardian" refers to an
attorney admitted to practice law in the state of
FCA § 249. Appointment of
law guardian
(a) In a proceeding under article three, seven or ten of this
act or where a revocation of an adoption consent is opposed under section one
hundred fifteen-b of the domestic relations law or in any proceeding under
section three hundred fifty-eight-a, three hundred eighty-three-c, three
hundred eighty-four, three hundred eighty-four-b or three hundred ninety-two of
the social services law or when a minor is sought to be placed in protective
custody under section one hundred fifty-eight of this act, the family court
shall appoint a law guardian to represent a minor who is the subject of the
proceeding or who is sought to be placed in protective custody, if independent
legal representation is not available to such minor. In any proceeding to
extend or continue the placement of a juvenile delinquent or person in need of
supervision pursuant to section seven hundred fifty-six or 353.3 of this act or
any proceeding to extend or continue a commitment to the custody of the
commissioner of mental health or the commissioner of mental retardation and
developmental disabilities pursuant to section 322.2 of this act, the court
shall not permit the respondent to waive the right to be represented by counsel
chosen by the respondent, respondent's parent, or other person legally
responsible for the respondent's care, or by a law guardian. In any other
proceeding in which the court has jurisdiction, the court may appoint a law
guardian to represent the child, when, in the opinion of the family court
judge, such representation will serve the purposes of this act, if independent
legal counsel is not available to the child. The family court on its own motion
may make such appointment.
(b) In making an appointment of a law guardian pursuant to this section,
the court shall, to the extent practicable and appropriate, appoint the same
law guardian who has previously represented the child. Notwithstanding any
other provision of law, in a proceeding under article three following an order
of removal made pursuant to article seven hundred twenty-five of the criminal
procedure law, the court shall, wherever practicable, appoint the counsel
representing the juvenile offender in the criminal proceedings as law guardian.
Last updated January 8, 2005