- Consolidated Laws - Family Court
PART 2
PRELIMINARY PROCEDURE
Section 821. Originating proceedings.
821-a. Preliminary procedure.
822. Person who may originate proceedings.
823. Rules of court for preliminary procedure.
824. Admissibility of statements made during preliminary
conference.
825. Issuance of summons.
826. Service of summons.
827. Issuance of warrant; certificate of warrant.
828. Temporary order of protection; temporary order for child
support.
S 821. Originating proceedings. 1. A proceeding under this article is
originated by the filing of a petition containing the following:
(a) An allegation that the respondent assaulted or attempted to
assault his or her spouse, or former spouse, parent, child or other
member of the same family or household or engaged in disorderly conduct,
harassment, stalking, menacing or reckless endangerment toward any such
person; and
(b) The relationship of the alleged offender to the petitioner;
(c) The name of each and every child in the family or household and
the relationship of the child, if any, to the petitioner and to the
respondent;
(d) A request for an order of protection or the use of the court`s
conciliation procedures; and
(e) An allegation as to whether any accusatory instrument alleging an
act specified in paragraph (a) of this subdivision has been verified
with respect to the same act alleged in the petition. Appended to the
copy of the petition provided to the petitioner shall be a copy of the
notice described in subdivision five of section eight hundred twelve of
this article.
2. When family court is not in session, an arrest and initial
appearance by the defendant or respondent may be in a criminal court, as
provided in sections one hundred fifty-four-d and one hundred fifty-five
of this act.
S 821-a. Preliminary procedure. 1. Upon the filing of a petition
under this article, the court shall advise the petitioner of the right
to retain legal representation or if indigent, the right to have counsel
appointed pursuant to section two hundred sixty-two of this act.
2. Upon the filing of a petition under this article, the court may:
(a) issue a summons pursuant to section eight hundred twenty-six of
this part or issue a warrant pursuant to section eight hundred
twenty-seven of this part;
(b) issue a temporary order of protection in favor of the petitioner
and, where appropriate, the petitioner`s children or any other children
residing in the petitioner`s household, pursuant to section eight
hundred twenty-eight of this part.
3. Where the respondent is brought before the court pursuant to a
summons under section eight hundred twenty-six of this part or a warrant
issued under section eight hundred twenty-seven of this part, or where a
respondent voluntarily appears before the court after such summons or
warrant has been issued, the court shall:
(a) advise the parties of the right to retain legal representation or,
if indigent, the right to have counsel appointed pursuant to section two
hundred sixty-two of this act;
(b) advise the respondent of the allegations contained in the petition
before the court; and
(c) provide the respondent with a copy of such petition; and the court
may:
(i) order the release of the respondent on his or her own recognizance
pending further appearances as required by the court;
(ii) direct that the respondent post bail in a manner authorized
pursuant to section one hundred fifty-five-a of this act in an amount
set by the court; or
(iii) issue a commitment order directing that the respondent be
remanded to the custody of the county sheriff or other appropriate law
enforcement official until such time as bail is posted as required by
the court.
4. Where the court directs that the respondent post bail or that the
respondent be committed to the custody of a law enforcement official as
provided for herein, and the respondent fails to post bail or otherwise
remains in custody, a hearing shall be held without unreasonable delay
but in no event later than one hundred twenty hours after the arrest of
the respondent or in the event that a Saturday, Sunday, or legal holiday
occurs during such custody, one hundred forty-four hours after the
arrest of the respondent, to determine upon material and relevant
evidence whether sufficient cause exists to keep the respondent in
custody. If the court determines that sufficient cause does not exist or
if no hearing is timely held, the respondent shall immediately be
released on the respondent`s own recognizance.
5. (a) At such time as the petitioner first appears before the court,
the court shall advise the petitioner that the petitioner may: continue
with the hearing and disposition of such petition in the family court;
or have the allegations contained therein heard in an appropriate
criminal court; or proceed concurrently in both family and criminal
court.
(b) Where the petitioner seeks to have the petition heard and
determined in the family court, the court shall set the matter down for
further proceedings pursuant to the provisions of this article. Nothing
herein shall be deemed to limit or restrict petitioner`s rights to seek
to proceed directly in either criminal or family court, or both, as
provided for in section one hundred fifteen of this act and section
100.07 of the criminal procedure law.
6. When both parties first appear before the court, the court shall
inquire as to the existence of any other orders of protection involving
the parties.
S 822. Person who may originate proceedings. (a) Any person in the
relation to the respondent of spouse, or former spouse, parent, child,
or member of the same family or household;
(b) A duly authorized agency, association, society, or institution;
(c) A peace officer, acting pursuant to his special duties, or a
police officer;
(d) A person on the court`s own motion.
S 823. Rules of court for preliminary procedure. (a) Rules of court
may authorize the probation service
(i) to confer with any person seeking to file a petition, the
potential petitioner and other interested persons concerning the
advisability of filing a petition under this article, and
(ii) to attempt through conciliation and agreement informally to
adjust suitable cases before a petition is filed over which the court
apparently would have jurisdiction.
(b) The probation service may not prevent any person who wishes to
file a petition under this article from having access to the court for
that purpose.
(c) Efforts at adjustment pursuant to rules of court under this
section may not extend for a period of more than two months without
leave of a judge of the court, who may extend the period for an
additional sixty days. Two successive extensions may be granted under
this section.
(d) The probation service may not be authorized under this section to
compel any person to appear at any conference, produce any papers, or
visit any place.
(e) If agreement to cease offensive conduct is reached, it must be
reduced to writing and submitted to the family court for approval. If
the court approves it, the court without further hearing may thereupon
enter an order of protection in accordance with the agreement, which
shall be binding upon the respondent and shall in all respects be a
valid order. The court record shall show that such order was made upon
agreement.
S 824. Admissibility of statements made during preliminary conference.
No statement made during a preliminary conference may be admitted into
evidence at a fact-finding hearing under this act or in a criminal court
at any time prior to conviction.
S 825. Issuance of summons. On the filing of a petition under this
article, the court may cause a copy of the petition and a summons to be
issued, requiring the respondent to appear at the court at a time and
place to answer the petition.
S 826. Service of summons. (a) Unless the court issues a warrant
pursuant to section eight hundred twenty-seven of this part, service of
a summons and petition shall be made by delivery of a true copy thereof
to the person summoned at least twenty-four hours before the time stated
therein for appearance. If so requested by the respondent, the court
shall not proceed with the hearing or proceeding earlier than three days
after such service.
(b) If after reasonable effort, personal service is not made, the
court may at any stage in the proceedings make an order providing for
substituted service in the manner provided for substituted service in
civil process in courts of record.
S 827. Issuance of warrant; certificate of warrant. (a) The court may
issue a warrant, directing that the respondent be brought before the
court, when a petition is presented to the court under section eight
hundred twenty-one and it appears that
(i) the summons cannot be served; or
(ii) the respondent has failed to obey the summons; or
(iii) the respondent is likely to leave the jurisdiction; or
(iv) a summons, in the court`s opinion, would be ineffectual; or
(v) the safety of the petitioner is endangered; or
(vi) the safety of a child is endangered; or
(vii) aggravating circumstances exist which require the immediate
arrest of the respondent. For the purposes of this section aggravating
circumstances shall mean physical injury or serious physical injury to
the petitioner caused by the respondent, the use of a dangerous
instrument against the petitioner by the respondent, a history of
repeated violations of prior orders of protection by the respondent,
prior convictions for crimes against the petitioner by the respondent or
the exposure of any family or household member to physical injury by the
respondent and like incidents, behaviors and occurrences which to the
court constitute an immediate and ongoing danger to the petitioner, or
any member of the petitioner`s family or household.
(b) The petitioner may not serve a warrant upon the respondent, unless
the court itself grants such permission upon the application of the
petitioner. The clerk of the court may issue to the petitioner or to the
representative of an incorporated charitable or philanthropic society
having a legitimate interest in the family a certificate stating that a
warrant for the respondent has been issued by the court. The
presentation of such certificate by said petitioner or representative to
any peace officer, acting pursuant to his special duties, or police
officer authorizes him to arrest the respondent and take him to court.
(c) A certificate of warrant expires ninety days from the date of
issue but may be renewed from time to time by the clerk of the court.
(d) Rules of court shall provide that a record of all unserved
warrants be kept and that periodic reports concerning unserved warrants
be made.
S 828. Temporary order of protection; temporary order for child
support. 1. (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 eight hundred forty-two,
provided that the court shall make a determination, and the court shall
state such determination in a written decision or on the record, whether
to impose a condition pursuant to this subdivision, provided further,
however, that failure to make such a determination shall not affect the
validity of such order of protection. In making such determination, the
court shall consider, but shall not be limited to consideration of,
whether the temporary order of protection is likely to achieve its
purpose in the absence of such a condition, conduct subject to prior
orders of protection, prior incidents of abuse, extent of past or
present injury, threats, drug or alcohol abuse, and access to weapons.
(b) Upon the filing of a petition under this article, or as soon
thereafter as the petitioner appears before the court, the court shall
advise the petitioner of the right to proceed in both the family and
criminal courts, pursuant to the provisions of section one hundred
fifteen of this act.
2. A temporary order of protection is not a finding of wrongdoing.
3. 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 eight hundred twenty-seven of this article.
4. Notwithstanding the provisions of section eight hundred seventeen
of this article the court may, together with a temporary order of
protection issued pursuant to this section, issue an order for temporary
child support, in an amount sufficient to meet the needs of the child,
without a showing of immediate or emergency need. The court shall make
an order for temporary child support notwithstanding that information
with respect to income and assets of the respondent may be unavailable.
Where such information is available, the court may make an award for
temporary child support pursuant to the formula set forth in subdivision
one of section four hundred thirteen of this act. An order making such
award shall be deemed to have been issued pursuant to article four of
this act. Upon making an order for temporary child support pursuant to
this subdivision, the court shall advise the petitioner of the
availability of child support enforcement services by the support
collection unit of the local department of social services, to enforce
the temporary order and to assist in securing continued child support,
and shall set the support matter down for further proceedings in
accordance with article four of this act.
Where the court determines that the respondent has employer-provided
medical insurance, the court may further direct, as part of an order of
temporary support under this subdivision, that a medical support
execution be issued and served upon the respondent`s employer as
provided for in section fifty-two hundred forty-one of the civil
practice law and rules.
