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New York Supreme Court and Family Court
(provided by J. Douglas Barics, Esq.)
Many cases will involve both Family Court and Supreme Court. The role of these two courts is often not obvious, and while they share jurisdiction over several domestic issues, there are significant differences between the two.
Jurisdiction
Supreme Court
Supreme Court is New York's trial level court of general jurisdiction. Despite its name, there are two levels of courts higher than Supreme Court. Historically, its name arose due to its supremacy over local courts. Supreme Court has the authority to hear virtually any kind of case.
Family Court
Family Court was created by statute, and as such, its authority is defined by the Family Court Act. Several types of cases are required by the Family Court act to be commenced in Family Court. These provisions do not limit the Supreme Court's authority or jurisdiction in any way.
The Family Court Act is broken down into several articles. By Article, Family Court has the authority to hear the following types of cases.
- Juvenile Delinquency Cases (Article 3)
Family Court has the authority to hear Juvenile Delinquency Cases.
- Support Cases (Article 4)
Family Court can make initial awards for child and spousal support, modify existing orders, enforce existing orders, and enforce existing orders of child and spousal support. Note that Family Court Act did not grant the Family Court the power to enforce separation agreements. Any agreement must first be reduced to a judgment for Family Court to have jurisdiction. It is also possible for an existing Supreme Court order to restrict any future modifications to Supreme Court.
- Paternity (Article 5)
Family Court has the authority to hear paternity cases and issue orders of paternity.
- Custody and Visitation (Article 6)
Family Court has the authority to make initial awards, and to modify existing orders of custody and visitation, unless a prior order restricts that particular case to Supreme Court.
Article Six further confers the Family Court jurisdiction over guardianship proceedings. Note that Surrogate's Court has concurrent jurisdiction for guardianship, and that Family Court can grant only guardianship of the person, while Surrogate's Court can grant guardianship of the person and guardianship of the property.
Termination of Parental Rights is also governed by Article 6, in conjunction with Article 384-b of the Social Services Law.
Article Six also confers the Family Court jurisdiction over adoptions. This authority is shared with the Surrogate's Court.
- Person's in Need of Supervision (PINS) (Article 7)
A PINS case is a proceeding commenced by a parent against a child, which alleges that the parent cannot control the child.
- Article 8 Family Offense (Orders of Protection) (Article 8)
Family Court has the authority to hear proceedings for orders of protection. The Family Court Act grants the Court the authority to grant orders of protection as ancillary relief to other proceedings besides Article 8.
- Article 9 Conciliation Proceedings
The Family Court has the authority to assist married people reconcile.
- Child Protective Proceedings (Article 10)
An authorized agency my commence a proceeding to remove children and place them in foster care against the wishes of the parents.
Note that the power to grant a divorce, and all ancillary relief other than Support, custody and visitation was not granted to the Family Court. Therefore Supreme Court retains exclusive jurisdiction over these matters.
Procedure
Supreme Court
Procedure in Supreme Court is governed by the Civil Practice Law and Rules (CPLR). In Supreme Court, it is entirely possible for a case to remain in limbo, be marked off calendar, or even dismissed due to procedural errors.
In order to commence an action in Supreme Court, a filing fee of $170.00 is required, at which time an index number is assigned to the case.
In order to have a judge assigned to a case, a form called a Request for Judicial Intervention (R.J.I.) needs to be filed.
When a case is trial ready, a separate form called a Note of Issue is required to place the case on the trial calendar.
In short, the procedural rules alone make a lawyer almost mandatory for any case in Supreme Court.
Family Court
Family Court is designed to be much more user friendly than Supreme Court, and is designed to allow people to represent themselves. There are standardized forms for all pleadings. A person wishing to commence a proceeding in Family Court fills out a form, from which the clerk of the court prepares the necessary papers. There are no special forms required to have a judge assigned, nor is there any additional paperwork to have the case placed on the trial calendar.
A judge is automatically assigned to a case in Family Court, and no additional paperwork needs to be filed to place a case on the trial calendar.
Evidence
Supreme Court
Normal rules of evidence apply.
Family Court
There are statutory exceptions to the normal rules of evidence.
Names
Supreme Court
A case in Supreme Court is called an action. The parties to the action are the plaintiff and the defendant. The plaintiff's pleading consists of a complaint. Most complaints need not be verified. (Matrimonial actions are an exception to this rule. Pleadings must be verified in a matrimonial action.)
Family Court
A case in Family court is called a proceeding. The parties to the action are the petitioner and the respondent. The plaintiff's pleading is a verified petition. A trial in Family Court is called a hearing. Many proceedings have two hearings, a fact finding hearing, and a dispostional hearing. Different rules of evidence applies these hearings.
Attorney Fees and Assigned Counsel
Supreme Court
There is no right to have assigned counsel in a Supreme Court case. For matrimonial and support cases, it is possible to have the court make an award of counsel fees which requires the spouse with more money or assets pay the counsel fees for the other spouse.
Family Court
A family court judge has the authority to assign an attorney to indigent people for many (but not all) family court proceedings. The Family Court also has the authority in some instances to award counsel fees.
Information provided by:
J. Douglas Barics, Esq., located at
http://www.divorcesource.com/NY/pages/barics.htm
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