Can a Hearing Be Continued Because of Vacation

A Citizen's Guide to the Family Court

Introduction | Family Court and You | Initial Appearance | Who Can Get a Lawyer | Your Lawyer | Your Case | Fact-Finding Hearing | Dispositional Hearing | Appealing Your Case | Types of Cases in Family Court | Who's Who in the Courtroom | Glossary

Introduction

The purpose of this guide is to provide you with general information regarding the operation of the Family Court system. You are encouraged to seek legal advice before proceeding in Family Court. This guide is not intended to be legal advice.

The guide was originally prepared and distributed as a public education project of the Fund for Modern Courts. This locally adapted version has been prepared by the members of the Tompkins County Family Court Advisory Council.

Family Court and You

The family court deals primarily with the problems of children and their families. The court hears cases involving:

• abuse and neglect of children
• custody and rights to visit children
• family offenses including abuse of spouses and other family members
• children who may have committed crimes (Juvenile Delinquency)
• children who are not charged with crimes but who may need supervision, treatment or placement (PINS)
• paternity
• support of children, spouses and ex-spouses
• planning for children who have been in foster care for a year or longer
• termination of parental rights

When a person or an agency wants to bring a case into the Family Court, the first step is to file a petition. The person or agency filing a petition is called the Petitioner. The person against whom the petition is filed is called the Respondent.

Petition forms may be obtained from the Family Court Clerk's Office. The petition is a sworn statement giving the facts of the case the Family Court is being asked to decide. If you are not represented by a lawyer, you will need to fill out the petition yourself. In juvenile delinquency cases, the county attorney will draw up the petition. If possible, you should consult with a lawyer before filing a petition. The petition must be filed with the Family Court Clerk. The Clerk will make sure that the petition is put on record (filed) correctly and will set a date for the first hearing of the case.

In certain juvenile delinquency cases which do not involve serious violent actions, probation intake workers can interview the person who made the complaint, the police officer and the accused child to see if the matter can be settled without going through the court and to decide if the child should be sent home or temporarily detained. No one can be forced to talk to the probation workers at this time. What is said in the interview will not be disclosed unless there is a finding of delinquency by the court.

Initial Appearance (First Hearing)

At the first court proceeding - the Initial Appearance - the judge will briefly review the petition and explain the charges or demands for relief. The judge will also explain what are the rights of the parties involved in the cases, unless the parties are represented by lawyers. In certain cases, the judge will assign a lawyer for a person who cannot afford to pay for one (see below, "Who Can Get a Lawyer") and may issue a summons for the other person to appear. In certain specific circumstances involving serious charges, the judge may order a warrant of arrest.

At the conclusion of the Initial Appearance, the judge will usually set a date for the lawyers to meet with the judge's law clerk to discuss the petition and whether the matter may be settled by agreement between the parties and without the need for a trial. If the petition cannot be settled by agreement, the court will schedule the case for trial.

Who Can Get a Lawyer

The parties in most Family Court proceedings have the right to have a lawyer. You are free to hire a lawyer of your choosing. If your particular case is one where you have the right to a lawyer, but you cannot afford to pay for your own lawyer, then the court will usually assign one to the represent you. Cornell Legal Aid and some neighborhood legal service groups may also be able to give legal help at no cost to people whose income falls below a certain level.

In most cases, children are entitled to legal help in the Family Court. The judge will assign a lawyer called a law guardian for the child. There is no charge for the help of a law guardian. Law guardians may be lawyers who work for the Law Guardian's Office or lawyers with private practices who are appointed by the court.

In juvenile delinquency cases, the facts of the petition are presented by the assistant county attorney. Assistant district attorneys present cases involving serious violent offenses.

In contested paternity or support cases, the Department of Social Services will represent the custodial parent regardless of income. The court will assign a lawyer to a man who denies paternity or any person who is charged with violation of a support order if that person cannot afford a lawyer.

Your Lawyer

Your lawyer, whether privately hired or assigned to you by the court, is there to protect your rights. MAKE USE OF YOUR LAWYER.

Work with your lawyer so that your case can be presented to the judge in the best possible way. When you speak with your lawyer for the first time, give your address and telephone number and get your lawyer's name, address and telephone number. Set a date to meet to go over your case before the next court date.

If you do not understand why you were called to Family Court, ask your lawyer to explain it to you. You are entitled to get a copy of the petition from the court. If you didn't receive it, ask to see a copy of the petition and any other court papers.

The next time you meet with your lawyer, bring any information or papers that will help to explain your side of the case. Your lawyer can help you best if you GIVE ALL THE FACTS. The code of ethics for lawyers forbids them to disclose anything about your case that you tell them in confidence. Let your lawyer know if there are people who would speak for your side of the case in court. Tell your lawyer how to get in touch with people who would be witnesses for you.

At the hearing, let your lawyer do all the talking. If you want to speak, first talk over what you want to say with your lawyer. As much as you may want to speak out in court, things you say without checking with your lawyer might hurt your case.

Your Case

You must appear in court each time on the date and at the time set. If you are the Petitioner (you filed a petition) and you fail to appear as ordered, the judge may dismiss your petition without further hearings. If you are the Respondent (a petition was filed against you) and you fail to appear as ordered, the judge may take your default and grant the petition without further hearings. Sometimes the court can have people arrested if they do not come to court when they are told.

On the day of your court hearing, make sure you are on time. If for any reason you cannot make it, let your lawyer know in plenty of time so that he or she can ask the court to set the case for another day. If you have lost the information about your court date, call your lawyer or call the Family Court Clerk's Office. If you do not know where to go in the courthouse on your hearing date, ask at the security or information desk.

Fact-Finding Hearing (Trial)

Trial in Family Court may consist of one or two steps. Custody, visitation, paternity or support cases are decided in one step - the fact-finding hearing. Cases involving family offenses, Persons in Need of Supervision (PINS), Juvenile Delinquency (JD), abuse, neglect or permanent neglect are decided in two steps - the fact-finding hearing is held first and the dispositional hearing is the second step. There is no jury in Family Court; the judge conducts all hearings.

At the fact-finding hearing, the judge will hear all of the important facts (evidence) and determine what has been proved. If the facts are not proved, the case will be dismissed. This means that the case is finished. Sometimes the case is withdrawn, which means that the person or agency who wanted the case heard in Family Court decides not to go on with it.

If the facts are proved in custody, visitation, paternity or support cases, the judge will also decide what relief to grant as part of the fact-finding hearing.

If the facts are proved in matters involving family offenses, abuse, neglect or permanent neglect, the case moves into the second step of the hearing process, the dispositional hearing.

Dispositional Hearing

If a judge decides that the things said in the petition are true (are proved) and there is a legal remedy, then a dispositional hearing will be held. The dispositional hearing will start immediately after the fact-finding hearing ends or will be scheduled on another day. At the dispositional hearing, the judge decides what should be done about the allegations proved in the fact-finding hearing.

Appealing Your Case

If you believe the court's final decision and order is legally incorrect, you may want to appeal. This means that a higher court will review the decision of the Family Court. Ask your lawyer about this right.

If you want to appeal, tell your lawyer, who can tell the court that you want to appeal your case. A new lawyer may be assigned to your case if you cannot afford to pay for one. You should talk over with your lawyer whether or not the case should be appealed. A notice that you want to appeal must be filed within thirty (30) days after the judge's decision on your case is served on all the parties or their attorneys. If the Notice of Appeal is not filed within the thirty (30) day time-limit, you will lose your right to appeal.

Types of Cases in Family Court

You or your child may be involved in one of these types of cases:

Child Protective Proceedings (N petition)

Child abuse and neglect petitions may charge that the parent, guardian or a person legally responsible for a child has neglected or abuse the child. Neglect and abuse may include causing emotional or physical harm or risk of harm to the child. It may also include failing to protect a child from harm caused by other people. The charge of abuse or neglect must be proven at a fact-finding hearing held in Family Court. If the case is not proved, the child must be returned to the parent or guardian. If the court finds that abuse or neglect occurred, it may issue an order requiring the removal of the child from the home for a period of up to twelve months. The order may also direct the parent or guardian to participate in programs and services designed to help eliminate the problems that caused the abuse or neglect. At the end of twelve months, the child may be returned home, the Department of Social Services may ask for an extension of the child's placement or the Department of Social Services may file a petition to terminate parental rights (see "Permanent Neglect"), below).

A child may also be removed from the home before a petition is filed. This may happen when a child is in a situation that is a danger to the child's life or health. If a child is removed from the home before a petition is filed, the parent must be notified immediately. The Department of Social Services must then promptly file a petition in Family Court. The parent or guardian of the child may request an expedited court hearing, called a Return of Child hearing, to decide whether the child should be returned to the home.

Sometimes a child is removed from a home with the permission of the parent or guardian. Unless the parent or guardian has signed a paper allowing removal, the party has a right to a hearing on the child's removal from home.

Custody and Visitation (V petition)

Having custody of a child means that a person is legally responsible for the care of the child. Visitation rights are sometimes given by the court to people who no longer have custody of their child, but have the court's permission to see the child at certain times.

The judge, after hearing all sides of the case, will decide who should have custody of the child, and sign an official court paper called a custody order.

The judge may also sign an order of visitation, which is an official court paper saying that the person who has custody must allow another person to visit the child under certain circumstances.

Family Offense (O petition)

A family offense petition may claim that a person hurt or threatened a member of his or her family or household. After the petition is filed, a judge may sign an official court paper called a Temporary Order of Protection. This orders the person charged to immediately stop harming or threatening the family or household member and may even order a family member to be removed from the home. The Temporary Order of Protection remains in effect for 90 days or until the court makes another order, whichever comes first.

A family offense petition follows the same steps as discussed above: Initial appearance, fact-finding hearing and dispositional hearing. If the allegations of the petition are proved at the fact-finding hearing, the judge may consider different alternatives at the dispositional hearing when determining what should be done. For example, a Permanent Order of Protection may be issued to replace the Temporary Order of Protection. A Permanent Order of Protection remains in effect for a year and violation of its terms may result in the court ordering a jail sentence of up to six months.

A judge may also grant custody to one party and/or determine whether visitation is appropriate and under what conditions.

Juvenile Delinquency -- JD (D or E petition)

A juvenile delinquent is a person between the ages of 7 and 16 who commits an act that would be a crime (a misdemeanor or felony) if it were done by an adult. A 13, 14, or 15 year old who commits certain serious, violent acts may be treated as an adult in a criminal court or the criminal court may remove the case back to Family Court. In these serious cases where the actions are called designated felony acts, the District Attorney's Office will be the agency who presents the case against the juvenile.

If the case will be heard in Family Court, a date and a time will be set for an Initial Appearance. The case will then proceed as discussed above -- through fact-finding and dispositional hearings.

If the facts alleged in the petition are proved and the child found to be a juvenile delinquent, there are several options available to a judge at the dispositional hearing. A juvenile delinquent may be confined in an institution, placed in a group home, put under probation supervision or may be granted a conditional discharge.

If the judge decides that the child is a juvenile delinquent, there is no criminal record against the child. However, Family Court, Probation and police records exist.

Persons in Need of Supervision -- PINS (S petition)

A person in need of supervision (PINS) is a person between the ages of 7 and 16 (up to 18 starting 11/01) who does any or all of the following:

• does not attend school;
• behaves in a way that is dangerous or out of control;
• often disobeys parents, guardians, or other authorities; and/or
• possesses marijuana

A PINS petition may be filed (once written permission has been received from the Probation Department) to ask the Court at the dispositional hearing to order treatment or supervision for the child. Like a Juvenile Delinquent, a PINS may be confined in an institution, placed in a group home, put under probation supervision, or may be granted a conditional discharge.

Paternity (P petition)

A paternity petition is brought to the Family Court to have an official decision as to whether or not a man charged is the father of an out-of-wedlock child. Often the person alleging paternity or the person accused of being the father of the child asks that a blood test be made, or it may be ordered by the court. Either party, or the court, may request that a further test known as an HLA test be made. This test often shows that a man is or is not the father of the child, but the costs of the test may be substantial. (In some instances, the Department of Social Services will pay for the test.)

If paternity is proved or admitted, the judge will sign an Order of Filiation, an official court paper saying that the person is the father of the child. Then the hearing will continue to decide support rights. A man charged in a contested paternity proceeding may hire a lawyer to represent him or can have a lawyer appointed if he cannot afford one. If the mother is using the services of the Support Collection Unit at the Department of Social Services, that Unit will represent the mother regardless of income.

The Order of Filiation is extremely important because it establishes the fact that the man is related to the child. This relationship must exist if the father is to have any rights (visitation, custody) to the child, or the child is to obtain any benefits from the father (support, Social Security, etc.).

Permanent Neglect (B petition)

When a child has been removed from the parents' home due to certain serious problems, the Department of Social Services may decide that the problems cannot be resolved in a reasonable amount of time, usually 12 months from when the child was removed. In this situation, the Department may file a Permanent Neglect petition to request the court terminate the parent's parental rights and free the child for adoption.

A permanent neglect petition may also be filed if a parent abandons, severely abuses or permanently neglects a child or if the parent suffers from a mental condition that prevents the parent from properly caring for the child.

These petitions follow the same steps as discussed above, including an Initial Appearance, fact-finding hearing and dispositional hearing.

Support (USDL or F petition)

A wife, husband, relative, the Department of Social Services or certain other authorized agencies can bring a support petition in Family Court to have the court decide who is legally responsible for the support of a child, spouse or relative and how much support should be paid. When the person charged with support lives in another country, state or county, a Uniform Support of Dependents Law (USDL) petition is filed. All parties in a support case have a right to a hearing.

The person charged with failing to obey (violating) a support order also has a right to a hearing. The judge will decide how much support will be ordered to be paid after deciding whether the person charged is responsible for support. To be sure support payments are made, the judge may order a payroll deduction or seizing of property or a judgment. If an order of support is disobeyed, the judge may send the person to jail.

Approval of Foster Care Placement (L petition) and Foster Care Reviews (K petition)

Sometimes a parent or guardian feels unable to care for a child and temporarily gives away the right to custody to a social service agency either for a short time or permanently. The agency which takes custody of a child must ask the court to review and approve that action. The parent must be given notice of this hearing and have his or her side heard in court. The law requires that when a child has been voluntarily placed in foster care for more than thirty (30) days, this hearing must take place and the parents must be told about the date of this hearing. The parents or guardian, a social worker, and a member of the agency involved should be at the hearing. The judge will decide if the placement is voluntary and necessary.

If a child is in foster care for twelve (12) months or longer, a case called foster care review will be filed with the Family Court. The Court will decide what to do with the child who is in foster care. This review could result in a parent losing the right to custody of his or her child, or it could result in a child being returned to his or her parent(s). If a child remains in foster care there must be another hearing in one year. The parent has a right to a lawyer at a foster care review.

Who's Who in the Courtroom

Judge
The Judge is in charge of the courtroom and decides what will happen in a case. He or she sits at a desk (also called the bench) at the front of the courtroom. As in other courts, the judge wears a black robe.

Assistant County Attorney
The Assistant County Attorney presents PINS and JD petitions against the juvenile.

Assistant District Attorney
The Assistant District Attorney presents the petition in certain juvenile delinquency cases involving certain serious crimes.

Court Magistrate
The Court Magistrate conducts child and spousal support hearings and begins proceedings regarding uncontested paternity cases. Contested paternity cases are heard by the Family Court Judge.

Law Guardian
A law guardian is a lawyer assigned by the Judge to represent the legal interests of the child.

Probation Officer
The Probation Officer works for the county Probation Department. There is not usually a Probation Officer present in Family Court unless the Judge requests their presence. Sometimes the Judge will order the Probation Department to gather information about the people involved in a case and report to the court.

Court Officer
The court Officer is a non-uniformed deputy sheriff who is responsible for keeping order and security in the courtroom.

Court Reporter
The Court Reporter records every word that is said during court hearings on a special machine.

Caseworker
The staff member from a social service agency involved in a case is generally called a Caseworker. Caseworkers are often required to gather information about the people involved in a case and report to the court.

Glossary

adjustment A program of services through the Probation Department to resolve the complaint against a person charged with less offenses.

adjournment An order to postpone or suspend the Court's proceedings in a case until another specific date.

adjudicate To hear and determine the truth of the facts alleged in a petition.

admission Voluntary statement that a fact alleged in a petition is true.

appeal Resort to a higher Court, in an attempt to have the decision of a trial Court changed. Usually appeals are brought and decided upon questions of law only.

Assigned Counsel Lawyers appointed by the court to represent a party who has the right to a lawyer but cannot afford one.

charges Formal allegations brought by the Court by the police or other authorized persons that an offense has been committed.

conflict of interest Where two or more parties to a legal proceeding have potentially different interests at state, or have different versions of the facts underlying the case, they are "in conflict". Where such parties are entitled to be represented by legal counsel, they should have separate attorneys so each party can have the whole-hearted assistance of his or her lawyer. A wife and her husband may be in conflict; so too, may a parent and a child.

conditional discharge One of the possible final orders by the Court. If the agreed upon conditions are met by the end of the year, the case is dismissed.

demands for relief A request by an attorney to the court for orders to improve the conditions for his/her clients.

family court clerk State employee in charge of the county's Family Court offices and its operations.

felony A class of serious crimes from which punishments may exceed one year's imprisonment.

group home A foster placement for several teenagers - usually operated by a private child care agency.

jurisdiction The poser of a particular court to hear cases involving certain categories of person or allegations. Jurisdiction may also depend upon geographical factors such as the county of a person's residence.

misdemeanor A class of lesser crimes for which punishment may not exceed one year's imprisonment.

serve To notify by mail or in person of a scheduled court hearing or other official court action.

summons A document notifying the person named in the action of the filing of a lawsuit against him/her. A summons requires the attendance of a person at court.

suspended judgment One of the possible final orders by a court. After a period of one year, if certain conditions are met, the case is dismissed. Judgment of guilt is "suspended" and never determined.

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Source: https://ww2.nycourts.gov/courts/6jd/tompkins/family/you.shtml

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