In New York State, we have Family Court. Family Court is a Court of “limited jurisdiction.” This means that Family Court can only hear matters that are specifically set forth by statute. The statutes that tell us what matters Family Court may hear are the Family Court Act (FCA), the New York State Constitution (yes, there IS a state constitution) and to some extent the Domestic Relations Law (DRL). While Family Court is generally touted as “user friendly” and informal, it can be a scary place, where children are taken from parents, people defend against alleged family offenses, and Temporary Orders of Protection are regularly issued without affording the Respondent the ability to dispute the allegations upon which it is based.
Before going to Family Court, as either a Petitioner (the person bringing a Petition) or the Respondent (the person responding to a Petition), there are some issues one must consider very carefully first:
1. Is Family Court the proper place for this Petition? Remember, as a court of limited jurisdiction, the Family Court can only hear certain enumerated issues. Is your issue one of them? If not, your Petition will likely be dismissed at the first appearance. For instance, Family Court cannot hear an action for divorce… only the Supreme Court has jurisdiction for that. Family Court cannot issue a Qualified Domestic Relations Order (QDRO) to divide a pension. Be sure the Court has the authority to grant the relief you are seeking before you file the Petition. Under certain circumstances, Supreme Court might be a better venue for a given matter.
2. Who do I want to hear this matter? While it may seem like a silly question, it is a very basic tactical question that any attorney will carefully consider before filing any Petition. In the Family Court, generally Support Magistrates hear all support related Petitions. Support Magistrates are not judges, are not elected, and have extremely busy calendars. Many of them are extremely good at what they do, but the occasional Support Magistrate may not be a good choice to hear a given matter. On the other hand, Family Court Judges generally hear matters involving custody and visitation. Do you know who the Support Magistrates and Family Court judges are that may be assigned to your case? Do you know who the Supreme Court Justices are that might be assigned to your case if filed in Supreme Court? before you file a Petition, you should research both of these issues. Call the clerk’s office and ask which Judges or Magistrates your case may be assigned to, they will let you know, with a little cajoling. Research those persons who are on the list of possibilities. How have they performed in the past? Have your friends or relatives been before any of them? Assess whether the Family Court or Supreme Court possible assignees might be more sympathetic to your case.
3. Manners. you need to be on your best behavior, before, during & after your Family Court appearance. Dress appropriately, it goes a long way. Men – button down shirt, neck-tie, neat and clean pants and shoes. Women- neat and clean, no jeans, no stiletto heels, CONSERVATIVE, no abdomen showing, no micro-mini skirts, easy on the cleavage (though it pains me to say that). All- ditch the piercings, cover the tattoos, speak when spoken too, do not yell, scream, curse, talk over the Judge, or end a sentence in the courtroom with anything other than “yes/no your honor” or “yes/no sir/ma’am.” Trust me, these simple manners will go a long way with the Court. You might be asking yourself :Hey, he said best behavior before and after the appearance, why can’t I flip the Judge off after I leave the courtroom?” Well, that is because of technology. There are cameras at all the entrences, exits, in the hallways, big brother has your number. There is a team of security personel watching your every move, and they watch CAREFULLY! if you’re planning on putting out a dube in the ashcan next to the door, you’ll probably be arrested on your way out. And make no mistake, there may not be official channels, but you will be the talk of the Courthouse if you make a scene for any reason and you Judge will likely hear about it.
4. Should I appear and answer a Petition my ex-wife/girlfriend/brother0in-law/husband brought against me? Sounds like another trick question, but it is not. You may not always want to appear to answer a Petition. For instance, certain jurisdictional defects might dictate that you not appear, or only put in a special appearance to contest the jurisdiction of the Court. If you appear and don’t raise the objection, you may very well waive the issue. Be very careful about this, only a licensed attorney should make a decision to not appear or to make a special appearance to challenge jurisdiction. The question is simply to technical for the average non-lawyer to answer. When in doubt, get an attorney.
5. Should I get an attorney? This is an easy one… YES! You should get an attorney. if you can afford an attorney, retaining one to represent you is your safest option. Attorneys know the rules, the system, and are familiar with all the players in the system. They can answer your legal questions, explain your options, and carry out your instructions to give you the best chance of coming out of this in reasonably good shape. If you cannot afford an attorney, call your local Bar Association and ask if they can refer you to either the local assigned counsel program, volunteer lawyer program, or an attorney who might represent you for free. Contrary to popular belief, attorneys do a tremendous amount of free legal work. If the Bar Association can’t help you, ask the Family Court for a referral to the assigned counsel program when and if you appear. The Court is always happy to make the referral, though you may or may not qualify.
In short, the worst thing to do is ignore the matter if you are summoned to appear in Family Court. Retain an attorney if you have the means, seek help from the system if you do not. Family Court can be a scary place, but with some research ahead of time, and some common sense, you can get through it. And one last tidbit… bring a book! Family Court is always a slow process and you just might make it through that novel you started two years ago and couldn’t find time to finish.