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 & 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.
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.
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.
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.