Family Court Act Breakdown- Session 10

Question 1

Concerning Family Court Act warrants of arrest:
* When can they be served?
* Is there a requirement to notify reason of arrest or show warrant?
* Can you enter the premises of another individual not named on the warrant?
* Must you give notice?

Answer 1

• Served: Any day of the week and any hour of the day or night
• Notify: Must give reason for arrest, must show warrant if in possession or when available
• Entry: You can enter any premises when there is RCTB subject is present (No 3rd party search warrant requirement)
• Announce: Must always knock and announce (No Emergency, Endanger, Escape exceptions)

Question 2

Concerning Family Court Act service of process request for orders of protection:
* When can they be served?
* Who must do the serving?
* Must the server affirm the service of the order?

Answer 2

• Served: Any day of the week and any hour of the day or night
• Who: Peace officers or police officers must serve without a fee if requested to do so
• Affirmation: Server must affirm the proof of service to be true and must state:
  1. Papers were served
  2. Date, time, address
  3. Manner of service
  4. Name and brief physical description of the party served

Question 3

What entitlements does a person have when requesting a temporary order of protection under the Family Court Act

Answer 3

• Entitled to file a petition without delay on the same day

A hearing on that request is to be held same day or next day family court is open

Question 4

What jurisdiction does the family court have under the Family Court Act

Answer 4

May send process or other mandates into any county for service or execution

State-wide

Question 5

Can the family court have jurisdiction over a person who is out of state?

Answer 5

Yes under these circumstances:
* Acts giving rise to application for OOP or violation of OOP occurred within NYS
-and-
* Person applying for the OOP or possessing the OOP resides, is domiciled , or has substantial contacts in NYS

Question 6

Under the Family Court Act, where should an arrested adult be taken when the family court is not in session?

Answer 6

Most accessible magistrate

Question 7

What is the bail condition under the Family Court Act?

Answer 7

• Only if a FAMILY COURT WARRANT OF ARREST is executed between 11:00 a.m. and 8:00 a.m. the next day
• Amount of bail must be on the warrant of arrest
• DO may take cash bail for appearnace at appropriate court the next moring

Question 8

Frequent Question

Regarding material witnesses under the Family Court Act:
* Who can be considered a material witness and placed in protective custody?
* What is the duration of the protective custody order?
* Can it be renewed?
* Maximum total length an individual can be held?

Answer 8

• Persons under 16 years old can be held in protective custody
• Protective custody orders are for 14 days
• Can be renewed a maximum of 2 times
• Max total of 42 days

Question 9

Who must receive copies of an order of protection under the Family Court Act?

Is there any additional parties that may recieve copies?

Answer 9

Must:
* Petitioner
* Respondent
* Any other person affected
-and-
* Sheriff’s office, and local police department in county where petitioner resides

May:
* Clerk of the court may issue a copy of an OP or TOP to PD or sheriff’s office having jurisdiction over any affected party

Petitioner can also file a copy with any PD or sheriff’s office having jurisdiction

Question 10

What constitutes authority for a peace officer to arrest a person under the Family Court Act?

Answer 10

Presentation of a copy of an OP, TOP, WARRANT, or CERTIFICATE OF WARRANT

Question 11

Where can an order of the family court be enforced or modified under the Family Court Act?

Answer 11

• County of issuance
• Any county where the affected party resides or is found

Question 12

What defines a juvenile delinquent?

Answer 12

• At 12 -15 years old having committed a a PL Felony or Misd not listed in JO Offenses
• 16 or 17 years old committing a PL Misd
• 7-11 years old having committed a PL 125 offense other than Crim Negligent Homicide
• A J.O. or A.O (16 or 17 year old who commits a felony) who was removed from Criminal Court to family court

Question 13

What makes an individual a designated felony offender

Answer 13

• Minor charged with a felony in family court
• Has two prior findings of felony by family court

Question 14

What is the statute of limitations for juvenile delinquency proceedings under S 302.2?

Answer 14

• Must be commenced before the respondent’s eighteenth birthday
  -or-
• Twentieth for designated felonies

Also follows standard statute of limitations
Felony- 5
Misd- 2
Petty- 1

Question 15

Where should juvenile delinquency proceedings originate according to S 302.3?

Answer 15

In the county where the alleged act occurred

Can be transferred to another county by order of the court
Ex. Minor charged in Buffalo lives in Nassau

Question 16

Who certifies what sites are considered suitable for the detention of juveniles?

Answer 16

Office of Children and Family Services

• No J.D. shall be detained in any prison, jail, etc used for adults without the approval of Officer of Children and Family Services
• Detention facility recieving a juvenile from a PO must immediately notify the parent or guardian

Question 17

Can a private citizen take a juvenile into custody?

Answer 17

Yes for a Felony or Misdemeanor
* Must inform the reason for detainment, and require them to submit, except for pursuit immediately following a crime
* Must immediately take the child home, to family court, or to a police officer or peace officer

Note: Civilian arrest powers
Felony in fact committed- anywhere in NYS
Other offense in fact committed in presence- county of commission

Question 18

What is the procedure following a police officer or peace officer arresting a Juvenile Delinquent without a warrant or taking possession of a child delivered by a private citizen?

Answer 18

Immediately notify parent or guardian
After making every effort to give notice officer shall:
* Release to parents or other individual by issuing an appearnace ticket to the child and the individual taking custody
-or-
* Before taking the juvenile to the station take them to family court (If child needs to be questioned it needs to be done at a facility approved by Chief Admin. of the Courts, can also be done at childs home)
-or-
* Take the child to a location certified for detention fo juveniles by Officer of Children and Family Services

No questioning children without parents or guardians present under any circumstances

Question 19

When can you fingerprint a Juvenile Delinquent?

Answer 19

• 12 years old- A or B Felony
• 13, 14, 15 years old- Any felony
• Prints go to DCJS, no copy retained by PD
• Copies of photographs and palm prints must be kept confidential and separate from adult files

Whenever you take fingerprints you can take photos

Question 20

What is a family court appearance ticket as defined in the Family Court Act?

Answer 20

Written notice subscribed by a police officer or peace officer directing a child and responsible adult to appear at a designated probation service regarding alleged commission of crimes

• If crime alleged is a designated felony the return date shall be no later than 72 hours after issuance excluding weekends and public holidays
• If not a designated felony no later than 14 days after issuance

Question 21

What must be contained within petitions concerning Juveniles?

Answer 21

Written accusation by an agency charging at least one crime
Must contain:
* name of court
* title of action
* age of respondent (must be less than 16 at time of the acts
* separate accusations for each crime
* precise crimes
* and more

Question 22

What is the required standard of proof during dispositional hearings under the Family Court Act?

Answer 22

Preponderance of the evidence

Hearsay evidence is allowed, any evidence that is material and relevant

Question 23

Can juveniles be the subject of an order of protection?

Answer 23

Yes
The document may order:
* stay away from residence, school, business, place of employment of victims
* refrain from harassing, intimidating, threatening etc the victim or family members
* refrain from any conduct injurious to a companion animal of the protected party

• OOPs can also be issued for potential witnesses to the juvenile’s crime or crimes
• Remains in effect for a specified period but not longer than any time specified in any order of disposition or order adjourning a proceeding in contemplation of dismissal

Question 24

What happens upon termination of a delinquency action in favor of the respondent?

Answer 24

The clerk of the court shall immediately notify:
* Council of the child
* Director of appropriate charging agency
* Any heads of police dept or probation agency

That all records are to be sealed

Sealed records are available to the respondent or their agents

Question 25

Are police records relating to a juvenile delinquent's arrest publicly disclosed?

Answer 25

* Police records relating to the arrest and disposition of a J.D. shall not be disclosed to the public. * Files shall be kept separate from adult records * Family court in the county of adjudication may order the records open and available to : 1. The respondent or their parent or guardian 2. The judge of the court in which the respondent has been convicted of a crime at another time unless the records have been sealed

Question 26

What is one penalty a family court judge can impose a respondent for failure to pay child support or alimony?

Answer 26

The court may order the Dept of Motor Vehicle to suspend the respondent's driving privileges.

Question 27

What is a 'person in need of supervision' (P.I.N.S.)?

Answer 27

A person less than eighteen years of age who: * does not attend school or is incorrigible, ungovernable, or habitually disobedient * violates P.L. section 230.00 - Prostitution * appears to be a sexually exploited child.

Question 28

Which court has exclusive original jurisdiction over proceedings involving a P.I.N.S.?

Answer 28

The family court has exclusive original jurisdiction.

Question 29

What is the controlling factor for determining the jurisdiction of the court for P.I.N.S.?

Answer 29

The age of the respondent at the time the need for supervision allegedly arose. ## Footnote If the respondent is within the court's jurisdiction but the proceedings began after the respondent's 18th birthday the petition will be dismissed

Question 30

What is the protocol for returning a runaway child?

Answer 30

A peace officer may return any child under eighteen who appears to have run away from home without just cause. ## Footnote A police officer may reasonably conclude a child is a runaway when: * The child refuses to give their name, or the name and address of their parent -or- * The officer has reason to doubt the names or addresses provided by the child

Question 31

Where can a P.I.N.S. be detained?

Answer 31

* A facility authorized by the Office of Children and Family Services | Never a facility that houses adults (jail, prison, lockup)

Question 32

What is the procedure if a P.I.N.S is delivered to an officer by a private citizen?

Answer 32

After making every reasonable effort to notify the parent or guardian: * Release the youth to that individual with the written promise that they will produce the youth before the lead agency designated in that county **-or-** * Take the youth directly to the designated lead agency in the county where act causing the youth to be taken into custody was committed (unless questioning is needed which would be done at a location determined by the Chief Admin of the Courts) **-or-** * Take a youth in need of crisis intervention or respite services to a runaway and homeless youth crisis services program **-or-** * Take the youth to the family court in the county where act causing the youth to be taken into custody was committed

Question 33

What initiates a proceeding to adjudicate whether a person is in need of supervision? Who can originate these proceedings?

Answer 33

**Initiated by the filing of a petition alleging:** * the respondent is a P.I.N.S. **-and-** * requires supervision or treatment. **Originated by:** * a peace officer or police officer * the parent or responsible person * any person injured by the alleged activity * any duly authorized agency

Question 34

What constitutes members of the same household?

Answer 34

* Related by heritage or intimate relationship * Legally married * Formerly married regardless of current residence * Child in common regardless of marital status or residence * Not related by heritage or affinity but have been in an intimate relationship at some point does not have to be sexual in nature

Question 35

When can family court matters be transferred to the criminal court?

Answer 35

At any time with the consent of the petitioner prior to a finding of guilt or innocence if the court determines it is in the interest of justice?

Question 36

# Re: Certificate of Warrant issued by Family Court * What do these warrants direct? * Can they be served by the petitioner? * Do the petitioners get notified if warrants have been issued? * What do these warrants authorize? * When do they expire

Answer 36

* Direct that the respondent be brought before the family court * Generally do not allow the petitioner to serve upon the the respondent unless the court grants permission based on the application of the petitioner * Clerk may issue a certificate of issuance of the warrant to the petitioner * These warrants authorize police officers or peace officers to arrest the respondent and bring them before the family court * They **expire 90 days after issuance**, can be renewed from time to time by the clerk of the court ## Footnote These warrants can be issued without the respondent's knowledge (ex parte) in instances where the respondent fails to pay child or spousal support

Question 37

For what length of time are family court orders of protection in effect?

Answer 37

* A period **not in excess of two years** -or- * A period **not in excess of five years** if the conduct alleged in the petition is in violation of a current valid order of protection

Question 38

Who is responsible for notifying the statewide registry an individuals license to possess firearms has been suspended or revoked as a result of court proceedings?

Answer 38

The court revoking the license is responsible for the notification to the statewide registry and the local law enforcement

Question 39

What happens in instances where family offenses occur subsequent to the issuance of an order of protection?

Answer 39

* This offense shall be deemed a new offense for which a new petition alleging a new offense or violation of the order may be filed * The petitioner may seek to have this new petition filed in the criminal court (Criminal Contempt)

Question 40

What is the definition of 'abused child'?

Answer 40

A child less than 18 years of age whose parent or responsible person inflicts or allows physical injury.

Question 41

What constitutes a 'neglected child'?

Answer 41

A child whose physical, mental, or emotional condition has been impaired due to the failure of a parent or responsible person to exercise a minimum degree of care.

Question 42

Under what circumstances can a child be removed without a court order?

Answer 42

A child can be removed without a court order if: * there is reasonable cause to believe the child is in imminent danger * there is not enough time to apply for an order. ## Footnote Only 3 individuals can remove a child from their parent or guardian's custody without an order: * Police officer * Social Services employee * Physician

Question 43

What must be done after a child is removed without a court order by an authorized individual?

Answer 43

* Bring the child immediately to a place approved by local social services unless person removing is a treating physician and the child is or will be admitted to a hospital * Make every effort to inform the parent or guardian * **Give written notice** to parent or guardian of removal (Personally served at the residence of the child, if that individual is not present notice will be affixed to the door and a **copy shall be mailed within 24 hours**)

Question 44

Who may originate removal proceedings for a child from their parent or guardian's care?

Answer 44

* Child protective agency * A person directed by the court