FCA 2024 V1 Family Court Act PDF

FAMILY COURT ACT  ARTICLE ONE - FAMILY COURT ESTABLISHED PART 1 - APPLICABILITY OF ACT AND CREATION OF COURT 112 - Applicability The family court act applies in all counties of the state of New York 113 - Establishment of court The family court of the state of New...

FAMILY COURT ACT  ARTICLE ONE - FAMILY COURT ESTABLISHED PART 1 - APPLICABILITY OF ACT AND CREATION OF COURT 112 - Applicability The family court act applies in all counties of the state of New York 113 - Establishment of court The family court of the state of New York is established in each county of the state as part of the unified court system of the state 114 - Exclusive original jurisdiction "Exclusive original jurisdiction" means the proceedings over which the family court is given such jurisdiction must be originated in the family court as described in this act. This however in no way limits or impairs the jurisdiction of the Supreme Court 115 - Jurisdiction of family court The family court has exclusive original jurisdiction over: 1. Abuse and Neglect proceedings (Article 10) 2. Support proceedings (Article 4) 3. Paternity proceedings and support for children out of wedlock (Article 5) 4. Termination of parental rights to guardianship and custody by reason of permanent neglect, or by reason of mental illness or developmental disability (new), and severe and repeated child abuse, or the death of one or both parents where no guardian has been awfully appointed, or by reason of abandonment of the child for a period of SIX (6) MONTHS prior to the filing of the petition, where the child is under the jurisdiction of the family court 5. A person in need of supervision (Article 7) 6. Proceedings concerning juvenile delinquency (Article 3) The family court has such other jurisdiction including but not limited to: 1. Habeas corpus proceedings 2. Support, maintenance and distribution of marital property and custody when referred to the family court from the Supreme Court 3. Conciliation proceedings 4. Proceedings concerning physically handicapped, or mentally defective or retarded children FCA 1 - 1  And lastly over additional matters as is provided by law such as: 1. Adoption and custody (Article 6) 2. UIFSA (Article 5B) 3. Foster care and custody (10A) 4. Former foster children (10B) and Destitute children (10C) 5. Guardianship and custody 6. Interstate compact on juveniles and placement of children 7. Uniform child custody jurisdiction and enforcement The family court and the criminal court have concurrent jurisdiction over family offenses (SHESMADS, etc.), but you already knew that The family court has the power to suspend driving privileges, recreational licenses and permits of persons who are delinquent in child and/or spousal support obligations or persons who have failed to comply with summonses, subpoenas or warrants relating to child support or paternity 116 - Religion of custodial persons and agencies The court when practicable shall place children with associations, agencies, societies and appointed guardians of the same religious faith or persuasion as that of the child 117 - Parts of court There is established in a family court a "CHILD ABUSE PART". Such part shall be held separate from all other proceedings. Cases involving child abuse shall be transferred to such part unless there are matters pending in another part involving members of the same family or household. o In that case, the judge presiding over those matters can hear the child abuse allegations as well. There is established in the family court in the city of NY at least one "DESIGNATED FELONY ACT PART" Outside the city of NY all proceedings involving such an allegation shall have a hearing preference over every other proceeding in the court with the sole exception of proceedings under article 10 (Abuse and Neglect). The chief administrator of the courts may establish one or more separate SUPPORT PARTS for the purpose of expediting support proceedings There will also be established a “JUVENILE DELINQUENCY” PART. Article three will go into this in great detail. FCA 1 - 2 118 - Seal The seal of the family court consists of the words "Family court of the state of NY" followed by the name of the county using the seal. 119 - Definitions "A duly authorized association, agency, society or institution" means a society for the prevention of cruelty to children duly incorporated under the laws of this state or any institution supported or controlled by the state duly empowered to care for children which: 1. Is incorporated under the laws of this state 2. Actually has its place of business or home within the state 3. Is approved, visited, inspected and supervised by the department of family assistance A person legally responsible for the child's care - includes the child's custodian, guardian or any other person responsible for the child's care Infant or minor - person who has not attained the age of Eighteen (18) 120 - Expenses of the court All expenses of the court including judicial and non-judicial salaries within the city of NY are a city charge and outside the city of NY are a county charge Exception, take note: Salaries of support magistrates appointed to compel support shall be a state charge payable out of funds appropriated to OCA PART 5 - GENERAL POWERS 151 - Judges as magistrates Judges of the family court are magistrates 152 - Power to administer oaths Each family court judge may administer oaths and take acknowledgments. They may also designate an official of his court to do so as well A judge may dispense with placing a minor under oath prior to taking testimony FCA 1 - 3 153 - Subpoena, warrant, and other process to compel attendance A family court can issue a subpoena or a warrant to secure or compel the attendance of a person and may also admit to, fix or accept bail or parole him pending completion of the hearing or proceeding A family court can also issue a subpoena duces tecum (for books or records) in accordance with the CPLR 153A - Warrant of arrest; when and how executed A warrant of arrest may be executed on any day of the week, at any hour of the day or night. Unless encountering physical resistance, the officer making the arrest must inform the person that a warrant for his arrest has been issued. Upon request the officer must show him the warrant although the officer is not required to have the warrant in his possession. The officer may use physical force to affect the arrest as necessary. He may enter a premise after giving notice of his authority and purpose of entry, even by force if needed 153B - Service of process request for order of protection Whenever the petitioner requests an order of protection, the summons and petition and the order of protection if issued may be served on any day of the week, at any hour of the day or night. This is usually done by a police officer or peace officer, who will then file with the court an affirmation, certificate or affidavit of service or attempted service if unable to serve successfully **Transmission of facsimile or other electronic means may be used for expedited service** 153C - Temporary order of protection Any person who appears at the family court requesting an order of protection is entitled to file a petition without delay on that same day. The hearing for the order of protection may occur that same day as well, but no later than the next day the family court is open The chief administrator of the courts may promulgate rules to establish and implement a pilot program for the filing of petitions for temporary orders of protection by electronic means and for the issuance of such orders ex-parte by audio-visual means in order to accommodate litigants for whom attendance at court to file for, and obtain emergency relief would constitute an undue hardship or to accommodate litigants, for whom traveling to and appearing in the courthouse to obtain emergency relief, creates a risk of harm to such litigant. FCA 1 - 4 154 - State-wide process The family court is a statewide court and can send process to any county within the state with the same force and effect as in the originating county The family court can even send process outside the state for proceedings to establish paternity or to modify or enforce support The family court can also send process outside the state for service of an order of protection or if a violation of an order of protection is alleged under article 4,5,6,8 or 10 even though the person is not a resident of the state as long as: 1. The act or acts giving rise to the order of protection occurred in the state 2. The applicant for an order of protection resides or has contacts within the State Service upon a non- resident or non-domiciliary of a petition and summons shall be made at least TWENTY (20) DAYS before the return date When service is effected on an out of state respondent, and the respondent defaults by failing to appear, the courts on its own motion or upon the application of any party, including the attorney for the child, proceed to a hearing with respect to the issuance or enforcement of the Order of Protection 154A - Service of petition In every proceeding a copy of the petition shall be served upon the respondent at the time of service or at the first court appearance 154B - Order of protection; answer and counter-claims; confidentiality of address In every proceeding where an order of protection is sought, the respondent can file an answer to the petition and a counterclaim to be heard on the same day, and to be served on the petitioner no later than FIVE (5) DAYS before the return date. Hint: "Talk to the hand" (five finger response for five days)- not to be confused with a single, middle finger response The court upon its own motion or upon motion of any party can authorize the address of any party or child to remain confidential. Pending such a finding the address will be safeguarded and sealed If a party resides in a program for victims of domestic violence, the address of such program shall not be revealed The court shall designate the clerk of the court or other disinterested person upon their consent as agent of process for the party with the confidential address, who will then forward such necessary documents to them FCA 1 - 5 154C - Orders of protection; procedural requirements Any order of protection or temporary order of protection issued under articles three, four, five, six, seven, eight, ten and ten-A of this act shall plainly state the date that such order expires. Any motion to vacate or modify an order of protection shall be on notice to the nonmoving party and the child's attorney if any Where the issuance of an order of protection requires a judicial finding or consent of the respondent party, a temporary order of protection may be issued ex-parte 154D - Emergency powers; local criminal courts A local criminal court may on an ex-parte basis issue a temporary order of protection pending a hearing in the family court provided that a sworn affidavit is submitted: 1. Alleging the family court is not in session 2. Alleging a family offense has been committed 3. Alleging a family offense petition has been filed or will be filed the next day 4. the family court is in session 5. Showing good cause The petitioner shall be advised of the option to proceed in the family court and (upon the filing of an accusatory instrument) in the criminal court at the same time or one or the other The criminal court must then make the matter returnable in the family court on the next day they are in session, but in no event more than FOUR (4) CALENDAR DAYS Any temporary order of protection issued shall also expire not more than FOUR (4) CALENDAR DAYS after its issuance The criminal court must also immediately forward to the family court in a manner designed to arrive prior to the return date there, a copy of the temporary order of protection and affidavit The same general rules apply concerning the modification of an order of protection in the local criminal court except there has to be a showing that the current order of protection is insufficient for the purposes of protection. **This is an exception to the general rule that modifications of orders of protection need to be on notice as stated in 154-c, for here it is ex-parte** FCA 1 - 6 154E - Orders of protection; filing and enforcement of out-of-state orders A valid order of protection or temporary order of protection issued by a court of competent jurisdiction in another state, shall be afforded full faith and credit and enforced as if issued by a court within the state An order under this section is considered valid if: 1. The issuing court had personal jurisdiction over the parties and the subject matter 2. The person against whom the order is issued against had reasonable notice and an opportunity to be heard prior to its issuance Such orders or temporary orders of protection described herein when accompanied by a sworn affidavit that such order is still in effect and has not been vacated or modified, may be filed without fee with the clerk of the family court who shall transmit such order to the statewide registry 155 - Arrested adult **If an adult respondent is arrested under this act when the family court is not in session, he shall be taken to the most accessible magistrate and arraigned** The magistrate thereafter may commit such respondent to the custody of the sheriff, admit to fix or set bail, or parole him for a hearing before the Family Court The protected party in whose favor the order of protection or temporary order of protection is issued, may not be held to violate an order issued in his or her favor, nor may such protected party be arrested for violating such order 155A - Admission to bail A desk officer in charge at a police station, county jail or police headquarters, or any of his or her superior officers may take cash bail for a person's appearance before the appropriate court the next morning from any person arrested on a family court warrant. There is a special rule for when this can occur: 1. Between 11:00AM through the night to 8:00AM the next morning, or 2. In NYC, between 2:00PM through the night to 8:00AM the next morning The amount of bail set is the amount fixed in the warrant and if an arrest occurs outside of the above hours the respondent would be brought directly to the family court to answer the warrant 156 - Contempts The provisions in the judiciary law for civil and criminal contempt's do apply here in the family court act as well FCA 1 - 7 157 - Interpretation of this part If there is any conflict in the application of any provision in this part with a provision for a proceeding elsewhere in the FCA. The article governing that proceeding in the FCA controls 158 - Protective custody of material witness; duration (KNOW THIS) The family court may place in protective custody a person under the age of SIXTEEN (16) YEARS OLD who is a material witness No order of protective custody may extend for a period of more than FOURTEEN (14) DAYS. For good cause shown the court may renew the order for additional periods of FOURTEEN (14) DAYS, but the total period cannot exceed FORTY-TWO (42) DAYS. **Remember it this way 14 + 14 + 14 = 42 days maximum protective custody** PART 6 - GENERAL PROVISIONS CONCERNING HEARINGS 161 - Days and hours court open; availability of judge The days and hours the court is open shall be provided by rule of court. The rules of the court allow for a judge other than a family court judge to perform a family court judge's functions in specified sections of the act ln certain sections any magistrate is authorized to perform the functions of a family court judge 162- Waiting room for children So far as possible a waiting room with a competent person in charge shall be provided for the care of children brought to the family court FCA 1 - 8 162A - Use of restraints on children in courtrooms This section is still fairly new, so I would know it. Use of restraints Except as otherwise provided below, restraints on children under the age of TWENTY-ONE (21), including, but not limited to, handcuffs, chains, shackles, irons or straitjackets, are PROHIBITED in the courtroom. Exception Permissible physical restraint consisting of handcuffs or foot cuffs that shall not be joined to each other may be used in the courtroom during a proceeding before the court only if the court determines on the record, after providing the child with an opportunity to be heard, why such restraint is the least restrictive alternative necessary to prevent: Physical injury to the child or another person by the child; Physically disruptive courtroom behavior by the child, as evidenced by a recent history of behavior that presented a substantial risk of physical harm to the child or another person, where such behavior indicates a substantial likelihood of current physically disruptive courtroom behavior by the child; or Flight from the courtroom by the child, as evidenced by a recent history of absconding from the court. 163 - Separate hearing when child appears Proceedings, which involve children, shall be heard separately and apart from adult proceedings where practicable 164 - Judicial notice of matters of law; proof of statutes, decrees and decisions of another state or county CPLR rules apply here in the family court act regulating judicial notice, authentication and proof of records 165 - Procedure lf no method of procedure is provided by this act, the rules of the administrative board of the judicial conference or the CPLR will control FCA 1 - 9 166 - Privacy of records Family court records are not open to indiscriminate public inspection, however the court in its discretion may permit inspection of any papers or records Any duly authorized agency, association, society or institution to which a child is committed may cause an inspection of the record of investigation 167 - Effect of personal appearance Unless a person makes an objection to the manner of service, the appearance in court by such person is conclusive proof that the summons was duly served 168 - Notice of order of protection When the family court issues an order of protection or temporary order of protection the clerk of the court shall issue a copy of such order to the petitioner and respondent or any other person affected by the order The presentation of the copy of an order of protection or temporary order of protection, warrant or certificate of warrant to any peace officer or police officer shall constitute the authority to arrest the person charged with violating such order The clerk of the court shall file with the sheriff's office or police department in the county where the petitioner resides a copy of the order of protection or temporary order of protection Any order of protection or temporary order of protection shall clearly bear the language on the front page of the order as follows: "this order constitutes an order of protection" lt shall also contain the following notice: "This order of protection will remain in effect even if the protected party has, or consents to have, contact or communication with the party against whom the order is issued. This order of protection can only be modified or terminated by the court. The protected party cannot be held to violate this order nor be arrested for violating this order." The absence of such language shall not affect the validity of such order FCA 1 - 10 169 - Translation and interpretation of orders of protection. The office of court administration shall ensure that a court order of protection and temporary order of protection issued by the court is translated in writing into the appropriate language for a party to a proceeding where the court has appointed an interpreter. The office of court administration shall ensure that the standard language of the office of court administration order of protection and temporary order of protection forms shall be translated in writing in the languages most frequently used in the courts of each judicial department. A copy of the written translation shall be given to each party in the proceeding, along with the original order or temporary order of protection issued in English. A copy of this written translation shall also be included as part of the record of the proceeding. The court shall read the essential terms and conditions of the order aloud on the record and direct the court appointed interpreter to interpret the same terms and conditions. Such written translation or interpretation shall not affect the validity or enforceability of the order. In every case a party to a proceeding shall be provided with an English copy of any court order of protection or temporary order of protection issued. PART 7 - PROCEEDINGS IN COUNTIES OTHER THAN ORIGINAL COUNTY 171 - Enforcement or modification of orders in other county An order of the family court in any county may be enforced or modified in that county or in the family court in any county in which the party affected by the order resides or is found 172 - Commencement of enforcement and modification proceedings in other county When a county other than the county in which an order was made is going to enforce or modify such order, the petition must have an original or certified copy of the original order attached FCA 1 - 11 173 - Inter-county probation Inter-county probation lf a new County takes over a family court proceeding and does not transfer it back to the original court, then it will keep the case and have the original court send them the entire file 174 - Inter-county probation The family court can transfer a proceeding to any other county for good cause where the proceeding might have been originated 175 - Inter-county probation A violation of probation that occurs in a county other than the county in which the order of probation was made can be heard in that county or the county which made the order 176 - Inter-county probation When a person placed on probation lives in another county, or a person already on probation wants to move to another county in the state, the family court can transfer the proceedings for the supervision of probation to the new county where the probationer now or will reside The new probation department will assume all the powers and duties of the original issuing probation department FCA 1 - 12  ARTICLE TWO - ADMINISTRATION, MEDICAL EXAMINATIONS, ATTORNEYS FOR CHILDREN PART 1 – ADMINISTRATION 211 - Administration and operation of family court Article 7-A of the judiciary law dictates the administration and operation of the family court 212 - Rules of court Family court rules are statewide and prepared by the administrative board of the judicial conference 213 - Reports to administrative board, legislature and governor The family court in each county shall report statistics and such to the administrative board who then reports to the legislature Example: The number of children removed or placed under article 10 214 - Chief administrator to prescribe forms; electronic filing in family court **The CHIEF administrator shall prescribe forms for the administration of this act** HINT: Don’t get tricked by “state” administrator The Chief Administrator may promulgate rules authorizing a program in the use of electronic means ("e-filing") in the family court for: 1. The origination of proceedings in such court, and 2. The filing and service of papers in pending proceedings. Except as otherwise provided, participation in this program shall be strictly voluntary and will take place only upon consent of all parties in the proceeding; except that failure of a party or other person who is entitled to notice of the proceedings to consent to participation, shall not bar any other party from filing and serving papers by electronic means upon the court or any other party or person entitled to receive notice of such proceeding who has consented to participation. FCA 2 - 1  No party shall be compelled, directly or indirectly, to participate in e-filing. All parties shall be notified clearly, in plain language, about their options to participate in e- filing. Where a party is not represented by counsel, the clerk, that would be you, yes you, shall explain such party's options for electronic filing in plain language, and shall inquire whether he or she wishes to participate The Chief Administrator may eliminate the requirement of consent to participation in this program in family courts of not more than SIX (6) counties for: A. The filing with the court of a petition originating a juvenile delinquency proceeding under article three of this act by a presentment agency B. The filing with the court of a petition originating in a proceeding to determine abuse or neglect by a child protective agency; and C. The filing and service of papers in proceedings specified in (A) and (B) above where such proceedings were originated in the court by electronic filing. The Chief Administrator shall not eliminate the requirement of consent to participation without the consent of each authorized presentment agency, child protective agency of an affected county, the family court bar providing representation to parents, and the family court bar providing representation to children in any county in which such elimination shall apply. Where the Chief Administrator eliminates the requirement of consent he or she shall afford counsel the opportunity to opt out of the program, via presentation of a prescribed form to be filed with the clerk of the court where the proceeding is pending. Said form shall permit an attorney to opt out of participation in the program under any of the following circumstances, in which event, he or she will not be compelled to participate: 1. Where the attorney certifies in good faith that he or she lacks the computer hardware and/or connection to the internet and/or scanner or other device by which documents may be converted to an electronic format; or 2. Where the attorney certifies in good faith that he or she lacks the requisite knowledge in the operation of such computers and/or scanners necessary to participate. 215 - Continuance in office of non-judicial personnel Upon the creation of the family court, employees working in domestic relations court and children's court will be transferred to the family court to continue their work FCA 2 - 2 216A - Clerk of court There Shall be a clerk of the court in every family court in every county, who shall keep the court records and seal 216B - Petition forms **The clerk of the court shall give petition forms to any person requesting them** 216C - Preparation of petitions Whenever a petitioner is not represented by counsel, any person who assists in the preparation of a petition shall include all the allegations presented by the petitioner No clerk or probation officer shall prevent a person from immediately filing a petition Any questions as to whether the family court has jurisdiction over a particular matter is to be determined by the court and therefore all petitions must be accepted and filed Exception: Section 216C does not apply to juvenile delinquency proceedings 217 - Orders; filing and service Family court orders shall be in writing and signed with the judge's signature or initials The original order shall be filed with the clerk of the family court that made the order The court shall file or direct the filing of the order within TWENTY (20) DAYS of the decision of the court or within TWENTY (20) DAYS of the settlement of the order on notice The court shall direct service of a copy of an order in whatever manner it deems appropriate; if no direction is given then the rules of the CPLR apply When the court directs the clerk to serve an order the clerk shall note in the court record the manner and date of service as well as who was served FCA 2 - 3 PART 2 - SUPPORT BUREAU; DUTIES TO COOPERATE 221 - Support collection unit; local probation department Establishes the Support Collection Unit. The support collection unit (“SCU”) may collect, enforce, and seek modification of orders of support. 228 - Cooperation by banks and other fiduciary institutions Cooperation by banks and other fiduciary institutions. Banks and other fiduciary institutions are authorized and required to report to the court, when so requested, full information relative to any fund therein deposited by a petitioner or respondent in a proceeding under articles four or five of this act. 229 - Cooperation by employer Cooperation by employer. Employers are authorized and required to report to the court, when so requested, full information as to the earnings of a petitioner or respondent in a proceeding under articles four or five of this act. PART 3 - ATTORNEYS FOR CHILDREN 241 - Findings and purpose Minors who are subject to family court proceedings or appeals should be represented by counsel of their choosing or by assigned counsel 242 - Attorney for the child “Attorney for the child" refers to attorneys admitted to practice law in the state of NY and designated to represent minors” 243 - Designation OCA may enter into an agreement with a legal aid society to provide attorneys to represent children for the family court or appeals from family court proceedings The appellate division of the Supreme Court can designate a panel of attorneys or enter into an agreement with other qualified attorneys to serve as attorneys for children as necessary. lt may invite a bar association to make recommendations of qualified attorneys for this purpose FCA 2 - 4 244 - Duration of designation An agreement between OCA and the legal aid society may be terminated upon notice SIXTY (60) DAYS prior to termination No designation of a panel of attorneys to act as attorneys for children shall be for more than ONE (1) YEAR, however successive designations may be made 245 - Compensation Attorneys for children shall be compensated and allowed expenses on a cost basis as part of the legal aid society, an appointed panel of attorneys or individually as counsel 246 - Supervision by administrative board The administrative board of the judicial conference may provide standards for the exercise of powers granted to the appellate division under this part 248 - Appropriations The costs of "attorneys for children" shall be payable by the state of NY 249 - Appointment of attorney for child KNOW THIS ln the following proceedings an "attorney for the child" MUST be appointed if no other counsel is representing the minor: Article 3 Juvenile Delinquency Article 7 Persons in need of supervision (PINS) Article 10 Child protective proceedings including 10A,10B and 10C In other matters involving the revocation of an adoption consent, certain social service law proceedings or whenever a minor is to be placed in protective custody The respondent is NOT ALLOWED to waive counsel in proceedings involving placement of a juvenile delinquent or person in need of supervision or continued commitment to the custody of commissioner of mental health or the commissioner of people with developmental disabilities In any proceeding under article ten-B of this act (Former Foster Care Youth Re- entry Proceedings), the family court shall appoint an attorney to represent a youth, FCA 2 - 5  under the age of TWENTY-ONE (21), who is the subject of the proceeding, if independent legal representation is not available to such youth Generally, the court will try to appoint the same attorney who may have previously represented that child. If a JD proceeding is begun as a result of a removal to the family court pursuant to CPL725, then the attorney who represented the child in criminal court shall be appointed as the "attorney for the child" in the family court 249A - Waiver of counsel A minor in a JD, PINS or any proceeding where the minor is detained under the interstate compact for juveniles, is considered to lack the knowledge and maturity to waive the appointment of an attorney. After the "attorney for the child" is appointed, a hearing can be held to determine this further. There needs to be clear and convincing evidence (the highest civil quantum of proof): 1. The minor understands the charges and what dispositions can occur and the possible defenses to these charges 2. The minor possesses the maturity, knowledge and intelligence to conduct his own defense 3. The waiver is in the best interest of the minor 249B - Rules of court The chief administrator of the courts shall promulgate rules for the workload standards of attorneys for children, including the number of children they can represent at any one time to ensure the children are receiving effective assistance of counsel within legal and ethical mandates. These attorneys will also receive initial and ongoing training PART 5 - AUXILLARY SERVICES 251 - Medical examinations After a petition is filed the family court may order any person involved in the matter in any way to submit to an examination of their mental and or physical state The court can even remand a person for this purpose or direct them to appear: To the department of health of the city of NY for a NYC family court To a hospital maintained by the county for a family court in that county To a hospital maintained by the state of NY To a qualified private institution approved by the local social service department Remands for examination shall be for periods not exceeding THIRTY (30) DAYS FCA 2 - 6 252 - Probation service The family court in each county shall have a probation service. Whenever possible a probation officer of the same religious faith as the child shall be assigned. They are there to assist the court in all proceedings under this act 252A - Fees The probation department is entitled to a fee for conducting an investigation in an amount of not less than FIFTY (50) DOLLARS nor more than FIVE HUNDRED (500) DOLLARS from the parties based on their ability to pay. Such fee may be apportioned between the parties or even waived. This is unusual as Family Court proceedings are generally cost free. 253 - Auxiliary services The family court in any county shall have such other auxiliary services as will serve the purposes of this act and as are within its authorized appropriation. 254A - Procedure for district attorney presentation The county attorney or the corporation counsel (in NYC) can enter into an agreement with the district attorney to present a case in support of a petition alleging a designated felony act had been committed. Such agreement must meet the approval of the mayor within NYC or the respective County Executive outside the city 255 - Cooperation of officials and organizations Schools and other public organizations or officials shall cooperate with the needs of the family court 256 - Visitation, inspection and supervision by state department of social services or board of social welfare Any child placed or committed shall be subject to visits or inspections from state board of social welfare or department of social services FCA 2 - 7 PART 6 - COUNSEL FOR INDIGENT ADULTS THIS PART IS VERY IMPORTANT – KNOW IT 261 - Legislative findings and purpose Certain proceedings in the family court allow for counsel to be appointed to those who cannot afford it. They have a right to such counsel and must be informed of such right and given an opportunity to have counsel appointed or have the matter adjourned to confer with counsel of their choice 262 - Assignment of counsel for indigent persons social welfare Article 18B of the county law provides for the implementation of the assignment of counsel The following parties have a right to counsel: 1. The respondent in a proceeding under article 10,10-A or 10-C, 2. The petitioner in Visitation of minors in foster care (part B Art. 10] 3. **The petitioner AND respondent in Article 8 (Family offenses) - KNOW THIS!** 4. The respondent in custody matters (part 3 Art. 6) 5. The parent or person having legal custody of a child under Article 10,10A, 10B or 10C 6. The parent of a child seeking custody or contesting right to custody 7. A person the subject of a contempt proceeding 8. The parent of a child who opposes an adoption of that child 9. The respondent in a proceeding under Article 5 (paternity) 10. Or any other proceeding where the court feels assignment of counsel is mandated by the constitution of NYS or the United States FCA 2 - 8  ARTICLE THREE - JUVENILE DELINQUENCY PART ONE - JURISDICTION AND PRELIMINARY PROCEDURES 301.1 - Purpose The purpose of this article is to establish procedures in accordance with due process of law To determine whether a person is a juvenile delinquent and To issue an appropriate order of disposition for any person who is adjudged a juvenile delinquent. In any proceeding under this article, the court shall consider the needs and best interests of the respondent as well as the need for protection of the community. THIS AREA LEFT INTENTIONALLY BLANK FCA 3 - 1 301.2 - Definitions JUVENILE DELINQUENT JD1: A person at least TWELVE (12) AND LESS THAN EIGHTEEN YEARS OF AGE (12-17), having committed an act that would constitute a crime if committed by an adult; or JD2: A person OVER SIXTEEN (16) AND LESS THAN EIGHTEEN (18) YEARS OF AGE (16 & 17) having committed an act that would constitute a violation if committed by an adult, where such violation is alleged to have occurred in the same transaction or occurrence of the alleged criminal act; or JD3: Aggravated murder Aggravated criminally negligent A person over THE AGE homicide OF SEVEN (7) AND Aggravated vehicular homicide LESS THAN TWELVE Murder 1 & 2 (12) YEARS OF AGE (7- Aggravated manslaughter 1 & 2 11) having committed an Manslaughter 1 & 2 act that would constitute Vehicular manslaughter 1 & 2 one of the following crimes, if committed by an adult, AND AT LEAST ONE (1) of the two following situations: AAA MAMV 1. The person is not criminally responsible for such conduct by reason of infancy; OR 2. The defendant is in an action ordered removed from a criminal court to the family court FCA 3 - 2  DESIGNATED FELONY ACTS Designated felony act means the following acts committed by a person THIRTEEN (13), FOURTEEN (14), FIFTEEN (15), SIXTEEN (16), OR SEVENTEEN (17) YEARS OF AGE, if done by an adult, would be a crime or such conduct committed as a sexually motivated felony. MAKA RACA RAM M MURDER 1 & 2 A ARSON 1 & 2 K KIDNAP 1 & 2 (2nd degree must involve use or threat of deadly physical force) A ATTEMPTED MURDER 1 & 2 R RAPE 1 A ASSAULT 1 C CRIMINAL SEXUAL ACT 1 A AGGRAVATED SEXUAL ABUSE 1 R ROBBERY 1 A ATTEMPTED KIDNAP 1 M MANSLAUGHTER 1 OR FCA 3 - 3 When a person who is FOURTEEN (14), FIFTEEN (15), SIXTEEN (16), OR SEVENTEEN (17) YEARS OF AGE commits the following acts or such conduct committed as a sexually motivated felony: BURGLARY 1 & 2 ROBBERY 2 POSSESSION OF MACHINE GUN, LOADED FIREARM, DISGUISED GUN, OR FIVE OR MORE FIREARMS ON SCHOOL GROUNDS OR [The following two acts can only be designated felonies with a prior finding that person committed an assault 2, a robbery 2 or any designated felony act (regardless what the age was at the commission of the prior act)] When a person who is FOURTEEN (14), FIFTEEN (15), SIXTEEN (16), OR SEVENTEEN (17) YEARS OF AGE of commits: ASSAULT 2 ROBBERY 2 OR Other than a misdemeanor committed by a person at least TWELVE (12) BUT LESS THAN EIGHTEEN (18) YEARS OF AGE, but only where there have been two prior findings by the court that such person has committed a prior act which, if committed by an adult, would be a felony. FCA 3 - 4 Detention - The temporary care and maintenance of children away from their own homes in a facility certified by the division for youth as a detention facility. Secure detention facility - A facility characterized by physically restricting construction, hardware and procedures. Designated class A felony act - A designated felony act that would constitute a class A felony if committed by an adult. Secure Facility – A facility characterized by Physically restrictive construction, hardware and procedures and is designated as a secure facility by the division of youth. Most jail-like facility. Fact-finding hearing - A hearing to determine whether the respondent or respondents committed the crime or crimes alleged in the petition or petitions. (Think of this as the TRIAL) Dispositional hearing - A hearing to determine whether the respondent requires supervision, treatment or confinement. Hint: SuTreCon Presentment Agency - The agency or authority which is responsible for presenting a juvenile delinquency petition. They are as follows: PRESENTMENT AGENCY The agency or authority which is responsible for presenting a juvenile delinquency petition IN NYC CORPORATION COUNSEL OUTSIDE NYC COUNTY ATTORNEY ONLY ON DESIGNATED DISTRICT ATTORNEY FELONY ACT Incapacitated Person - A respondent who, as a result of mental illness, or intellectual or developmental disability, lacks the capacity to understand the proceedings against him/her or to assist in his/her own defense. FCA 3 - 5  Aggravated circumstances - Where a child has been either severely or repeatedly abused; or Where a child has subsequently been found to be an abused child within FIVE (5) YEARS after return home following placement in foster care as a result of being found to be a neglected child provided that the respondent or respondents in each of the foregoing proceedings was the same; or Where the court finds by clear and convincing evidence that the parent of a child in foster care has refused and has failed completely, over a period of at least SIX (6) MONTHS from the date of removal, to engage in services necessary to eliminate the risk of abuse or neglect if returned to the parent, and has failed to secure services on his or her own or otherwise adequately prepare for the return home and, after being informed by the court that such an admission could eliminate the requirement that the local department of social services provide reunification services to the parent, the parent has stated in court under oath that he or she intends to continue to refuse such necessary services and is unwilling to secure such services independently or otherwise prepare for the child's return home; provided, however, that if the court finds that adequate justification exists for the failure to engage in or secure such services, including but not limited to a lack of child care, a lack of transportation, and an inability to attend services that conflict with the parent's work schedule, such failure shall not constitute an aggravated circumstance; or Where a court has determined a CHILD FIVE (5) DAYS OLD OR YOUNGER was abandoned by a parent with an intent to wholly abandon such child and with the intent that the child be safe from physical injury and cared for in an appropriate manner Permanency Hearing - An initial hearing or subsequent hearing held for the purpose of reviewing the foster care status of the respondent and the appropriateness of the permanency plan developed by the Commissioner of Social Services or the Office Of Children And Family Services. Designated educational official – The DEO shall mean an employee or representative of a school who is designated to receive records pursuant to this article and to coordinate the student's participation in programs which may exist in the school district or community. 301.3 - Applicability of article to actions and matters occurring before and after effective date The provisions of this article apply to: All juvenile delinquency actions and proceedings commenced upon or after the effective date of this article and all appeals and other post- judgment proceedings FCA 3 - 6  All juvenile delinquency actions and proceedings commenced prior to the effective date of this article but still pending on such effective date appeals and other post-judgment proceedings commenced upon or after such effective date which relate or attach to juvenile delinquency actions and proceedings commenced or concluded prior to such effective date provided that, if application of such provisions in any particular case would not be feasible or would work injustice, the provisions of article seven pertaining to juvenile delinquency actions apply thereto, as such article seven read immediately prior to the effective date of this article. 302.1 - Jurisdiction Family Court has EXCLUSIVE ORIGINAL JURISDICTION to determine if a person is JD. Age at time act committed controls. With respect to a person over SIXTEEN (16) AND LESS THAN EIGHTEEN (18) YEARS OF AGE, whenever a crime and a violation arise out of the same transaction or occurrence, a charge alleging both offenses shall be made returnable before the court having jurisdiction over the CRIME. Where a proceeding had been commenced in the youth part of a superior court for an act alleged to have been committed prior a person’s EIGHTEENTH (18) BIRTHDAY and then had been removed to family court, the family court shall exercise jurisdiction under this article, even if the respondent may be over the age of EIGHTEEN (18) prior to the proceeding having commenced in the family court. 302.2 Statute of limitations A juvenile delinquency proceeding must be commenced within the period of limitation prescribed in section 30.10 of the criminal procedure law or before the respondent's eighteenth (18) birthday, whichever occurs earlier. When the alleged act constitutes a designated felony or is an act allegedly committed when the respondent was aged sixteen (16) years or older, such proceeding must be commenced within such period of limitation in section 30.10 of the criminal procedure law or before the respondent's twentieth (20) birthday, whichever occurs earlier. When a proceeding had been commenced in the youth part of a superior court for an act alleged to have been committed prior to his or her eighteenth (18) birthday and then had been removed to family court, a proceeding commenced for an act allegedly committed when the respondent was aged sixteen (16) years or older must be commenced within statute of limitation in section 30.10 of the criminal procedure law or prior to the respondent's twentieth (20th) birthday, whichever occurs earlier, regardless of whether the action had originally been commenced prior to the respondent's eighteenth (18) birthday in a youth part of a superior court. FCA 3 - 7  JUVENILE DELINQUENCY STATUTE OF LIMITATIONS Type of Proceeding Statute of Limitation Basic Juvenile Delinquency CPL 30.10 SOL or TWENTIETH (20) proceeding birthday, whichever is earlier Designated felony or is an act CPL 30.10 SOL or TWENTIETH (20) allegedly committed when the birthday, whichever is earlier respondent was aged SIXTEEN (16) YEARS OR OLDER When a proceeding had been CPL 30.10 SOL or TWENTIETH (20) commenced in the youth part of a birthday, whichever is earlier superior court for an act alleged to have been committed prior to his or her eighteenth (18) birthday and then had been removed to family court, a proceeding commenced for an act allegedly committed when the respondent was aged SIXTEEN (16) YEARS OR OLDER 302.2 - Venue JD proceedings SHALL be originated in the county in which the ACT or ACTS referred to in the petition OCCURRED. Upon motion of the respondent or the appropriate presentment agency the family court in which the proceedings have been originated may order, for good cause shown, that the proceeding be transferred to another county. Any motion for removal made by the respondent must be made within THIRTY (30) DAYS of the initial appearance. Any motion for removal made by the presentment agency must be made within THIRTY (30) DAYS of the origination of the action Unless the case involves a DESIGNATED FELONY, after a fact-finding, the dispositional hearing MAY be transferred to the respondent’s county of residence. FCA 3 - 8 303.1 - Criminal Procedure Law The criminal procedure law DOES NOT apply to JD proceedings UNLESS the FCA specifically states that it does apply. However, the court may consider judicial interpretations (case law) of appropriate provisions of the criminal procedure law, to the extent that it may assist the court in interpreting similar provisions of the FCA. This is different than the rule for the CPLR, which applies automatically, unless the FCA has set out a specific procedure. 303.2 - Double Jeopardy The Provisions of CPL 40 state that a person may not be twice prosecuted for the same offense. This is the extent to what you should be familiar with. THIS APPLIES TO FCA ARTICLE 3 303.3 - Affirmative Defenses The provisions of the PL articles mentioned inside the parenthesis will be available as a defense in JD proceedings. They are: 1. Duress - Undue influence, threats, violence committed against them to do something against their will 2. Justification - Legal right to use force to protect yourself or another person 3. REnunciation - To decide that you do not want to be part of a criminal enterprise anymore and you completely withdraw from it. You have to make an effort to prevent the event from occurring. (e.g. going to the police and reporting an act that will happen to prevent it 4. Mental defect - Lacked the capacity to understand the nature and consequences of their conduct or conduct was wrong Use the memory tool below: JD AFFIRMATIVE DEFENSES: DJ REM (Dropping mad beats at an astonishing rate) D Duress J Justification RE Renunciation M Mental defect FCA 3 - 9 304.1 - Detention Know this! Detention facilities MUST BE APPROVED BY OCFS - Office of Children and Family Services No child shall be detained in any prison, jail, lockup, or other place used for adults convicted of crime or under arrest and charged with crime without the approval of the office of children and family services The detention of a child under THIRTEEN (13) YEARS OF AGE in a secure detention facility SHALL NOT be directed, unless such child is at least TEN (10) YEARS OLD and is considered a juvenile delinquent (This new statute implies, as the old statute stated explicitly, that there shall be no secure detention of a child under TEN (10) YEARS OF AGE) The detention of a child adjudicated solely for an act that would constitute a violation SHALL NOT be directed A detention facility receiving a child MUST IMMEDIATELY notify the parent of the child's location. 304.2 - Temporary order of protection Upon application of the presentment agency the court may issue a temporary order of protection against a respondent: Ex parte or upon notice Any time the juvenile is taken into custody Upon the issuance of an appearance ticket Upon the filing of a petition Such order of protection is not a finding of wrongdoing and may remain in effect until an order of disposition is entered If a TOP is issued before the filing of a petition, it may remain in effect only for THIRTY (30) DAYS. It may be extended for an additional THIRTY (30) DAYS If the juvenile’s case is being adjusted, the TOP may remain in place during that period. o If the juvenile successfully completes adjustment before the expiration of the order, any party may move to vacate the order Any application for an extension of a temporary order of protection under this section shall be on notice to the juvenile, who shall have an opportunity to be heard and shall have a right to counsel FCA 3 - 10 305.1 - Custody by a private person A private person can take a child WHO MAY BE THE SUBJECT OF AN ART 3 PROCEEDING for committing an act that would be a crime if committed by an adult into custody. (Think of it as a private security guard in a residential area who detains the child for committing an act that if committed by an adult would constitute a crime.) Before taking such a child under the AGE OF SIXTEEN (16) into custody, a private person must inform the child of the cause thereof and require him to submit, except when he is taken into custody on pursuit immediately after the commission of a crime. This private person must WITHOUT UNNECESSARILY DELAY (immediately) take the child to: 1. The child’s home, 2. A police or peace officer, or 3. Family court. Hint: They must be taken to the HO, the PO, or the CO 305.2 - Custody without a warrant by police or peace officer If a police officer takes a child subject to an article 3 JD proceeding into custody without a warrant, he must IMMEDIATELY notify the parent or person responsible for the child’s care After, the officer must either: A. Give the child an appearance ticket and return him to his parents, OR B. Take him with all reasonable speed (IMMEDIATELY)TO FAMILY COURT located where in the county in which the act was committed, OR The officer SHALL NOT take the child to the police station first If the family court is not in session, take him to the most accessible MAGISTRATE, if any, designated by the appellate division of the supreme court, unless the officer determines that it is necessary to question the child first. i. In which case, the officer shall take the child to a facility designated by the chief administrator of the courts as a suitable place for questioning children. Upon the consent of the parent or PLR, the officer may take the child to the child’s residence for questioning for a REASONABLE PERIOD OF TIME. C. C. Take the child to a facility certified by the division of youth as a JUVENILE DETENTION FACILITY, OR D. If taken into custody for prostitution offenses, take the child to an available short term safe-house, OR E. If it appears the child is a sexually exploited child, take the child to an available short-term safe house, but only if the child consents to be taken. (e.g. forced prostitution), OR FCA 3 - 11  F. On designated felony, the child must be taken to family court or to a facility designated by the division for questioning. (Basically, if the family court is open, the child will be taken to the court. If it’s not open, the child will be brought to a facility designated by the division for questioning) OR All questioning (interrogation), including giving notice of rights, shall be recorded on video G. In all other cases, the youth must be released with an appearance ticket Child CANNOT be questioned without being read his Miranda rights 306.1 - Fingerprinting Arresting officer MUST take prints if: Child is TWELVE OR OLDER - CHARGED WITH A OR B FELONY Child is THIRTEEN OR OLDER - CHARGED WITH C, D OR E FELONY Whenever fingerprints are taken, palmprints and photos can be taken Upon the taking of fingerprints, the appropriate officer or agency shall, without unnecessary delay, forward such fingerprints to the division of criminal justice services and shall not retain such fingerprints or any copy thereof. Copies of photographs and palmprints taken pursuant to this section shall be kept confidential and only in the exclusive possession of such law enforcement agency, separate and apart from files of adults. FINGERPRINTING Required Minimum Age for Required Minimum Charge for Fingerprinting Fingerprinting TWELVE (12) OR OLDER A or B Felony THIRTEEN (13) OR OLDER C, D, E Felony FCA 3 - 12 306.2 - Fingerprinting – Duties of DCJS Fingerprints Must be forwarded immediately to DCJS who will search its records for information concerning an adjudication or pending matter involving the person arrested. DCJS will promptly transmit its report and findings regarding the arrested person to the forwarding officer or agency. Upon receipt of a report from DCJS, the recipient officer shall send TWO (2) COPIES to the family court in which the proceeding is pending and TWO (2) COPIES to the presentment agency (family court’s version of the DA). The Presentment agency shall then provide a copy to counsel for the respondent. (This is similar to the CPL) 307.1 - Appearance Ticket An appearance ticket is a written notice given to a respondent, after his/her arrest, to appear at a designated probation service in connection with the child’s alleged commission of a crime. If the respondent is alleged to have committed a designated felony act, the return date of the appearance ticket must be no more than SEVENTY-TWO (72) HOURS after the issuance of the appearance ticket, excluding Saturdays, Sundays and public holidays. In all other situations the return date must be within FOURTEEN (14) DAYS after issuance. A copy of the family court appearance ticket shall be forwarded by the issuing person or agency to the complainant, respondent, respondent's parent/PLR, and appropriate probation service within TWENTY-FOUR (24) HOURS after its issuance. The appearance ticket procedures take place before the filing of a petition. The probation service may “adjust” (settle the matter) certain cases without the approval of the court (no petition has been filed at this point. The court is not involved.) These procedures do not take place for every arrest; a respondent may be detained initially or a petition may be filed. DESIGNATED FELONY CASES ARE NOT ADJUSTABLE. They are brought right to court. SEE TABLE ON NEXT PAGE. FCA 3 - 13  APPEARANCE TICKETS Type of Offense Return Date Designated Felony Within SEVENTY-TWO (72) HOURS, excluding Saturdays, Sundays, Holidays All other Offenses Within FOURTEEN (14) DAYS Within TWENTY-FOUR (24) HOURS of issuance, the appearance ticket shall be forwarded to the complainant, respondent, respondent’s parent/PLR, and the probation service 307.2 - Failure to Appear If the child (alleged perp) [or complainant] fails to appear on the return date, the probation service may REFER the matter to the Presentment Agency OR may attempt to secure the attendance of the child [or complainant] (phone call, letter to parent). If the probation service has not secured the child’s attendance within SEVEN (7) DAYS, the case MUST be referred to the Presentment Agency. 307.3 - Pre-Petition Detention If a child is brought to a detention facility BEFORE a petition has been filed, the following procedures apply: 1. Detention Facility MUST release the child if: a. the events occasioning the taking into custody do not appear to involve allegations that the child committed a delinquent act. 2. If the child has not been released under sub. (1) above, and it appears the child did commit a delinquent act, then the Detention Facility MAY release the child WHEN PRACTICABLE. 3. When practicable, in all other situations, if the child is so released, an APPEARANCE TICKET must be issued. 4. If the child is NOT RELEASED, he/she MUST be brought before the Family Court and if the Family Court is not in session, the youth shall be brought to the most accessible magistrate, if any, designated by the appellate division of the supreme court in the applicable department. a. However, if a magistrate is not available, such youth shall be brought before such family court within SEVENTY-TWO (72) hours or the next day court is in session, whichever is SOONER. FCA 3 - 14 307.4 - Pre-Petition Hearing If a child in custody is brought to the family court before a petition is filed, the judge shall hold a hearing to determine if the court has jurisdiction over such child At such hearing an "attorney for the child" MUST be appointed if no other counsel has appeared After the hearing the judge shall order the release of the child to parents or guardian if: The court does not appear to have jurisdiction The child does not appear to have committed a delinquent act The acts committed do constitute juvenile delinquency, but the court does not find or state the facts, which would support detention Such hearing will be held within SEVENTY-TWO (72) HOURS of the time the detention began or the next day the court is in session whichever is sooner Within FOUR (4) DAYS of the conclusion of this "hearing following detention”, a petition shall be filed and a probable cause hearing may be held if the respondent denies the charges. If the petition is not filed within the FOUR (4) DAYS, the child shall be released... (This is similar to CPL 170.70 Or 180.80) Upon a finding of facts and reasons to support detention the court shall also determine and state in any order directing detention: Whether continuation of the child in the child's home would be contrary to the best interests of the child With the need for protection of the community, whether reasonable efforts were made prior to the date of the court hearing to prevent or eliminate the need of the removal of the child from his or her home 308.1 - Rules of court for preliminary procedure The purpose of having the child appear before a probation officer is to see if the case can be “adjusted” and avoid a delinquency proceeding. DESIGNATED FELONIES shall not be adjusted without written approval from the Court. FCA 3 - 15  The following offenses shall not be adjusted where the child has previously had ONE (1) OR MORE adjustments of a case in which such child allegedly committed one of the following acts unless probation has received written approval from the court and the appropriate presentment agency: Reckless endangerment 1 Sexual abuse 1 Coercion 1 Criminal possession of a dangerous weapon 1 Manslaughter 2 Criminal possession of a weapon 2 & 3 Rape 3 Arson 3 Criminal sexual act 3 Burglary 3 Robbery 3 Efforts at adjustment pursuant to rules of court under this section may not extend for a period of more than THREE (3) MONTHS without leave of the court which may extend the period for an additional TWO (2) MONTHS If the case is NOT adjusted by the probation service, they must notify the Presentment Agency WITHIN FORTY-EIGHT (48) HOURS, OR THE NEXT COURT DAY, WHICHEVER OCCURS SOONER. The probation service shall consider the views of the complainant and the impact of the alleged act or acts of juvenile delinquency upon the complainant and upon the community in determining whether adjustment under this section would be suitable. If the respondent is found to have not committed an act which would constitute a juvenile offense, designated felony, or any of the [above] acts, then it may be referred to probation for adjustment If a SIXTEEN (16) OR SEVENTEEN (17) YEAR OLD RESPONDENT is found to have only committed a violation, it may be referred to probation for adjustment unless good cause shown 309.1 - Community based treatment referrals. (New) A youth who is released prior to the filing of a petition shall be made aware of and referred to community-based organizations offering various voluntary services Only Information VOLUNTARILY shared by the youth regarding use of such services may be used in the proceedings FCA 3 - 16 310.1 - Presentment Agency Only the presentment agency may originate a JD proceeding: JD petitions are prosecuted by the Office of the Corporation Counsel in NYC. In most other counties, the petitions are prosecuted by the County Attorney. Designated felonies are prosecuted by the district attorney If the appropriate agency does not originate a proceeding within THIRTY (30) DAYS of receipt of notice from the probation service that a case was not adjusted, it shall notify in writing the COMPLAINANT of that fact 310.2 - Speedy Trial After petition filed or on signing of order of removal pursuant to CPL 725, the respondent is entitled to speedy trial (fact finding hearing). 311.1 - Petitions – Definitions and Contents Petition is WRITTEN ACCUSATION by AUTHORIZED PRESENTMENT AGENCY 1. Petition MUST CHARGE AT LEAST ONE (1) CRIME 2. Must contain: a. Name of family court b. Title of action c. Fact that respondent is a person of the necessary age to be a juvenile delinquent d. Separate accusation or count as to each crime charged e. Specific (precise) crimes charged f. That crime charged was committed in designated county g. That each crime was committed on a designated (specific) date at a designated (specific) time h. Plain or concise factual statement in each count supporting crime charged i. Name or names of co-respondents charged j. Statement that respondent requires supervision, treatment or confinement. k. **Signature of appropriate presentment attorney** 3. Petition must be verified (sworn to) 4. If charging a Designated Felony Act - petition must so state, and it must be marked DESIGNATED FELONY ACT PETITION in prominent place. a. Designated Felony Act Petition title is stricken if all allegations are dismissed, withdrawn, or acts are not found to be designated felonies after a hearing. 5. Form of petition is prescribed by Chief Administrator of Courts a. A petition shall be entitled "In the Matter of", followed by the name of the respondent. 6. The Order of removal (from criminal court), when filed with the Clerk of FCA 3 - 17  Court, IS DEEMED THE PETITION. a. **The date such an order is filed with the clerk of the court shall be deemed the date a petition was filed** b. For designated felony acts, the clerk shall annex to the order a sufficient statement and marking to make it a designated felony act petition c. All minutes of any hearing inquiry or trial held in this action, the minutes of any grand jury proceeding and the minutes of any plea accepted and entered shall be transferred to the family court within THIRTY (30) DAYS. If a petition is not sufficient, it is subject to dismissal by the court unless it can be properly amended 311.2 - Sufficiency of Petition A petition, or a count thereof, is sufficient on its face when: it substantially conforms to the requirements prescribed the allegations of the factual part of the petition, together with those of any supporting depositions provide reasonable cause to believe that the respondent committed the crime or crimes charged; and non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged and the respondent's commission thereof. 311.3 - Petition; Fact-finding Hearings When TWO (2) OR MORE respondents are charged in separate petitions with the same crime or crimes the court shall conduct a single or consolidated fact-finding hearing. Upon motion and good cause shown, they may be held separate If such petitions, in addition to charging the same crime or crimes against the different respondents, charge other crimes not common to all, the court may still conduct a single fact-finding hearing for the crime or crimes common to all. 311.4 - Substitution of Petition or Finding At any time, the court on its own motion or upon motion of the respondent with the consent of the presentment agency may order the substitution of a petition for a "person in need of supervision" FCA Article 7 for a JD petition At the conclusion of the dispositional hearing, the court on its own motion or upon motion of the respondent may substitute a finding that the person is a "person in need of supervision" FCA Article 7 for a finding that the person is a JD FCA 3 - 18  There is new law regarding an arrest for prostitution where the victim meets the criteria for trafficking. Here upon a motion by the respondent without the consent of the presentment agency, a petition for a person in need of supervision shall be substituted for a delinquency petition 311.5 - Amendment of the Petition Any time before or during the fact-finding hearing, the court upon application of the presentment agency with notice to the respondent and opportunity to be heard can amend the petition as to certain defects and errors as long as it does not prejudice the respondent on the merits. Such errors may include matters (and similar matters) of: o Form o Time o Place o names of persons An adjournment request by the respondent must be granted. A petition may not be amended for: Failure to charge or state a crime Legal insufficiency of the factual allegations Misjoinder of crimes 311.6 - Joinder, Severance and Consolidation TWO (2) acts are joinable and can be included in separate counts in same petition when: Based on same act or criminal transaction Different transactions, but proof in one is material to proving the other at fact Finding hearing, Defined by same statutes and are same or similar in law When TWO (2) or more petitions against the same respondent charge different crimes of a kind that are joinable in a single petition the court may, upon application of either the presentment agency or respondent order that such petitions be consolidated and treated as a single petition for trial purposes. (BARD) If a person is charged with TWO (2) or more crimes that are based on different criminal transactions, and if the only reason that the crimes can be tried together is because they are the same or similar in law, then the court can order that the crimes be tried separately. This can be done at the request of either the respondent or the presentment agency FCA 3 - 19 312.1 - Issuance and service of summons After a petition is filed, a summons along with a copy of the petition may be issued directing the appearance of the respondent and parent/guardian /PLR for the Initial Appearance, at the time and place indicated in the summons. **The judge or the clerk of the court signs such summons** Service of the summons and petition shall be made by delivery to the person summoned at least TWENTY-FOUR (24) HOURS before the time stated for appearance. If personal service cannot be made the court may make an order for service in any manner 312.2 - Issuance of warrant The court may issue a warrant for the respondent OR a person legally responsible for his care, after a petition has been filed when: A summons cannot be served; or such person has refused to obey a summons or family court appearance ticket; or The respondent or other person is likely to leave the jurisdiction; or A summons, in the court’s opinion, would be ineffectual; or A respondent has failed to appear Warrant reports - if the court issues a warrant based on the respondent’s failure to appear, the court MUST adjourn the case to a date certain within THIRTY (30) DAYS for a report on the efforts to secure the respondent in court. EFFORTS MUST BE MADE TO HAVE THE WARRANT EXECUTED DURING THOSE THIRTY (30) DAYS The court must issue WRITTEN findings of fact as to the efforts to secure the respondents appearance. If There Are No Efforts to Secure the Respondent, That Can Affect the Presentment Agency’s Case A juvenile who is arrested pursuant to a warrant issued under this section must forthwith and with all reasonable speed be taken directly to the family court located in the county in which the warrant had been issued, or, when the family court is not in session, to the most accessible magistrate, if any, designated by the appellate division of the supreme court in the applicable department. If a juvenile is brought before an accessible magistrate, the magistrate shall set a date for the juvenile to appear in the family court in the county in which the warrant had been issued, which shall be no later than the NEXT DAY the court is in FCA 3 - 20  session if the magistrate orders the juvenile to be DETAINED and within TEN (10) COURT DAYS if the magistrate orders the juvenile to be released. In determining whether the juvenile should be released, with or without conditions, or detained, the magistrate shall issue the findings. The magistrate shall transmit its order to the family court forthwith. 315.1 - Motion to dismiss; defective petition A motion to dismiss the petition as defective may be made by the respondent or the court itself on the grounds of: It does not conform to the requirements of the statute. The allegations demonstrate the court does not have jurisdiction The statute defining the crime is unconstitutional or invalid 315.2 - Motion to dismiss in furtherance of justice A motion to dismiss the petition in the furtherance of justice may be issued upon the motion of the presentment agency, the respondent or the court itself on a variety of different grounds. It must be in writing and filed any time after the filing of the petition. Notice of motion must be served on the opposing party not less than EIGHT (8) DAYS prior to the motion being heard, with answering affidavits filed within TWO (2) DAYS prior to the return date (8-2 Days - Same as a motion in the CPLR) 315.3 - Adjournment in contemplation of dismissal Except for designated felony acts, at any time prior to the conclusion of the fact finding hearing the court may with the consent of the respondent order that the proceeding be "adjourned in contemplation of dismissal" for a period not to exceed SIX (6) MONTHS An order adjourning a petition in contemplation of dismissal may be issued upon motion of the Presentment agency, the Court itself, or the Respondent. Upon issuing such order the reasons must be set forth on the record Upon issuing such an order, the court MUST release the respondent! Such adjournment may specify conditions like the completion of an alcohol awareness program Upon motion by the presentment agency, or the court upon its own motion, the matter may be restored to the calendar. If after SIX (6) MONTHS, it is not restored to the calendar, the petition is deemed to be dismissed in the furtherance of justice FCA 3 - 21  Where an order of fact-finding that includes solely a violation committed by a juvenile SIXTEEN (16) YEARS OF AGE OR SEVENTEEN (17) YEARS OF AGE, there shall be a rebuttable presumption (i.e. this is going to happened unless there is a good argument not to) that the court shall adjourn the case in contemplation of dismissal, refer the case to the probation service for adjustment or dismiss the case. PART TWO – INITIAL APPEARANCE AND PROBABLE CAUSE HEARING 320.1 - The Initial appearance; definition The initial appearance is when the respondent first appears before the court after a petition has been filed and is similar to an arraignment in the criminal court 320.2 - The initial appearance; timing; adjournment and appointment of counsel If the respondent is detained the initial appearance shall be held no later than SEVENTY-TWO (72) HOURS after the petition is filed or the next day the court is in session whichever is sooner If the respondent is not detained, the initial appearance shall be held as soon as practicable and within TEN (10) DAYS of the petition being filed At the initial appearance the court must appoint a "attorney for the child" if no other attorney has appeared The initial appearance may be adjourned for no longer than SEVENTY-TWO (72) HOURS or until the next court day whichever is sooner for counsel to appear The clerk of the court shall notify all counsel of the initial appearance date The respondent must enter an admission or denial and if he refuses the court must enter a denial on his behalf (Sec. 321.1). 320.3 - Notice of Rights The court must inform the respondent of certain rights including the right to "remain silent" and the "right to counsel" 320.4 - The initial appearance; procedures At the initial appearance the court must inform the respondent of the charges contained in the petition and the presentment agency must provide a copy of the petition to him or his counsel. FCA 3 - 22  At the initial appearance it will be determined: Whether detention is necessary Whether the case should be referred to the probation service for possible adjustment If the child is detained, the adjourn date for the probable cause hearing if it has not occurred yet The date of the fact-finding hearing and any such other issues 320.5 - The initial appearance; release or detention At the initial appearance the court may release the respondent or direct his detention If released, there may be terms and conditions of release which is to be provided to the respondent To direct detention of the respondent the court must find that: alternatives to detention would not be appropriate, there is a substantial probability the respondent will not appear in court on the return date or that there is a serious risk that before the return date he may commit an act considered a crime if committed by an adult The court shall use a "detention risk assessment instrument" prior to directing detention and must state the reasons for directing detention particularly when the youth was assessed as a "low" or "medium" risk. The presentment agency may introduce the prior delinquency findings of the respondent if any and if fingerprinted, then the records of such may also be introduced. At the conclusion of the proceeding the fingerprint records are returned to the presentment agency and not made part of the court record The court shall also state in any order directing detention Whether continuation in the respondent’s home would not be in the best interests of the respondent In consideration of the protection of the community whether efforts were made to prevent the removal of the respondent from his home 320.6 - The initial appearance; referral to the probation service. At the initial appearance or at any subsequent appearance, the court may refer a case to the probation service for adjustment services The probation service shall consider the views of the complainant and the impact of the alleged act or acts of juvenile delinquency upon the complainant and upon the community in determining whether adjustment under this section would be suitable. FCA 3 - 23  In the case of a designated felony petition, the consent of the presentment agency shall be required to refer a case to the probation service for adjustment services. Where an order of fact-finding that includes solely a violation committed by a juvenile SIXTEEN (16) YEARS OF AGE OR SEVENTEEN (17) YEARS OF AGE, there shall be a rebuttable presumption that: the court shall refer the case to the probation service for adjustment services, or dismiss the case, or adjourn the case in contemplation of dismissal. 321.1 - Entry of an admission or a denial The respondent must admit or deny each charge and upon remaining mute the court will enter a denial upon the respondent's behalf 321.2 - Admissions to part of a petition; admissions concerning other petitions The respondent may as a matter of right enter an admission to all charges, however with the consent of the court and the presentment agency may enter an admission to a lesser included offense. If it charges more than one crime then again with the consent of the court and consent of the presentment agency they may enter a plea to part of the petition, which constitutes a disposition to the entire petition 321.3 - Acceptance of an admission Before accepting an admission, the court shall advise the respondent of his rights to a fact-finding hearing and must establish that: He committed the acts, which he enters an admission of He is waiving his right to a fact-finding hearing He is aware of the possible dispositions 321.4 - Withdrawal of an admission or denial A respondent who has entered a denial may at any time withdraw the denial at any time before the conclusion of the fact-finding hearing and enter an admission to the entire petition At any time before a dispositional finding, the court may permit the respondent to withdraw his admission restoring the case to its original status needing a fact- finding hearing FCA 3 - 24 322.1 - Incapacitated person; examination reports If the court is of the opinion that the respondent may be an incapacitated person, then the court must issue an order that he be examined. (NEW) Such exam may be conducted on an outpatient basis if the respondent is NOT in custody. If the respondent is in custody at the time the court issues an order of examination, the examination may be conducted at the place where the respondent is being held in custody so long as no reasonable alternative outpatient setting is available. TWO (2) qualified psychiatric examiners shall be ordered for this purpose to determine if he or she may be diagnosed as a person with mental illness or an intellectual or developmental disability. Proceedings will be adjourned until the examination report has been filed with the court, which shall occur within TEN (10) DAYS of the entry of the order. Upon a showing of special circumstances and a finding that a longer period is necessary to complete the examination and report