Article 4 Volume 3 Flashcards
431- PRELIMINARY PROCEDURE ON WARRANT.
When a respondent is taken into custody on a warrant issued by the NYC Family court, he shall be brought before the court __________ if taken into custody in NYC.
lf taken into custody outside of NYC, he shall be taken before a family court judge in __________
issuing the warrant ……. that county
431- PRELIMINARY PROCEDURE ON WARRANT.
When a respondent is taken into custody on a warrant issued by a Family court outside of NYC, he shall be brought before __________ if taken into custody in that county.
lf taken into custody outside the issuing county, he shall be taken before a __________ judge in that county
the court issuing the warrant…. family court
432- PROCEDURE BEFORE COURT.
The court before whom a respondent is brought (MAY/SHALL) require an undertaking (bail) or may place the respondent in custody until the hearing commences
MAY
433- HEARING.
At the start of the hearing the respondent is informed of the contents of the petition, his right to counsel, and shall be given an opportunity to be heard and to present witnesses.
The court (MAY/SHALL) exclude the public from the courtroom
MAY
433- HEARING.
lf the initial return of a summons or warrant is before the judge of a court where the support is an issue, the court (MAY/MUST) make an immediate temporary or permanent order of support
MUST
433- HEARING.
TELEPHONE OR VIDEO TESTIMONY
The court may permit a party who lives within New York State to testify via the telephone or by audio-visual technology (camera mounted on a computer or by videoconferencing). Parties in Interstate Child Support proceedings also have this same right [see FCA 580-316(f)]. Telephonic testimony is permitted when:
(a) one party does not live in the ____________ where the hearing is being held and does not live in a county which borders the county where the hearing is being held (NYC is treated as one county).
(b) one party is ____________
(c) ______________ for a party or witness to testify at the family court where the hearing is pending.
county……..incarcerated. ……… undue hardship
433- HEARING.
TELEPHONE OR VIDEO TESTIMONY
The testimony (MAY/MUST) be recorded and preserved for transcription (same as for all testimony).
MUST
433- HEARING.
TELEPHONE OR VIDEO TESTIMONY
- The Family Court Uniform Rules have added a provision which sets out a procedure for telephonic hearings. Rule 205.44
- The parties must submit an application to appear by telephone/video at least _________ before
- The party requesting to appear by telephone/video must submit all financial disclosure _______ of hearing
three (3) days……in advance
434 - ORDER FOR TEMPORARY CHILD SUPPORT.
Temporary Order of Support- If after the first appearance the case is adjourned, the court (MAY/MUST) issue a temporary order of support. FCA 434.
The court shall make an order for temporary child support pending a final determination in an amount to meet the needs of the child, regardless of the financial information of the respondent not being furnished to the court
MUST
434 - ORDER FOR TEMPORARY CHILD SUPPORT.
The court shall make an order for temporary child support pending a final determination in an amount to meet the needs of the child, regardless of the financial information of the respondent not being furnished to the court
434 - ORDER FOR TEMPORARY CHILD SUPPORT.
The court shall make an order for temporary child support pending a final determination in an amount to meet the needs of the child, regardless of the financial information of the respondent not being furnished to the court
434A- ORDER FOR TEMPORARY SPOUSAL SUPPORT.
The court (MAY/SHALL) make an order for temporary spousal support pending a final determination, regardless
MAY
435- PROCEDURE; ADJOURNMENT; CONFIDENTIALITY OF REQUESTS.
Hearings are conducted by the court without a jury or by a support magistrate. Such hearings may be adjourned to make further inquiries.
435- PROCEDURE; ADJOURNMENT; CONFIDENTIALITY OF REQUESTS.
Hearings are conducted by the court without a jury or by a support magistrate. Such hearings may be adjourned to make further inquiries.
435- PROCEDURE; ADJOURNMENT; CONFIDENTIALITY OF REQUESTS.
lf the support magistrate adjourns the hearing they (MAY/SHALL) make a temporary order of support pending final determination and may require an undertaking from the respondent to appear or in the default thereof commit the respondent until the hearing resumes but only by confirmation by a judge
SHALL
435- PROCEDURE; ADJOURNMENT; CONFIDENTIALITY OF REQUESTS.
- Reports prepared by the probation service for use by the court at any time prior to the making of an order of disposition shall be deemed confidential information which the court in a proper case may, in its discretion, withhold from or disclose to the support magistrate, child’s attorney, counsel, party in interest, or other appropriate person.
- Such reports may not be made available to the court prior to a determination that the respondent is ______________ under this article for the support of the petitioner.
liable
436- COMPETENCE OF SPOUSE.
Wives and husbands (MAY/MAY NOT) testify against each other in these proceedings and may testify to non-access in such a hearing.
MAY
437 - PRESUMPTION OF SUFFICIENT MEANS.
A respondent is presumed to be able to support his or her spouse and children under the age of ___________
TWENTY-ONE (21)
437-A REFERRAL TO WORK PROGRAMS.
New law requiring unemployed support obligors to seek employment or participate in job training, employment counseling etc. An exception is made if such obligor is in receipt of __________ or __________
SSI or Social Security disability
438- COUNSEL FEES
The court may allow counsel fees at ______________ of the proceeding
any stage
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
Consent of the parties (IS/IS NOT) needed for their article 4, 5 matter to be heard before a Support Magistrate
IS NOT
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
Except for specific matters, support magistrates shall be empowered to hear, determine and grant any relief within the powers of the court in any proceeding under
- article (4),
- article 5, 5A and
- 5B (5c maybe until 08/31/2023?) and
- sections 234 (Compensation and liability for support and care in counties outside the city of New York, and
- 235 Compensation and liability for support and care in counties within the city of New York.)
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
Except for specific matters as mentioned below, support magistrates shall be empowered to hear, determine and grant any relief within the powers of the court in any proceeding under this article (4), article 5, 5A and 5B (5c maybe until 08/31/2023?) and sections 234 (Compensation and liability for support and care in counties outside the city of New York, and 235 Compensation and liability for support and care in counties within the city of New York.)
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
Support Magistrates cannot decide:
- A support collection unit’s denial of a challenge - maybe?
- Commitment
- Contested paternity: hearing a paternity case when a party raises the defense of equitable estoppel, however, the support magistrate may hear a paternity case from start to completion in all other situations, including default orders, presumption of legitimacy and contested matters.
- Custody and Visitation
- Orders of protection
- Exclusive possession of the home
- Determinations of parentage made pursuant to section 581-407 “Insufficient surrogacy agreement.” of this act
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
Support Magistrates cannot decide:
1. A support collection unit’s denial of a challenge - maybe?
2. Commitment
3. Contested paternity
hearing a paternity case when a party raises the defense of equitable estoppel, however, the support magistrate may hear a paternity case from start to completion in all other situations, including default orders, presumption of legitimacy and contested matters.
4. Custody and Visitation
5. Orders of protection
6. Exclusive possession of the home
(May be changing 08/31/2023) determinations of parentage made pursuant to section 581-407 “Insufficient surrogacy agreement.” of this act
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
The magistrates do have the power to hear and decide motions and issue summonses and subpoenas to produce persons, administer oaths and direct parties to engage in disclosure as will expedite the disposition of issues
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
The magistrates do have the power to hear and decide motions and issue summonses and subpoenas to produce persons, administer oaths and direct parties to engage in disclosure as will expedite the disposition of issues
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
They can make a determination that a person is in willful violation of an order and can recommend commitment (incarceration), but it shall have no force and effect unless confirmed by a judge
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
They can make a determination that a person is in willful violation of an order and can recommend commitment (incarceration), but it shall have no force and effect unless confirmed by a judge
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
Support magistrates can hear issues of uncontested paternity and must advise the parties of the right to counsel and blood genetic marker or other DNA tests.
They can make an order of filiation as long as paternity is ____________________
Any order of filiation (MAY/SHALL) also be accompanied by a final or temporary order of support
not denied……….. SHALL
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
Objections
Specific written objections to a final order of a support magistrate may be filed by either party within __________ after receipt of the order in court or_________ after the mailing of the order. The party objecting must also serve a copy of their objections on their opposing party who shall have __________ to serve and file a written rebuttal to such objections
THIRTY (30) DAYS……. Five (35) DAYS……. THIRTEEN (13) DAYS
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
Objections
A judge must rule within _________ of the rebuttal being filed or the time to file a rebuttal expiring (time when it could have been filed) and shall do one of the following:
- Remand one or more issues of fact to the support magistrate
- Make with or without holding a hearing, his or her own findings
- Deny the objections
FIFTEEN (15) DAYS
Write it as a timeline: (30 or 35) - 13 -15
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
Parties (MAY/MAY NOT) File an objection to a temporary (INTERLOCUTORY) order
MAY NOT
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
An objection should be granted only when the judge determines that the support magistrate ABUSED HIS/HER DISCRETION in arriving at their decision OR if there are mistakes of fact such as mistakes in calculations
439 POWERS OF MAGISTRATES (MAY CHANGE 08/2023)
An objection should be granted only when the judge determines that the support magistrate ABUSED HIS/HER DISCRETION in arriving at their decision OR if there are mistakes of fact such as mistakes in calculations
The chief administrator of the courts shall promulgate rules for the selection, appointment and compensation of support magistrates (YES, IT IS THE CHIEF ADMINISTRATOR, SO THE CPLR SAYS)
***Support magistrates shall be attorneys admitted to practice law at least _________ , they shall be appointed for a term of __________ and may be reappointed for subsequent terms of ___________ **
three years… three years….. three years…. five years*
439A- EXPEDITED PROCESS.
Expedited process is a process in effect in the family court which reduces the normal time of support order ______________________
establishment
440 Order of support.
Any support order issued shall direct that payments made to a spouse or child on _______ be made through the support collection unit
public assistance
440 Order of support.
Retroactive- all support orders are effective as of the date the ________ is filed
PETITION
440 Order of support.
Findings of Fact- All final orders entered by a Support Magistrate must contain a detailed _______ which explains how the magistrate made the decision.
findings of fact
440 Order of support.
If there is an acknowledgment of PARENTAGE (paternity), the court must ask the parties if it has been duly filed, and, if not, the clerk must file it within _________ days.
FIVE (5)
440 Order of support.
Payments shall be enforced in accordance with ____________
CPLR 5242
440 Order of support.
Payments shall be effective as of the earlier of the date of the filing of the petition or if the children that are entitled to support are on _________ then the day they were eligible for such assistance
public assistance
440 Order of support.
Retroactive child support may be due in _______ payments
periodic
440 Order of support.
For the purposes of enforcement of child support orders or combined spousal and child support orders a “default” shall be deemed to include amounts arising from _____________ support.
retroactive
440 Order of support.
**The court shall require any person chargeable with support to provide:
- His or her ___________________
- Name and address of their _____________
- Any changes in where they _____________ or how much they are making**
social security number …… employer ……… work
440 Order of support.
The court can issue an income execution/income deduction against the payor unless _______________ is shown not to
good cause
440 Order of support.
All support orders must include _______ point bold type informing the respondent that willful failure to obey the order may after court hearing result in commitment to jail for a term not to exceed ________ for contempt of court and that they have a right to seek a modification of the child support order upon a showing of:
- A substantial change in circumstances; or
- _________ have passed since the order has been entered or last modified; or
- There has been a change in either party’s gross income by _________ or more since the order has been entered or last modified
Eight (8) ……. SIX (6) MONTHS……… Three years……15%
440 Order of support.
Take note: as per FCA 451 2(b)ii)…. a reduction in income shall not be a ground for modification unless it was _______ and the party has made diligent efforts to secure employment
involuntary
440 Order of support.
The court shall direct that a copy of any child support or combined child and spousal support order be provided promptly to the _________
state case registry
440 Order of support.
Any order of support made by the court shall provide for_______ benefits
health insurance
- ORDER DISMISSING PETITION-
If the allegations in the support petition are not established, the court shall _____ the petition.
If a ___________ petition was also filed then the court will retain jurisdiction and continue on with the neglect proceeding
dismiss………. neglect
- ORDER OF SUPPORT BY A SPOUSE
lf a court orders after a hearing that a husband or wife are to support their spouse, then they must do so as the court directs and keep the court aware of changes in their ____________ and to notify the support collection unit of the same
address
443 ORDER OF SUPPORT BY PARENT
This section deals with an order of support by a parent and repeats the basic requirements previously covered, i.e.: providing social security number, name of employer etc. lf the order is on behalf of a person on public assistance the respondent shall also provide telephone number, driver’s license number, phone numbers of employers etc.
443 ORDER OF SUPPORT BY PARENT
This section deals with an order of support by a parent and repeats the basic requirements previously covered, i.e.: providing social security number, name of employer etc. lf the order is on behalf of a person on public assistance the respondent shall also provide telephone number, driver’s license number, phone numbers of employers etc.
443 ORDER OF SUPPORT BY PARENT
Service of a supplemental petition for an order payable through the Support Collection Unit (SCU) is valid by regular _______ alone at the address last known to SCU or the address of their employer last known.
However, note that if the petition is a supplemental violation petition, the court cannot make an order of _________ on default if service was by mail alone even there is proof of actual notice
first-class mail….. commitment
443 ORDER OF SUPPORT BY PARENT
Any such order shall also include, where available, the _____________ of each child on whose behalf support has been ordered.
security number
445- ORDER OF SUPPORT BY RELATIVE
The court can order a relative including a step-parent to be liable for support
445- ORDER OF SUPPORT BY RELATIVE
The court can order a relative including a step-parent to be liable for support
446- ORDERS OF PROTECTION
The court may make an order of protection under this part. (T/F?)
True
446-A FIREARMS; SURRENDER AND LICENSE SUSPENSION, REVOCATION AND INELIGIBILITY
Upon the issuance of an order of protection, temporary order of protection or upon a violation of such order, the court shall make a determination regarding the suspension and revocation of a license to carry _____________
a firearm
447- ORDER OF VISITATION.
In the absence of an order of custody or visitation entered by the supreme court, the family court may make such an order which will terminate upon the making of an order in supreme court unless the supreme court decides to maintain the order of the family court
447- ORDER OF VISITATION.
In the absence of an order of custody or visitation entered by the supreme court, the family court may make such an order which will terminate upon the making of an order in supreme court unless the supreme court decides to maintain the order of the family court
448- ENFORCEMENT BY INCOME DEDUCTION
The Family Court is authorized to enforce orders of support by_________ as directed by CPLR 5241 and CPLR 5242
income deduction
449- EFFECTIVE DATE OF ORDER OF SUPPORT.
The effective date of spousal support is the date of the _______.
The effective date of child support is the earlier of the date of filing the petition or when such children became eligible for _________
filing of the petition…….. public assistance
413 - ONE-TIME ADJUSTMENT OF CHILD SUPPORT ORDERS ISSUED PRIOR TO SEPTEMBER 15, 1989.
Any party to a child support order issued prior to September 15, 1989 on the behalf of a child in receipt of public assistance or child support services pursuant the social services law may request that the support collection unit undertake one review of the order for adjustment purposes pursuant to social services law.
413 - ONE-TIME ADJUSTMENT OF CHILD SUPPORT ORDERS ISSUED PRIOR TO SEPTEMBER 15, 1989.
Any party to a child support order issued prior to September 15, 1989 on the behalf of a child in receipt of public assistance or child support services pursuant the social services law may request that the support collection unit undertake one review of the order for adjustment purposes pursuant to social services law.
413 - ONE-TIME ADJUSTMENT OF CHILD SUPPORT ORDERS ISSUED PRIOR TO SEPTEMBER 15, 1989.
- A hearing on the adjustment of such order shall be granted upon the objection of either party.
- An order shall be adjusted if as of the date of the support collections review, the correct amount of child support would deviate by at least _______ from the child support ordered in the last permanent order
TEN (10) %
413 - ONE-TIME ADJUSTMENT OF CHILD SUPPORT ORDERS ISSUED PRIOR TO SEPTEMBER 15, 1989.
A new order will also be issued if the current order does not include ____________ through insurance or otherwise
health care needs
413 - ONE-TIME ADJUSTMENT OF CHILD SUPPORT ORDERS ISSUED PRIOR TO SEPTEMBER 15, 1989.
Any party shall have ________ from the date of mailing to file written objections to an adjusted support order. The party filing the objection shall have the burden of proof by a __________________ at a hearing which shall be scheduled
THIRTY-FIVE (35) DAYS………… preponderance of the evidence
413 - ONE-TIME ADJUSTMENT OF CHILD SUPPORT ORDERS ISSUED PRIOR TO SEPTEMBER 15, 1989.
lf the court receives no specific written objections to the support order within _______ of the mailing of the proposed order, the clerk of the court shall immediately issue the order without any further review and shall immediately transmit copies of the order of support to the parties and to the support collection unit
THIRTY-FIVE (35) DAYS
413 - ONE-TIME ADJUSTMENT OF CHILD SUPPORT ORDERS ISSUED PRIOR TO SEPTEMBER 15, 1989.
A motion to vacate an order of support adjusted pursuant to this section may be made no later than _______ after an adjusted support order is executed by the court where no specific written objections to the proposed order have been timely received by the court.
Such motion shall be granted only upon a determination by the court issuing such order that _______________ was not timely obtained over the moving party.
FORTY-FIVE (45) DAYS………… personal jurisdiction
xx
413 - ONE-TIME ADJUSTMENT OF CHILD SUPPORT ORDERS ISSUED PRIOR TO SEPTEMBER 15, 1989.
Such motion shall be granted only upon a determination by the court issuing such order that personal jurisdiction was not timely obtained over the moving party.
413-A REVIEW AND COST OF LIVING ADJUSTMENT OF CHILD SUPPORT ORDERS
Any party to a child support order issued on behalf of a child in receipt of ________________ or child support enforcement services may request the support collection unit review the order for cost of living adjustment purposes
public assistance
413-A REVIEW AND COST OF LIVING ADJUSTMENT OF CHILD SUPPORT ORDERS
A COLA (cost of living adjustment) shall be made by the support collection unit if the sum of the annual average changes of the CPI-U (consumer price index for urban consumers) is _________ OR GREATER
TEN PERCENT (10%)
413-A REVIEW AND COST OF LIVING ADJUSTMENT OF CHILD SUPPORT ORDERS
The cost of living adjustment and adjusted child support obligation amount as calculated by the review shall be reflected on the adjusted order issued by the support collection unit and mailed to the parties by _________ .
first class mail
413-A REVIEW AND COST OF LIVING ADJUSTMENT OF CHILD SUPPORT ORDERS
Objections to a COLA must be made within ________ from the date of mailing of the adjusted order.
The court shall conduct a hearing and make its determination no later than __________ from the date it receives the objection
THIRTY-FIVE (35) DAYS…… FORTY-FIVE (45) DAYS
413-A REVIEW AND COST OF LIVING ADJUSTMENT OF CHILD SUPPORT ORDERS
Where a hearing results in the issuance of a new order of support, the effective date of the court order shall be the (EARLIER/LATER) of the date of the court determination or the date the cost of living adjustment would have been effective had it not been challenged.
earlier
413-A REVIEW AND COST OF LIVING ADJUSTMENT OF CHILD SUPPORT ORDERS
(FROM SOS 111-n) Any cost of living adjustment resulting from a review shall be effective _______ following the date of the adjusted order, or _______ after the date of the order under review, whichever is later.
sixty (60) days….. twenty-four months
413-A REVIEW AND COST OF LIVING ADJUSTMENT OF CHILD SUPPORT ORDERS
No order shall be adjusted or reviewed for a COLA earlier than ______ since its issuance or last adjustment or modification
TWENTY-FOUR (24) MONTHS
