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Articles: Divorce and Matrimonial Law

New York Supreme Court and New York Family Court:
Understanding the Differences

By J. Douglas Barics
Revised August 2019

Many cases will involve both Family Court and Supreme Court. The role of these two courts is often not obvious, and while they share jurisdiction over several domestic issues, there are significant differences between the two.

1. Jurisdiction

Supreme Court

Supreme Court is New York's trial level court of general jurisdiction, and its basis for existence is the New York Constitution. Despite the name of "Supreme Court," this court is New York's lowest level trial court of general jurisdiction. Cases decided in Supreme Court may be appealed to the appropriate Appellate Divisions. Cases from the Appellate Division may be appealed to the Court of Appeals in located in Albany, which is the highest court in New York.

Each of New York's 62 counties has one Supreme Court, having the authority to hear virtually any kind of case. In addition, Supreme Court is a court of equity, which means the court is authorized to grant relief that is authorized by statute or to structure unique relief that is based on the facts of the case.

Family Court

Family Court is a court created by the state legislature by statute, specifically the Family Court Act. The Family Court's authority to hear cases may therefore be changed by the legislation amending the Family Court Act. Under the Act, the authority of the Family Court is broken down into several Articles, each article being dedicated to one type of case.

(a) Article 3: Juvenile Delinquency

Family Court Article 3 authorizes Family Court to hear Juvenile Delinquency Cases. These are cases in which an authorized agency is brings a proceeding in Family Court against a child under the age of 18, alleging that he or she committed acts that if committed by an adult, would constitute criminal conduct under the Penal Code.

Juvenile Delinquency cases are broken down into two parts, a fact finding hearing during which the court determines whether the presenting agency has proven their case. If they don't the case is dismissed. Prior to fact finding, pre trial discovery and motions are authorized. If the allegations are proven at fact finding, the matter continues with a dispositional hearing under which the court determines what the appropriate resolution is. The child may be placed on probation, released to his or her parents, placed in a group home, or placed in a secure facility. Unlike criminal cases, the disposition is not designed to punish and hence there is no set time a child may be placed away from home. Instead, the court will review any placement periodically and determine if placement should continue or end.

Unlike a criminal case, there is no right to a jury trial under Article 3 proceedings.

(b) Article 4: Child Support and Spousal Support

Article 4 of the Family Court Act governs all support matters. Section 413, which mirrors DRL 240(1-b), provides that a parent is obligated to support their children until the age of 21, according to statutory guidelines based on a percentage of the parent's incomes. FCA Section 418 obligates a step parent to pay child support if the custodial parent is in danger of becoming a public charge. FCA Section 412 provides that a spouse may be chargeable to support a current spouse.

Under the Family Court Act, for both child and spousal support, the Family Court can make initial awards, modify existing orders, and enforce existing orders. Family Court is without authority to enforce any separation agreements, any such agreement must first be reduced to a judgment. It is also possible for an existing Supreme Court order to restrict any future modifications to Supreme Court.

(c) Article 5: Paternity

Family Court has the authority to hear paternity cases and issue orders of paternity. Child support may be awarded under an article 5 petition, retroactive to the date of filing. Prenatal support is also authorized under a paternity proceeding.

(d) Article 6: Custody and Visitation

Family Court has the authority to make initial child custody and visitation awards. It also may modify existing orders, unless a judgment of divorce retains sole jurisdiction to the Supreme Court. While Article 6 of the Family Court Act gives Family Court jurisdiction over custody, the substantive law of custody remains embodied in case law.

Article Six further confers the Family Court jurisdiction over guardianship proceedings. Note that Surrogate's Court has concurrent jurisdiction for guardianship, and that Family Court can grant only guardianship of the person, while Surrogate's Court can grant guardianship of the person and guardianship of the property.

Termination of Parental Rights is also governed by Article 6, in conjunction with Article 384-b of the Social Services Law.

Article Six also confers the Family Court jurisdiction over adoptions. This authority is also shared with the Surrogate's Court.

(e) Article 7: Person's in Need of Supervision (PINS)

A PINS case is a proceeding commenced by a parent against a child, which alleges that the parent cannot control the child.

(f) Article 8: Family Offense Proceedings (Orders of Protection)

Family Court has the authority to hear proceedings seeking an order of protection. The parties must be related in a way listed in FCA Article 8 for the court to have jurisdiction. In addition to Article 8, The Family Court Act grants the Court the authority to grant orders of protection as ancillary relief to proceedings under other Articles besides Article 8.

(g) Article 9: Conciliation Proceedings

The Family Court has the authority to assist married people reconcile and overcome marital difficulties. No known case exists of any individual filing a proceeding under this article.

(h) Article 10: Child Protective Proceedings

An authorized agency my commence a proceeding against parents to have the court rule they have neglected or abused their children. As part of the final relief and as pre trial temporary relief, the agency may remove children and place them in foster care against the wishes of the parents.

(i) General

Note that the power to grant a divorce, and all ancillary relief other than spousal maintenance, child support, custody and visitation was not granted to the Family Court. Therefore Supreme Court retains exclusive jurisdiction over these matters. Nor does the Family Court have jurisdiction over any other case not specifically authorized by the Family Court Act.

2. Procedure

Supreme Court

Procedure in Supreme Court is governed by the Civil Practice Law and Rules (CPLR). In Supreme Court, it is entirely possible for a case to remain in limbo, be marked off calendar, or even dismissed due to procedural errors.

In order to commence an action in Supreme Court, a filing fee of $210.00 is required, at which time an index number is assigned to the case.

In order to have a judge assigned to a case, a form called a Request for Judicial Intervention (R.J.I.) needs to be filed.

When a case is trial ready, a separate form called a Note of Issue is required to place the case on the trial calendar.

In short, the procedural rules alone make a lawyer almost mandatory for any case in Supreme Court.

Family Court

Family Court is designed to be much more user friendly than Supreme Court, and is designed to allow people to represent themselves. There are standardized forms for all pleadings. A person wishing to commence a proceeding in Family Court fills out a form, from which the clerk of the court prepares the necessary papers. There are no special forms required to have a judge assigned, nor is there any additional paperwork to have the case placed on the trial calendar.

A judge is automatically assigned to a case in Family Court, and no additional paperwork needs to be filed to place a case on the trial calendar.

3. Evidence

Supreme Court

Normal rules of evidence apply.

Family Court

There are statutory exceptions to the normal rules of evidence.

4. Caption and Designation of the Parties

Supreme Court

A case in Supreme Court is called an action. The parties to the action are the plaintiff and the defendant. The plaintiff's pleading consists of a complaint. Most pleadings need not be verified. However, all matrimonial actions must be.

Family Court

A case in Family court is called a proceeding. The parties to the action are the petitioner and the respondent. The plaintiff's pleading is a verified petition. A trial in Family Court is called a hearing. Many proceedings have two hearings, a fact finding hearing, and a dispositional hearing. Different rules of evidence applies these hearings.

5. Attorney Fees and Assigned Counsel

Supreme Court

There are rights to have assigned counsel in some aspects of a Supreme Court case. For matrimonial and support cases, it is possible to have the court make an award of counsel fees which requires the spouse with more money or assets pay the counsel fees for the other spouse.

Family Court

A family court judge has the authority to assign an attorney to indigent people for many (but not all) family court proceedings. The Family Court also has the authority in some instances to award counsel fees.

6. Appeals

Supreme Court

Appeals from the Supreme Court are heard in the Appellate Division pursuant to CPLR 5701

The record on in an appeal from a Supreme Court order or judgment must be by the Full Record Reproduced or the Appendix Method.

Family Court

Appeals from final orders issued by Family Court judges are heard in the Appellate Division pursuant to CPLR 5702 and Family Court Act 1112. Non final orders are not appealable as of right under FCA 1112. A motion seeking permission to appeal a non final order must be made in the Appellate Division.

For support matters, no appeal may be taken from a Support Magistrate's order. Instead, objections must be filed pursuant to FCA 439 and these are reviewed by a Family Court judge. Once a judge issues an order on the objections, an appeal may be taken in the Appellate Division pursuant to CPLR 5702 and FCA 1112, as this order is considered a final order.

The record from an appeal from Family Court is one of the few instances which the original record may be used.

About J. Douglas Barics
J. Douglas Barics is a divorce lawyer located in Commack NY who regularly represents individuals in all matrimonial and family law matters.

For Additional Information
If you have any questions about this article, please contact J. Douglas Barics

Disclaimer: The article "New York Supreme Court and New York Family Court: Understanding the Differences" is provided as a free educational service and does not constitute legal advice.  For more information see the full disclaimer.