Law Office of Jeffrey W. Johnson
Law Office of Jeffrey W. Johnson
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What Is The Difference Between Family Court And Supreme Court In New York? What Type Of Cases Does Each Court Handle? When Would You Be Transferred To One Versus The Other?

In New York State, family law matters can be handled by both Supreme Court and by Family Court. Supreme Court basically handles divorces, and as part of a divorce, they also decide child custody and visitation issues, child support, and Order of Protection issues. While Family Court can handle child support, custody and visitation, and Orders of Protection, as well, they cannot do the actual divorce itself; they can’t grant a divorce or divide up property, pensions, assets, etc.

If child custody and visitation issues are pending in Family Court and someone files a divorce, they can make a motion to have those matters consolidated into Supreme Court, which will usually be granted in order to have all matters decided in one court (in this case, the Supreme Court). You can also do child custody, visitation, and child support issues in Family Court and, once you have a final determination on those, file for divorce. You could have an uncontested divorce at that point, as the orders of custody, visitation, and support can be incorporated into the divorce in Supreme Court.

In addition, Family Court also handles cases involving the neglect and abuse of children, as well as juvenile delinquency cases. They decide paternity, approve adoptions, and handle termination of parental rights cases. Guardianship cases, which are handled in Family Court, can also be done in Surrogate’s Court, which handles probate issues. The majority of those cases are not handled in Supreme Court because Family Court does have fairly exclusive jurisdiction over most of the issues mentioned.

How Is Time Sharing Or Custody Determined In New York When A Couple Divorces Or When Parents Are Not Together? What Is The Child’s Best Interest Standard?

The standard in New York regarding the best interest of the child goes into all matters involving custody and visitation. The court will consider many things when deciding the best interest of the child, and there are a few things that they must consider. They have to run criminal clearances on the parents and any other adults living in the home to check their criminal records. They also have to run child protective clearances to verify whether the parent or adult has any history with ACS or with neglect or abuse cases in Family Court. If there is any kind of finding of domestic violence (for example, an Order of Protection proceeding was held in Family Court or in Criminal Court), that has to be considered by the judge in making a custody determination.

The list of other things the court might take into consideration can be almost infinite. They will look at who’s had the primary physical custody of the child, and if it’s been for an extended period of time, there tends to be a presumption in favor of keeping that arrangement. They’ll look at what kind of arrangement there’s been as far as parenting time. For the non-custodial parent, they will usually keep that basic arrangement unless there’s a reason to change it. They look at things like the mental health of the parents and their living situation; many times, they’ll have someone do a home study of the two homes to see if they’re appropriate for a child to live in or to spend overnights there. They’ll look into any kind of allegations that either side makes about whether there’s some unfitness to either parent.

The court will almost always assign a law guardian, or what we now call an attorney for the children, who will meet with the child, and if the child is below the age of six, the attorney for the child will normally advocate what’s in their best interest. If the child is over the age of six, then that attorney can advocate for what the child wants. The court will always consider what the child wants, but that’s never a determinative, just a factor (and it’s more of a factor the older the child gets). Once the child reaches the age of 16 or 17 and states that they want to stay with one parent, the court normally will follow that because it can be hard to keep someone that old in a home where they don’t want to be.

Also, if there is no agreement between the parents, many times the court will order what’s called a forensic evaluation, meaning either a psychiatrist or psychologist will be appointed by the court to interview the parties and the children over a pretty extensive period of time, usually several months at least. They will talk to school resources, medical resources—whoever they think is appropriate—before making a fairly detailed report and giving recommendations on what they think the custody and the visitation arrangement should be.

Additionally, there are many other factors that can go into the court’s decision. Individual cases often have individual factors that the court will consider.

For more information on Child Custody Matters in New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 557-9767 today.