Divorce and Family court issues are often very emotionally charged, which can make them quite volatile. Because these cases often involve the people who are closest to us. Whether it’s a parent seeking custody of their child or a couple getting a divorce, Family court cases can be messy, and many times can’t be resolved with mediation, alternative dispute resolution, or attorney-moderated negotiation.
Sometimes the parties have to go to trial to get the issues resolved.
Divorce and Family court trials are often a necessity in certain cases. It may be part of the standard order for some types of cases and a last resort for others. Whatever the case, if you are facing a divorce or family court trial, it is wise to at least consult with an attorney before entering the courtroom. It is even wiser to have experienced legal representation for your divorce or family law case.
We’re here to help.
Here’s what you need to know about divorce and family court trials in New York.
How does Family Court work in New York?
The Family Court has the authority to hear and rule in certain types of cases related to Family Law. This power is given to the court through the Family Court Act.
The New York State Unified Court System houses this specialized court and each county in the State has one. There is also a location in each of the five Boroughs in New York City – Bronx, Queens, Staten Island, Manhattan, and Brooklyn. Typically, a case can be filed in the county where one or both parties live and no fee is incurred.
Some Family Court proceedings and trials are open to the public, but the judge or support magistrate who presides over the case may exercise their authority to exclude the public from any or all proceedings to protect the safety and/or privacy of the parties involved or if the nature of the case calls for discretion.
Every case is assigned a number or docket number, that is its unique identifier. The docket number is a combination of letters and numbers with the letter at the beginning indicating the type of case that is being filed. Everything related to the case must have the docket number on it. For instance, the NYC Family Court docket number system is as follows:
- A: Adoption
- B: Permanent termination of parental rights
- D: Juvenile delinquency
- E: Designated Felony
- F: Child or spousal support
- G: Guardianship
- K: Foster Care Review
- L: Voluntary Foster Care Approval
- M: Marriage Application
- NN and NA: Neglect / Abuse
- O: Family offense (order of protection)
- P: Paternity
- S: PINS (Person in Need of Supervision)
- U: Interstate support
- V: Visitation and custody of children
When you get to the courthouse, you need to be at the assigned courtroom on time. If you are late, the judge may choose to proceed without you and dismiss the case or decide it in your absence. It is a good idea to arrive early to avoid any delays.
If you have a child with you, each Family Court building has a place for children to wait. Several have Children’s Centers that are supervised and parents who have to use the court can drop off their children there while they attend their court proceedings.
Once the case has concluded and the judge has made the final decision, each party in the case has the right to file an appeal if they feel that there was an error, or the case was mishandled or there was some other legal issue.
For the most part, Family Court proceedings are not part of the public record.
What are the Parts of a Divorce or a Family Court trial?
Opening Statement – This is the attorney’s first opportunity to present the basic facts or a summary of the case. The party that goes first is the one that bears the burden of proof. In a divorce or a family law case, that is usually the plaintiff or the Petitioner. In criminal cases, it’s the prosecution. The adverse party, the respondent or defendant depending on the type of case, goes second.
Direct Testimony by Witnesses – During the trial, each party is able to present evidence to support their case and that includes the direct testimony of witnesses. Both sides have the opportunity to question witnesses.
Presentation of Evidence – Both sides present their evidence to support their side of the case. Most of this is done through oral testimony. Witnesses speaking under oath and the parties themselves may present evidence.
Direct Examination – The attorney who calls a witness will ask them questions related to the case and what they know about the case.
Cross-Examination – The opposing attorney follows the direct examination with questions of their own to cross-examine the witness.
Closing Statements – This is the attorney’s last chance in a trial to give the judge their reasons why the judge should rule in their favor. They clarify any issues that need to be resolved and explain how the evidence presented supports their case.
What types of cases does the New York Family Court handle?
A lot of different types of cases go through the Family Court. If a person needs a protective order in a domestic violence case, that is where they go. If they need a modification for child support or they are seeking to gain custody of their child, they eventually end up in Family Court.
Common types of cases heard in Family Court include:
- Child custody
- Paternity
- Equitable distribution of property
- Visitation
- Adoption
- Termination of parental rights
- Alimony
- Family offense
- Time sharing
- Child support
- Abuse and neglect
- Guardianship
Divorce cases are only handled by the Supreme Court.
Some of these cases are quick, but Family Court trials can take days, weeks, or even years to resolve. After the divorce, the former couple often goes through Family Court to resolve child support, custody, and visitation. During a divorce in a Supreme Court, the Court can also decide on many of the same issues as the Family Court. But as new issues arise after the divorce, when the case is no longer in the Supreme Court, that’s when the parties go to the Family Court.
What is a Family Offense?
A Family Offense Petition may be filed in Family Court. A family offense can be against any family member related by marriage or blood, including those who have a child together but are unmarried, who were formerly married, or who have engaged in an intimate relationship with each other either currently or in the past. However, for the purpose of a divorce, the offense is against a spouse or their children.
- Family Offenses may include:
- Disorderly conduct
- Unlawful dissemination or publication of an intimate image
- Harassment
- Aggravated harassment
- Sexual misconduct
- Forcible touching
- Sexual abuse
- Menacing
- Reckless endangerment
- Criminal obstruction of breathing or blood circulation
- Strangulation
- Assault or attempted assault
- Stalking
- Criminal mischief
- Identity theft
- Grand larceny
- Coercion
The person who files the petition has the right to have a court appearance immediately, on the same day. The judge may take certain steps to provide the petitioner with relief or protection such as a temporary order for child support or an order of protection. These temporary orders are valid until the actual court date for the person who is accused of the offense.
If the abuse is found to be valid, it can carry a lot of weight in the divorce proceedings and the timeline is often expedited.
What is the Burden of Proof in a Family Offense Case in New York?
Unlike the burden of proof in criminal court, where the allegations must be proven beyond a reasonable doubt, the burden of proof in family court is much lower. The petitioner is still required to prove that the other party committed the crime they are accusing them of, by a preponderance of evidence, also known as more likely than not. In other words, in light of the evidence and the law, do you believe that each element of his/her claim/counterclaim is more likely true than not?
In addition, the claim must be based on actual events and actions, not on what the petitioner is afraid the person is going to do or what they might do. Evidence of offense can include pictures, eyewitnesses, police reports, and an admission of guilt from the accused.
Does the Family Court handle divorce cases in New York?
In the state of New York, the only court that handles divorce cases is the New York Supreme Court. Family Court is where child support, child custody, visitation, and other family law-related issues are handled. If you need help with any of these issues, you can take care of it there, but if you want to get a divorce, you will have to go through the Supreme Court because you can’t do it in Family Court.
A judge will not sign the Judgement of Divorce until all other issues have been resolved. This includes property division, custody, visitation, child support, and spousal support. This means that the couple may need to go through Family Court for some of these issues in order to get to divorce court although some couples can resolve everything through negotiation or mediation.
Is a Family Court Trial a Jury Trial or a Bench Trial?
When a court case goes to trial, it is either classified as a bench trial or a jury trial. Each of these has its own advantages and disadvantages. In criminal court, a trial can be either one, but in Family Court and in divorce proceedings in the Supreme Court it is always a bench trial.
Jury Trial – A jury trial consists of 12 members who are “peers” of the person on trial. They are from the community and carefully selected to listen to the facts and evidence presented in the case and determine the outcome. In a criminal trial, they determine whether the defendant is guilty or not guilty.
In jury selection, the attorneys for both sides screen potential jurors by asking them specific questions. Then they determine which jurors they feel are best suited for their side of the case. That pool of jurors is then culled down to 12 as both lawyers work together to agree on who they want to pick.
Bench Trial – A bench trial is a trial by a judge. There is no jury. The judge is the sole decision maker and determines the outcome of the trial. This is typically faster than a trial by jury and bench trials tend to be a little more relaxed and less formal. All evidence is presented to the judge who can ask questions for clarification. This is beneficial in cases that are complicated and may be difficult for some to understand.
What are Potential Motions That May Be Filed After the Trial?
Appeal – An appeal allows one or both parties to address errors or legal issues that may have occurred during the trial. It is not a new trial, and no new evidence can be presented. Often the appeal is that the judge’s decision was not correct. This can be due to several factors such as the suppression of evidence that should not have been suppressed, or the child’s best interests were not adequately taken into consideration.
Motion to Reargue – A motion that asks the judge for the attorney to reargue some issues on which the Judge already ruled.
Motion to Renew – A motion that requests the judge in a case to reconsider the decision that he or she made based on additional evidence or new evidence that was not presented or used in the first trial.
Enforcement – A process that is used to force a person to obey a judgment or order. This is common with child support. If the other parent is ordered to pay a certain amount of child support at certain times during the month but fails to do so, the custodial parent can return to court and request enforcement. In other words, they can ask the court to require the other parent to pay or face legal consequences.
Contempt – Contempt of court can be filed against a person if they disobey the judge’s order. For example, a parent who does not pay child support as ordered could face contempt charges. This can mean fines and even jail time.
Modification – A modification means to alter, change, or amend a judgment that is already entered. For instance, if a parent has lost their job and cannot pay the child support that they were paying, they can file a request for a modification so the judge can consider reducing the amount they are to pay.
Do You Need a Lawyer for a Divorce or a Family Court Trial?
Divorce and Family Court trials tend to be very complex. There are usually a lot of requirements that must be met and very strict timelines that must be adhered to. It is best to have an experienced attorney representing you for the trial. Attorneys understand the Supreme and Family Court system and can help to make sure that your rights and interests are properly represented and protected.
A divorce or a Family Court trial can be arduous and having compassionate, professional, competent legal representation on your side gives you peace of mind and an advantage in the courtroom.
Experienced Legal Representation from a New York Family Law Attorney
If you are facing a trial, you don’t have to do it alone. There is too much at stake, whether you are fighting for your paternal rights or fighting to get custody of your child, you need someone in your corner who understands – and who can help.
When you walk into that courtroom, you deserve to get a fair shake. You deserve to get everything that you are legally entitled to receive. You deserve to get what is in your child’s best interests and your own. You deserve to have someone who will fight for you, someone who will fight for your rights, and ensure that you have the best possible outcome for your case.
At The Litvak Law Firm, that is what we do. When you choose us, you will have skilled, compassionate, professional legal representation with more than a decade of experience in the courtroom. We know how the court system works and we know what it takes to win cases.
Call today at 718-989-2908 for your free consultation and find out how we can help make your trial a little less stressful and a lot more likely to be successful.