New York Courts: Family Court versus Supreme Court
In New York, each county has its own Supreme Court and its own Family Court, there to serve its community members. For many legal matters, the Supreme Court and Family Court have something known as “concurrent jurisdiction”. This means that there is significant overlap in the type of matters these two courts can hear. However, there are certain matters that may only be in one court or the other. There are also significant differences in the way each court works and its accessibility to self-represented litigants.
The Supreme Court: Procedures & Nuances
Although the Supreme Court may sound like the highest court, in New York is actually a court of general jurisdiction. This means it hears most civil matters, including divorce proceedings. In fact, in New York a divorce proceeding can only be filed in the Supreme Court.
In order to start an action in the Supreme Court, the pleadings (Summons with Notice or Summons and Verified Complaint) must be filed with the County Clerk. Each county has its own County Clerk, where litigants or their attorneys can file and submit documents and pay the required fees.¹ The clerk will assign a case identifier, known as an Index Number and process the papers. Depending on the documents that are filed, the matter will then be assigned to the proper judge who handles their specific area of law. In the New York Supreme Court, litigants are referred to as Plaintiff and Defendant.²
Clerks in the Supreme Court may also be able to help self-represented litigants with procedural questions. Each county’s Supreme Court also provides specific dates and times during the week in which attorneys are available to answer litigant’s questions for free. However, because there are so many rules governing Supreme Court procedures, most matters are navigated by attorneys hired by the litigants. Those litigants who choose to represent themselves are held to the same standard of skill and knowledge as all of the attorneys practicing within the court system.
Litigants in the Supreme Court must generally pay private attorneys if they want representation.³ However, if the litigants meet certain financial requirements they may be entitled to appointed counsel only to assist with child custody. In the event that a support matter or order of protection is pending and there is a threat of incarceration, an attorney may be appointed to assist with these issues as well. An attorney will not be appointed for issues of basic child support, spousal support (maintenance) or equitable distribution.
The Family Court: Procedures & Nuances
The New York Family Courts hear matters related to familial issues, such as child custody, paternity, child support, family offense proceedings (orders of protection between parties who have familial relationships), ACS Abuse and Neglect Proceedings and juvenile delinquency cases.⁴ It hears first time cases, as well as modifications and enforcement of already existing orders.
Family Court matters are commenced through the filing of petitions at the court’s petition window. If filed by an attorney, the petition will be prepared in advance, filed with the petition clerk and returned approximately one week later with a case identifier and court date. If filed by a self-represented litigant, it will be prepared in the courthouse by a clerk after the litigant fills out the requisite forms. Once reviewed for accuracy and signed by the petitioner, the clerk will affix the Summons as a cover page, which will include the case identifier and a court date. The court identifiers in Family Court are referred to as the File Number and Docket Number. The File number will generally remain consistent on all cases involving common children. The docket number varies depending upon the child and the type of matter that has been filed. For example, paternity matters are assigned a P docket, support matters are assigned an F docket and child custody and visitation matters are assigned a V docket. Litigants in the New York Family Court are referred to as Petitioner and Respondent.
Just like the Supreme Court, clerks are there to help with procedural questions and attorneys are made available to answer litigant’s questions. However, Family Court tends to be more user-friendly than Supreme Court. Many litigants begin their family court proceedings without counsel. For those litigants who cannot afford private counsel, in many instances an attorney may be appointed at the first court appearance. For those who do not meet the financial requirements for an appointed attorney, he or she may choose to file the documents first and hire an attorney in advance of the first court appearance.
Appointed counsel are more readily available and offered in the Family Court system, though the same standards of Supreme Court apply. Attorneys will only be appointed in child custody matters and matters involving the threat of incarceration or removal of children from the home.
Concurrent Jurisdiction
As previously mentioned, there is significant overlap in the issues that the Family Court and Supreme Court may hear. Although the Supreme Court alone handles initial divorce matters, issues arising from that divorce matter can generally be filed and heard in either the Supreme Court or the Family Court. For example, if the parties reached a resolution regarding child custody and/or child support in their divorce matter, but now seek to modify or enforce those provisions, he or she may make those requests in either the Family Court or the Supreme Court.⁵
Once a divorce is filed and pending in the New York Supreme Court, all issues regarding the marriage and the children should be addressed within the Supreme Court. A litigant with a divorce pending in the New York Supreme Court should not then file applications such as child custody, child support or even a family offense petition in the family court, as the Judge assigned to the divorce proceeding has the power to handle all of those issues.
There are times, however, when spouses are not yet ready to file a divorce action, but still need to resolve issues of child custody or child support. So long as a divorce matter is not yet pending in the Supreme Court, it is appropriate for those litigants to file for relief in the New York Family Courts. It is not uncommon, however, that at some point one of the parties will file a divorce. In those instances, a litigant or attorney may choose to file an application to consolidate the Family Court matters with the pending divorce action in the Supreme Court. It is up to the Supreme Court Judge to decide if he or she will take over the pending Family Court cases.
For parties who have never been married, but have children in common, the appropriate place to file your relief regarding child custody, child support and the like is in the Family Court.
Please read “Starting a Divorce Action: Parts 1 & 2” for more information regarding these procedures.
Please read “Plaintiff or Defendant - Does it Matter?” for more information regarding these titles.
There are organizations outside of the court system who may provide litigants with free or low cost services.
There are also more nuanced matters heard in the NY Family Courts not listed above.
Parties may contract to different terms of jurisdiction in the Stipulation of Settlement or Judgments of Divorce. These documents should be reviewed carefully before deciding where to file.