If you are starting a divorce action, generally, it is the Supreme Court as part of the divorce action that will hear the custody proceeding. If you have begun a custody proceeding in the family court and then you file for a divorce in the Supreme Court, the Supreme Court may leave the custody determination to the family court and then adopt the family court determination as part of the divorce action, or the Supreme Court can, on application, consolidate the family court into the Supreme Court actions. For instance, I’m involved in a matter where there was a family court proceeding started by my client initially. We then commenced the divorce action. It was agreed with the Supreme Court judge that the Supreme Court judge would defer it to the family court in its determination of custody. Then the family court custody determination would be in the judgment of the divorce to be issued by the Supreme Court.
There are no hard and fix rules. It depends on the circumstances and the facts of a particular case. But if nothing is pending in the family court, then the Supreme Court will handle the custody hearing and the determination for custody.
When Might A Petition To Modify Child Support Or Alimony Or Spousal Support Be Granted In New York?
The general standard has been a substantial change in circumstance. But, of course, one of the things that have happened because of the pandemic is the parents who have now lost their job or have a tremendous loss of income making applications for downward modifications because there’s been a substantial change in circumstance. If, for instance, a parent paying the child support or spousal support, unfortunately, was in a terrible accident and is now debilitated and cannot work. That’s a substantial change in circumstance. There are also some statutory requirements. If, for instance, child support has not been modified for three years, that may be a basis for a modification. If there’s been a 15% change in the parent’s income up or down, that may be a basis for a modification as well. But the courts principally look for a substantial change in circumstances.
So you have to understand that when you make that application, you bear the burden of proof, and the courts are not likely to change things quickly. If, for instance, you sign a settlement agreement with your spouse in June of this year, of 2021, and in December, you decided you want a modification, courts are not going to change something that the parties agreed to six months earlier. You must show a change that had a material effect on your income or your ability to earn an income to get the modification. But yes, modifications are available under the right circumstances.
What Is The Process To Modify A Family Court Order In New York?
Generally, you’d go back to the family court and file a petition seeking a modification of a prior order or determination. That application, the summons, and petition would then be served on your adversary. You would then come before the court, and the court would determine whether or not the matter can be resolved. If it can’t, the court would set it down for a fact-finding hearing, which is, in essence, a trial on the issues. Both sides would have to come in and present their evidence as far as why there should or should not be a modification, and then the court would make a ruling.
The Supreme Court can also modify a family court order of support. So you essentially have access either to the Supreme Court or to the family court. More often than not, people go into the family court to modify an order of the family court and into the Supreme Court to modify a determination of the Supreme Court. Still, you can modify a family court order in the Supreme Court. The family court does not have jurisdiction to modify a Supreme Court order.