§ 828 — Temporary order of protection; temporary orders for child support and spousal maintenance

New York § 828

• Jurisdiction: New York
• Law FCT: Family Court Act
• Part 2: Preliminary Procedure
• Art. 8: Family Offenses Proceedings

Text

§ 828. Temporary order of protection; temporary orders for child\nsupport and spousal maintenance. 1. (a) Upon the filing of a petition or\ncounter-claim under this article, the court for good cause shown may\nissue a temporary order of protection, which may contain any of the\nprovisions authorized on the making of an order of protection under\nsection eight hundred forty-two, provided that the court shall make a\ndetermination, and the court shall state such determination in a written\ndecision or on the record, whether to impose a condition pursuant to\nthis subdivision, provided further, however, that failure to make such a\ndetermination shall not affect the validity of such order of protection.\nIn making such determination, the court shall consider, but shall not be\nlimited to consideration of, whether the temporary order of protection\nis likely to achieve its purpose in the absence of such a condition,\nconduct subject to prior orders of protection, prior incidents of abuse,\nextent of past or present injury, threats, drug or alcohol abuse, and\naccess to weapons.\n (b) Upon the filing of a petition under this article, or as soon\nthereafter as the petitioner appears before the court, the court shall\nadvise the petitioner of the right to proceed in both the family and\ncriminal courts, pursuant to the provisions of section one hundred\nfifteen of this act.\n 2. A temporary order of protection is not a finding of wrongdoing.\n 3. The court may issue or extend a temporary order of protection ex\nparte or on notice simultaneously with the issuance of a warrant,\ndirecting that the respondent be arrested and brought before the court,\npursuant to section eight hundred twenty-seven of this article.\n 4. Notwithstanding the provisions of section eight hundred seventeen\nof this article the court may, together with a temporary order of\nprotection issued pursuant to this section, issue an order for temporary\nchild support, in an amount sufficient to meet the needs of the child,\nwithout a showing of immediate or emergency need. The court shall make\nan order for temporary child support notwithstanding that information\nwith respect to income and assets of the respondent may be unavailable.\nWhere such information is available, the court may make an award for\ntemporary child support pursuant to the formula set forth in subdivision\none of section four hundred thirteen of this act. An order making such\naward shall be deemed to have been issued pursuant to article four of\nthis act. Upon making an order for temporary child support pursuant to\nthis subdivision, the court shall advise the petitioner of the\navailability of child support enforcement services by the support\ncollection unit of the local department of social services, to enforce\nthe temporary order and to assist in securing continued child support,\nand shall set the support matter down for further proceedings in\naccordance with article four of this act.\n Where the court determines that the respondent has employer-provided\nmedical insurance, the court may further direct, as part of an order of\ntemporary support under this subdivision, that a medical support\nexecution be issued and served upon the respondent's employer as\nprovided for in section fifty-two hundred forty-one of the civil\npractice law and rules.\n 5. Notwithstanding the provisions of section eight hundred seventeen\nof this article, where a temporary order of spousal support has not\nalready been issued, the court may, in addition to the issuance of a\ntemporary order of protection pursuant to this section, issue an order\ndirecting the parties to appear within seven business days of the\nissuance of the order in the family court, in the same action, for\nconsideration of an order for temporary spousal support in accordance\nwith article four of this act. If the court directs the parties to so\nappear, the court shall direct the parties to appear with information\nwith respect to income and assets, but a temporary order for spousal\nsupport may be issued pursuant to article four of this act on the return\ndate notwithstanding the respondent's default upon notice and\nnotwithstanding that information with respect to income and assets of\nthe petitioner or respondent may be unavailable.\n