§ 821-A — Preliminary procedure

New York § 821-A

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

Text

§ 821-a. Preliminary procedure. 1. Upon the filing of a petition\nunder this article, the court shall advise the petitioner of the right\nto retain legal representation or if indigent, the right to have counsel\nappointed pursuant to section two hundred sixty-two of this act.\n 2. Upon the filing of a petition under this article, the court may:\n (a) issue a summons pursuant to section eight hundred twenty-six of\nthis part or issue a warrant pursuant to section eight hundred\ntwenty-seven of this part;\n (b) issue a temporary order of protection in favor of the petitioner\nand, where appropriate, the petitioner's children or any other children\nresiding in the petitioner's household, pursuant to section eight\nhundred twenty-eight of this part.\n 3. Where the respondent is brought before the court pursuant to a\nsummons under section eight hundred twenty-six of this part or a warrant\nissued under section eight hundred twenty-seven of this part, or where a\nrespondent voluntarily appears before the court after such summons or\nwarrant has been issued, the court shall:\n (a) advise the parties of the right to retain legal representation or,\nif indigent, the right to have counsel appointed pursuant to section two\nhundred sixty-two of this act;\n (b) advise the respondent of the allegations contained in the petition\nbefore the court; and\n (c) provide the respondent with a copy of such petition; and the court\nmay:\n (i) order the release of the respondent on his or her own recognizance\npending further appearances as required by the court;\n (ii) direct that the respondent post bail in a manner authorized\npursuant to section one hundred fifty-five-a of this act in an amount\nset by the court; or\n (iii) issue a commitment order directing that the respondent be\nremanded to the custody of the county sheriff or other appropriate law\nenforcement official until such time as bail is posted as required by\nthe court.\n 4. Where the court directs that the respondent post bail or that the\nrespondent be committed to the custody of a law enforcement official as\nprovided for herein, and the respondent fails to post bail or otherwise\nremains in custody, a hearing shall be held without unreasonable delay\nbut in no event later than one hundred twenty hours after the arrest of\nthe respondent or in the event that a Saturday, Sunday, or legal holiday\noccurs during such custody, one hundred forty-four hours after the\narrest of the respondent, to determine upon material and relevant\nevidence whether sufficient cause exists to keep the respondent in\ncustody. If the court determines that sufficient cause does not exist or\nif no hearing is timely held, the respondent shall immediately be\nreleased on the respondent's own recognizance.\n 5. (a) At such time as the petitioner first appears before the court,\nthe court shall advise the petitioner that the petitioner may: continue\nwith the hearing and disposition of such petition in the family court;\nor have the allegations contained therein heard in an appropriate\ncriminal court; or proceed concurrently in both family and criminal\ncourt.\n (b) Where the petitioner seeks to have the petition heard and\ndetermined in the family court, the court shall set the matter down for\nfurther proceedings pursuant to the provisions of this article. Nothing\nherein shall be deemed to limit or restrict petitioner's rights to seek\nto proceed directly in either criminal or family court, or both, as\nprovided for in section one hundred fifteen of this act and section\n100.07 of the criminal procedure law.\n 6. When both parties first appear before the court, the court shall\ninquire as to the existence of any other orders of protection involving\nthe parties.\n