Family law is a complex area of law that deals with issues related to family relationships and domestic matters. When individuals are involved in a family law case in New York, there are several legal procedures and motions available to help them navigate the legal system. These motions can be used to request court orders, enforce existing orders, or modify existing orders. Family law motions can be critical in obtaining a favorable outcome in a case, but they require a thorough understanding of the law and court procedures. In this article, Eastcoastlaws.com will explore the various types of family law motions in New York and discuss how they can be used in family law cases to protect the rights and interests of individuals and families.
What is a “motion” in family law?
In family law, a motion refers to a formal request made to the court by one party seeking a ruling or order on a specific issue. Motions are commonly used to resolve disputes between parties in family law cases such as divorce, child custody, visitation, child support, and spousal support.
A motion can be filed at any stage of a family law case, but it is typically used when a dispute arises during the course of the proceedings. For example, if one parent believes the other parent is not complying with a child custody or visitation order, they may file a motion requesting that the court enforce the order. Alternatively, if one spouse believes the other is not providing accurate financial information, they may file a motion to compel discovery.
To file a motion, the party must prepare a written document that outlines the relief sought and the legal basis for the request. The motion must be served on the other party, who will have an opportunity to respond. In some cases, the court may hold a hearing to allow both parties to present evidence and arguments.
There are different types of motions in family law, including:
- Emergency Motion: An emergency motion is filed when there is an urgent need for court intervention, such as in cases involving domestic violence or child abuse.
- Temporary Motion: A temporary motion is filed when there is a need for a temporary order while the case is pending. For example, a temporary order for child support or spousal support may be granted until a final order is issued.
- Contempt Motion: A contempt motion is filed when one party believes the other has violated a court order. If the court finds the party in contempt, they may face fines or even jail time.
- Modification Motion: A modification motion is filed when one party seeks to modify an existing court order. For example, a modification of child custody may be requested if there has been a substantial change in circumstances.
How do I make a motion in New York?
To make a motion in New York, you must follow certain procedures and guidelines. The following are the steps to making a motion in New York:
- Draft the Motion: The first step is to draft a written motion that clearly states the relief you are seeking and the legal basis for your request. The motion must be supported by affidavits or other evidence that supports your argument.
- Serve the Motion: Once the motion is drafted, it must be served on all parties involved in the case. The service must be done according to the rules of the court and must include a notice of the time and date of the hearing.
- File the Motion: After the motion is served, it must be filed with the court. This is usually done by submitting the motion to the clerk’s office along with the required filing fee.
- Schedule the Hearing: The court will schedule a hearing on the motion. The date and time of the hearing will be included in the notice that was served on the parties.
- Attend the Hearing: On the day of the hearing, all parties must attend and present their arguments. The judge will hear both sides and make a ruling on the motion.
It is important to note that there are different types of motions in New York, and the procedures may vary depending on the type of motion being filed. Some motions may require additional documentation or notice to be provided to the court or the other parties involved.
What is a “Motion on Notice”?
In most cases, you must “give notice,” or properly inform the other side of your action. It’s referred to as a “Motion on Notice.” In New York, you have eight days (or 13 days if served by mail) before the motion will be heard by the judge to serve copies of your motion documentation to the opposing party and the court. Your motion papers, often known as “motion papers,” must contain the following records:
- a notice of motion stating the time and place that the motion will be heard called the “return date”
- supporting papers (documents, exhibits, and affidavits) that support the motion
- your request for relief (what you’re asking the court to do)
- the grounds for relief (explaining why the court should grant your request), and
- if you have an attorney, your attorney will submit an “affirmation,” or a statement under penalty of perjury, that explains the facts of the case.
A lawyer may also submit a “brief,” or paper, together with the motion papers that outline the statutes, case law, and legal justification for the request. An “affidavit of service,” a document in which you (or your attorney) declare that you served the opposing party with your motion papers, must be included with the court’s copy of your motion papers.
What is an “Order to Show Cause”?
You may occasionally move without giving it any thought. This kind of replacement motion is known as an “Order to Show Cause” in New York. If the court is persuaded that there is a genuine emergency, an order to show cause may be heard whenever the court specifies, even sooner than the customary eight days and even just a few hours later. Similar to the moving papers previously mentioned, an order to show cause is composed mostly of these items. The main distinction is that a show-cause order is submitted to the court “ex parte,” or without the presence of both parties.
The following actions must be taken by spouses who seek to submit an order to demonstrate cause:
- prepare the same kind of papers as a motion on notice and go to the clerk’s office
- the clerk will inform the judge of your issue and the judge will speak with your ex parte
- the judge determines the time and place of the “return date” for the order to show cause to be heard and signs the order to show cause, and
- you then have to serve the other side with the signed order to show cause and a copy of all of the papers you gave to the judge. The judge will tell you how to serve the other party – it could be by fax, by mail, or by personal delivery.
The judge may include a clause “staying” or “stopping behavior” in the order to show cause in order to preserve the “status quo” (present circumstance) until the return date. A temporary restraining order is a typical “stay”. This can be utilized, for instance, to stop spouses from selling off assets or moving away with kids while a divorce is being processed.
What if my spouse opposes my motion?
Your spouse may object to your motion after being served with it by delivering opposing affidavits, affirmations, and exhibits to you and the court. A “counter-motion,” or a request for the court to take an alternative action, could also be made by your husband. On the return date, you and your spouse (or your attorneys) typically have the chance to present arguments in support of or against the motion before the judge. The judge will next determine whether to approve or deny the motion. Within 60 days, the court may make the decision right away or “reserve” it for a later time. The judge will issue an order if she grants your request. The order must be delivered to the opposing party by you (or your attorney) in order for it to take effect.
Who do I contact for help?
The motion procedure can be complicated if you don’t have legal representation. The clerk’s office in the court where your matter is being heard or was previously heard is the best place to learn more about submitting a motion. In terms of when and how to file motions, judges frequently have their own guidelines. The motion procedure differs between the New York Supreme Court and Family Courts as well. You should be able to get information about submitting a motion in your particular case from the clerk’s office.
For the text of the law governing motions in Family Court, see N.Y. Fam. Ct. Act § 205.11.
For the text of the law governing motions in Supreme Court, see N.Y. C.P.L.R. § 2214.
For some motion and order to show cause forms, visit the website of the New York Courts.