N.Y. Family Court Act § 821-a: Preliminary procedure

§ 821-a. Preliminary procedure. 1. Upon the filing of a petition

under this article, the court shall advise the petitioner of the right

to retain legal representation or if indigent, the right to have counsel

appointed pursuant to section two hundred sixty-two of this act.

2. Upon the filing of a petition under this article, the court may:

(a) issue a summons pursuant to section eight hundred twenty-six of

this part or issue a warrant pursuant to section eight hundred

twenty-seven of this part;

(b) issue a temporary order of protection in favor of the petitioner

and, where appropriate, the petitioner's children or any other children

residing in the petitioner's household, pursuant to section eight

hundred twenty-eight of this part.

3. Where the respondent is brought before the court pursuant to a

summons under section eight hundred twenty-six of this part or a warrant

issued under section eight hundred twenty-seven of this part, or where a

respondent voluntarily appears before the court after such summons or

warrant has been issued, the court shall:

(a) advise the parties of the right to retain legal representation or,

if indigent, the right to have counsel appointed pursuant to section two

hundred sixty-two of this act;

(b) advise the respondent of the allegations contained in the petition

before the court; and

(c) provide the respondent with a copy of such petition; and the court

may:

(i) order the release of the respondent on his or her own recognizance

pending further appearances as required by the court;

(ii) direct that the respondent post bail in a manner authorized

pursuant to section one hundred fifty-five-a of this act in an amount

set by the court; or

(iii) issue a commitment order directing that the respondent be

remanded to the custody of the county sheriff or other appropriate law

enforcement official until such time as bail is posted as required by

the court.

4. Where the court directs that the respondent post bail or that the

respondent be committed to the custody of a law enforcement official as

provided for herein, and the respondent fails to post bail or otherwise

remains in custody, a hearing shall be held without unreasonable delay

but in no event later than one hundred twenty hours after the arrest of

the respondent or in the event that a Saturday, Sunday, or legal holiday

occurs during such custody, one hundred forty-four hours after the

arrest of the respondent, to determine upon material and relevant

evidence whether sufficient cause exists to keep the respondent in

custody. If the court determines that sufficient cause does not exist or

if no hearing is timely held, the respondent shall immediately be

released on the respondent's own recognizance.

5. (a) At such time as the petitioner first appears before the court,

the court shall advise the petitioner that the petitioner may: continue

with the hearing and disposition of such petition in the family court;

or have the allegations contained therein heard in an appropriate

criminal court; or proceed concurrently in both family and criminal

court.

(b) Where the petitioner seeks to have the petition heard and

determined in the family court, the court shall set the matter down for

further proceedings pursuant to the provisions of this article. Nothing

herein shall be deemed to limit or restrict petitioner's rights to seek

to proceed directly in either criminal or family court, or both, as

provided for in section one hundred fifteen of this act and section

100.07 of the criminal procedure law.

6. When both parties first appear before the court, the court shall

inquire as to the existence of any other orders of protection involving

the parties.