N.Y. Family Court Act § 828: Temporary order of protection; temporary orders for child support and spousal maintenance

§ 828. Temporary order of protection; temporary orders for child

support and spousal maintenance. 1. (a) Upon the filing of a petition or

counter-claim under this article, the court for good cause shown may

issue a temporary order of protection, which may contain any of the

provisions authorized on the making of an order of protection under

section eight hundred forty-two, provided that the court shall make a

determination, and the court shall state such determination in a written

decision or on the record, whether to impose a condition pursuant to

this subdivision, provided further, however, that failure to make such a

determination shall not affect the validity of such order of protection.

In making such determination, the court shall consider, but shall not be

limited to consideration of, whether the temporary order of protection

is likely to achieve its purpose in the absence of such a condition,

conduct subject to prior orders of protection, prior incidents of abuse,

extent of past or present injury, threats, drug or alcohol abuse, and

access to weapons.

(b) Upon the filing of a petition under this article, or as soon

thereafter as the petitioner appears before the court, the court shall

advise the petitioner of the right to proceed in both the family and

criminal courts, pursuant to the provisions of section one hundred

fifteen of this act.

2. A temporary order of protection is not a finding of wrongdoing.

3. The court may issue or extend a temporary order of protection ex

parte or on notice simultaneously with the issuance of a warrant,

directing that the respondent be arrested and brought before the court,

pursuant to section eight hundred twenty-seven of this article.

4. Notwithstanding the provisions of section eight hundred seventeen

of this article the court may, together with a temporary order of

protection issued pursuant to this section, issue an order for temporary

child support, in an amount sufficient to meet the needs of the child,

without a showing of immediate or emergency need. The court shall make

an order for temporary child support notwithstanding that information

with respect to income and assets of the respondent may be unavailable.

Where such information is available, the court may make an award for

temporary child support pursuant to the formula set forth in subdivision

one of section four hundred thirteen of this act. An order making such

award shall be deemed to have been issued pursuant to article four of

this act. Upon making an order for temporary child support pursuant to

this subdivision, the court shall advise the petitioner of the

availability of child support enforcement services by the support

collection unit of the local department of social services, to enforce

the temporary order and to assist in securing continued child support,

and shall set the support matter down for further proceedings in

accordance with article four of this act.

Where the court determines that the respondent has employer-provided

medical insurance, the court may further direct, as part of an order of

temporary support under this subdivision, that a medical support

execution be issued and served upon the respondent's employer as

provided for in section fifty-two hundred forty-one of the civil

practice law and rules.

5. Notwithstanding the provisions of section eight hundred seventeen

of this article, where a temporary order of spousal support has not

already been issued, the court may, in addition to the issuance of a

temporary order of protection pursuant to this section, issue an order

directing the parties to appear within seven business days of the

issuance of the order in the family court, in the same action, for

consideration of an order for temporary spousal support in accordance

with article four of this act. If the court directs the parties to so

appear, the court shall direct the parties to appear with information

with respect to income and assets, but a temporary order for spousal

support may be issued pursuant to article four of this act on the return

date notwithstanding the respondent's default upon notice and

notwithstanding that information with respect to income and assets of

the petitioner or respondent may be unavailable.