Practice · Family Court
The Toner Law Firm handles Family Court matters in Nassau County: custody and visitation, child support, paternity, family offense petitions and orders of protection, and child protective proceedings. The firm's particular focus is the case that is running in two courts at once, where a criminal charge and a Family Court petition arise from the same night.
The overlap
After a domestic incident, most people are told they have a criminal case. Often they have two cases, running at the same time, in front of different judges, on different timelines, decided by different standards.
Criminal court
The District Attorney prosecutes. The question is whether you committed a crime and what the punishment should be. The court will address an order of protection at arraignment, and in domestic cases one is commonly issued as a condition of release. The standard of proof is beyond a reasonable doubt.
Family Court
A family offense petition under Article 8 of the Family Court Act is a civil case filed by the other party, not by a prosecutor. The question is protection, and often custody and visitation alongside it. It is not a criminal prosecution and does not produce a criminal conviction, but it can restrict where you live and whether you see your children.
These proceedings are legally separate and can run at the same time, because criminal courts and Family Court have concurrent jurisdiction over qualifying family offenses. A dismissal, plea or acquittal in one does not automatically end the other.
Why it matters who handles both
This is the practical reason the two cases should not be run by people who never speak to each other.
Family Court runs on affidavits and testimony. An account of the night in question, written to explain yourself in a custody dispute, is a statement that can find its way into the criminal case. People routinely put things in writing in Family Court that no defense lawyer would have let them say.
A person who is both a criminal defendant and a Family Court respondent may decline to answer questions that could incriminate them. But silence in a civil custody proceeding can carry practical consequences. Deciding when to invoke it, and when not to, requires knowing exactly what the criminal exposure is.
A criminal court order may bar contact entirely. A Family Court order may set up visitation. If the terms are not reconciled, following one can violate the other. The precise wording matters, including whether the criminal order is expressly made subject to a later Family Court custody or visitation order.
Resolving the criminal case quickly can feel like relief. But a plea, an admission or a consent to a final order of protection can become the central exhibit in the custody case months later. The criminal disposition should be negotiated with the family consequences already in view.
Coordinated representation can reduce inconsistency and constitutional risk, but it is not automatically right for every situation. Conflicts, privilege and the separate objectives of each proceeding have to be assessed first, and in some circumstances separate counsel is required.
Jurisdiction
A common and expensive misunderstanding: Family Court cannot grant a divorce. Only Supreme Court can. Family Court handles a great deal else.
| Matter | Which court | Notes |
|---|---|---|
| Divorce and division of marital property | Supreme Court only | Family Court has no power to grant a divorce |
| Custody and visitation | Family Court, or Supreme Court if part of a divorce | Decided on the best interests of the child |
| Child support | Family Court, or Supreme Court in a divorce | Often heard first by a Support Magistrate |
| Spousal maintenance in a divorce | Supreme Court | Part of the matrimonial action |
| Family offense petition | Family Court, under Article 8 | Civil. Can run alongside a criminal prosecution for the same incident. |
| Orders of protection | Family Court, criminal court, or Supreme Court | More than one can be in force at the same time and the terms must be reconciled |
| Paternity and parentage | Family Court | Often paired with a support petition |
| Child abuse and neglect, Article 10 | Family Court | Brought by the child protective agency, not by a prosecutor |
| Juvenile delinquency and PINS | Family Court | For conduct by a minor |
| Guardianship and adoption | Family Court | Surrogate's Court also handles certain adoptions and guardianships |
Custody and visitation
These are two separate questions in New York, and people routinely argue about one while meaning the other.
It governs the major decisions: education, medical care, religion. Joint legal custody means both parents share that authority, sometimes with one parent given the final say in named areas. Sole legal custody puts those decisions with one parent, and the other ordinarily still has parenting time.
Also called residential custody. Joint physical custody does not have to mean a precisely equal schedule, and courts often name one home as the primary residence while giving the other parent substantial time.
The standard is the best interests of the child, and there is no statutory preference for either parent. Courts look at who has actually been doing the caregiving, each parent's fitness and stability, the child's relationships and adjustment, and whether each parent will support the child's relationship with the other. Domestic Relations Law 240 requires the court to consider the effect of domestic violence where it is alleged.
An Attorney for the Child represents the child, not either parent, and is not the same thing as a forensic evaluator. Where the child has the capacity to form a considered view, the AFC generally argues for what the child wants. Appointment is not automatic, and the cost can be assessed against one or both parents, so do not assume it is free.
Courts prefer to restrict contact rather than end it, using structured schedules or supervised visits where there are safety concerns such as violence, substance abuse or a risk of abduction. Complete denial is an extraordinary remedy. Equally, a custodial parent generally cannot cancel court-ordered parenting time on their own; the remedy is to go back to court, not to stop the visits.
To modify a final custody order you generally have to show a substantial change in circumstances since it was made, and that the change you want is in the child's best interests. Relocation, a serious decline in a parent's functioning, repeated interference with parenting time or a schedule that no longer works can qualify. An ordinary argument does not.
Child support
That single fact catches more people than any other. The obligation does not end when a child turns eighteen or finishes high school. It ordinarily continues to age twenty-one unless the child is emancipated.
| Children | Share of combined parental income |
|---|---|
| One child | 17% |
| Two children | 25% |
| Three children | 29% |
| Four children | 31% |
| Five or more | No less than 35% |
Under the Child Support Standards Act these percentages are applied to combined parental income up to a statutory cap, then divided between the parents in proportion to what each earns. The cap is currently $193,000, raised from $183,000 on 1 March 2024 and adjusted every two years. A court may apply the percentages to income above the cap but is not required to, and it can depart from the guideline figure where the statutory factors justify it. Because the chart is revised on a set cycle, check the current official figure before relying on this.
Beyond the basic number
Add-ons
Basic support is not the whole order. Health insurance, unreimbursed medical and dental costs, and child care needed so the custodial parent can work or study are generally shared in proportion to income. Education costs, including private school or college, are not automatic in every case and depend on the child's needs, the family's history and the parents' circumstances.
Who hears it
In Family Court most support matters go first to a Support Magistrate, who takes testimony and issues the order. If you believe the Magistrate got it wrong, you file written objections and a Family Court judge reviews them. The deadline is short, generally thirty days from service of the order with notice of entry, or thirty-five if it was served by mail. It is a review of the record, not a fresh trial.
Enforcement
New York enforces support hard: income withholding from wages, interception of state and federal tax refunds, credit reporting, and suspension of driver's, professional and recreational licenses. Willful nonpayment can bring contempt and, in an appropriate case, jail. Incarceration is not automatic and requires findings on ability to pay and willfulness.
Changing the amount
There are three routes: a substantial change in circumstances, the passage of three years since the order was made or last adjusted, or a change of at least fifteen percent in either parent's income. The fifteen percent ground generally requires the change to be involuntary. A modification usually runs from the date you file, so arrears already built up are not wiped out by a later reduction. If you cannot pay, file. Do not simply stop.
Orders of protection
Family Court order
Issued in a Family Court proceeding, including a family offense, custody, support or child protective case. It can require you to stay away, stop contact, surrender firearms, and comply with custody and visitation conditions. Violating it can bring a Family Court contempt proceeding and a separate criminal charge.
Criminal court order
Issued in connection with a criminal case, usually at arraignment, often as a condition of release. It can control contact with the complainant and with children. Violating it can be prosecuted as criminal contempt and can also cost you your release conditions.
Supreme Court order
Issued by Supreme Court, usually inside a matrimonial or divorce action. It can address contact, the marital residence, the children, property and firearms. It is distinct from the other two, and the provisions have to be coordinated.
Temporary versus final
A temporary order is interim and is not a finding that you did anything. It is still fully enforceable while it is in effect. A final order follows a disposition, a fact-finding, or your consent. An order entered by consent is not the same as one entered after a hearing, and that difference can matter later.
Violations
This catches people who believe an order is a formality, or that the protected person can waive it. They cannot. An invitation to come over does not suspend a court order, and answering a text can be the act that produces a new arrest.
A violation is not established just because contact happened. The prosecution generally has to prove the order, that you were served or actually knew of it, a prohibited act, and the required intent. Each of those is contestable.
Questions
At 101 County Seat Drive in Mineola, on the first and second floors, with the main number 516-493-4000. Note that this changed recently: the Westbury courthouse at 1200 Old Country Road closed permanently, and both pending and new Family Court matters moved to the Mineola complex effective June 2, 2025. Older directions online still send people to Westbury.
No. Only Supreme Court can grant a divorce or divide marital property. Family Court can decide custody, visitation, child support, paternity, family offense petitions and child protective matters, and it can issue orders of protection. Custody and support can also be decided in Supreme Court when they are part of a divorce.
Broader than most people expect. It generally covers people related by blood or marriage, spouses and former spouses, people who have a child in common, and people who are or were in an intimate relationship. The relationship does not have to be sexual, and the court weighs its nature, duration and closeness. A casual acquaintance or an ordinary business relationship generally does not qualify.
Not automatically. Family Court decides custody on the best interests of the child, and a pending charge is not proof of anything. But the court can consider the underlying conduct, whether there was violence or a weapon, whether a child witnessed it, the terms of any order of protection, and your compliance with court orders. A conviction for domestic violence or a crime involving a child can be powerful evidence without being decisive.
Effectively yes. A child protective proceeding under Article 10 of the Family Court Act asks a different question from the criminal case: whether a child is abused or neglected and what intervention is needed. It can proceed at the same time as the criminal matter, no criminal conviction is required for it to go forward, and a dismissal of the criminal case does not automatically end it. Speaking to a caseworker without advice is one of the more common ways people damage both cases at once.
Reviewed by James E. Toner, Esq.
Last reviewed August 2026
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Primary sources
The child support income cap and the poverty and self support figures are revised on a set cycle, so check the official chart above for the current numbers rather than relying on any date-stamped page. Nothing here is a substitute for advice about your own case.
Speak with a lawyer
If there is a criminal case running alongside your Family Court matter, get advice before you put anything in writing. The consultation is free and the phone is answered around the clock.
(516) 294-1133
Toner Law Firm
100 Garden City Plaza, Suite 400
Garden City, New York 11530
Attorney Advertising. Nothing on this page is legal advice, and contacting the firm does not create an attorney-client relationship. Prior results do not guarantee a similar outcome.
