It is understandable that anyone who does not work for the courts or does not represent
clients in court assume any court matter involving spouses or children is heard in family court.
The matter involves a family or couple, right? So why not always head to family court when you
need some sort of assistance involving a family or couple?
That is not always the case. The determinator is usually whether the spouses are married
and looking to file for divorce or enforce certain terms of a final Judgment of Divorce. If a party
wants to begin a divorce, they start by filing a Summons with Notice in the County Clerk’s
Office located on the first floor of 92 Franklin in downtown Buffalo, NY. The initial fee to file is
If the parties are unable to come to an agreement outside of court, the parties will be
scheduled for a first court appearance known as a Preliminary Conference, which takes place in
Supreme Court located at 50 Delaware in downtown Buffalo, NY. Here, the parties will discuss
and handle how finances and children matters will be addressed.
If there are children under 18 of the marriage, the Judge will ask the parties whether the
court needs to appoint an Attorney for the Child or AFC. An AFC is needed when the parties are
unable to agree on custody and visitation involving the children. An AFC serves as the children’s
attorney. The AFC expresses the children’s wishes. Depending on the parties’ income, the AFC
is paid for by the state or paid by the parties.
Even if the parties do not share any children, but are looking to file for divorce or enforce
the terms of a Judgment of Divorce, the filing begins the same way at the County Clerk’s office
and is handled by the Supreme Court.
A proceeding in Supreme Court ends by either a Settlement Agreement by the parties or a
decision by the Judge. The parties are then bound by a Judgment of Divorce including all the
terms either agreed on or decided by the Judge. What if months or years down the road one of
the spouses is not following the Judgment of Divorce regarding finances or the marital home?
Did a spouse not refinance the house as they agreed they would? Did they not transfer title over
on a car? This is when a party would return to supreme court to ask the court to enforce the terms
of the Judgment of Divorce. A party can begin this enforcement by filing a motion at the County
Clerk’s Office.
In contrast, family court is where a party files for custody, visitation, and/or child support
when they are not married to the other party. This process begins by filing a petition on the
fourth floor of family court located at 1 Niagara Square in downtown Buffalo, NY. There is not a
fee to file a petition in family court. The parties can either file a new petition or file a petition to
modify or enforce a previous court Order.
What if the parties were married and now divorced, but now want to change the terms
involving the children that were laid out in their Judgment of Divorce? That is when the parties
will file in family court. The family court will now hear issues regarding the children. Whether it is that one of the parties wants to modify custody and visitation, modify child support, or one of the parties is not following the terms they agreed on in their Judgment of Divorce.
It is important to consult an attorney to help you better understand where you should file
for your matter to be heard. An attorney can help you draft a strong petition or motion that will
better help you achieve the relief you are seeking. Additionally, an attorney can help you with
the nuances as to whether you can file or if you must wait for some type of occurrence.
Examples include whether enough time has gone by since a previous court Order or whether
circumstances have changed to warrant a modification.