Below are some of the more common motions you may need to file in New York Family Court.
Motion to Dismiss
This motion is used to ask the court to dismiss the other party’s case. This can be for different reasons, such as:
- Failure to state a claim or a cause of action. This means that even if everything the other party says is true, the law does not allow the court to give them what they want.
- Service was not proper. This means that you were not served the court papers in the right way. The court has strict rules about how to provide notice to someone when a case is filed against them. If these rules are not followed, the case may get dismissed.
- Another case is already going on. This means that there is another open court case between the same parties about the same issue. The new case may then get dismissed.
Motion to Vacate a Default Order
Typically, a default order is an order that was entered because one party did not show up to court. If a default order was entered against you, you should file this motion as soon as you learn about the order. This motion is used to ask the court to vacate, or cancel, the default order. In the Affirmation in Support, you should explain two things:
1. Why you missed the court date. The two most common reasons for missing court are:
- Excusable default: This means you missed court for a good reason. For example, you were in the hospital or were told by someone that you did not have to go to court. If you have documents to support this explanation (like a hospital record or doctor’s note), you can attach it to your motion as an exhibit.
- Lack of personal jurisdiction: This means that you never received notice that you were supposed to go to court or that you were not properly served.
2. Why the outcome of the case may have been different if you were there. For example, you would have been able to prove your income, so the child support amount would have been different.
If the court grants your motion, then the case can be put back on the court’s calendar. If the court denies your motion and you were the one who started the case, you may need to start your case all over again by filing a new petition.
Motion to Modify a Temporary Order
If you want to modify, or change, a final order, you typically need to file a petition. If you want to modify a temporary order, you can ask the court to do so at your next court appearance. In some cases, you may want to file a motion to modify an order before your next court date. Below are some common reasons:
- You want to change visitation. Examples of this may be to ask for visitation to no longer be supervised or to decrease visits because the other party has not seen the child.
- You need to change the terms of an order of protection. For example, you want the order of protection to now say that the other party should stay away from your job or your home.
In the Affirmation in Support, you need to explain what changed after the order was issued. The court generally will not consider things that happened before the order was issued.
Keep in mind that the court is unlikely to change any temporary orders before the next court date unless there is a very good reason, such as your child being in danger.
Order to Show Cause
An Order to Show Cause is like an emergency motion. You can file an Order to Show Cause when you need immediate help from the court or if you need a sooner court date.
Motion to Produce Information or Documents
If the other party has not given you documents or evidence they were supposed to give you, you can file a motion asking the court to order them to do so. Typically, you must show that you already asked the other party for these documents before filing this motion. For more information, see our guide on “Discovery.”
