Main Content
New York Domestic Relations Law Fall 2020
Selected Article 10 Provisions - Preliminary Procedures
FCA 1011. Purpose
This article is designed to establish procedures to help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being. It is designed to provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met.
FCA § 1012. Definitions
When used in this article and unless the specific context indicates otherwise:
(a) “Respondent” includes any parent or other person legally responsible for a child's care who is alleged to have abused or neglected such child;
(b) “Child” means any person or persons alleged to have been abused or neglected, whichever the case may be;
(c) “A case involving abuse” means any proceeding under this article in which there are allegations that one or more of the children of, or the legal responsibility of, the respondent are abused children;
(d) “Drug” means any substance defined as a controlled substance in section thirty-three hundred six of the public health law;
(e) “Abused child” means a child less than eighteen years of age whose parent or other person legally responsible for his care
(i) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or
(ii) creates or allows to be created a substantial risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ, or
(iii) (A) commits, or allows to be committed an offense against such child defined in article one hundred thirty of the penal law; (B) allows, permits or encourages such child to engage in any act described in sections 230.25, 230.30, 230.32 and 230.34-a of the penal law; (C) commits any of the acts described in sections 255.25, 255.26 and 255.27 of the penal law; (D) allows such child to engage in acts or conduct described in article two hundred sixty-three of the penal law; or (E) permits or encourages such child to engage in any act or commits or allows to be committed against such child any offense that would render such child either a victim of sex trafficking or a victim of severe forms of trafficking in persons pursuant to 22 U.S.C. 7102 as enacted by public law 106-386 or any successor federal statute; (F) provided, however, that (1) the corroboration requirements contained in the penal law and (2) the age requirement for the application of article two hundred sixty-three of such law shall not apply to proceedings under this article.
(f) “Neglected child” means a child less than eighteen years of age
(i) whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care
(A) in supplying the child with adequate food, clothing, shelter or education in accordance with the provisions of part one of article sixty-five of the education law, or medical, dental, optometrical or surgical care, though financially able to do so or offered financial or other reasonable means to do so, or, in the case of an alleged failure of the respondent to provide education to the child, notwithstanding the efforts of the school district or local educational agency and child protective agency to ameliorate such alleged failure prior to the filing of the petition; or
(B) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment; or by misusing a drug or drugs; or by misusing alcoholic beverages to the extent that he loses self-control of his actions; or by any other acts of a similarly serious nature requiring the aid of the court; provided, however, that where the respondent is voluntarily and regularly participating in a rehabilitative program, evidence that the respondent has repeatedly misused a drug or drugs or alcoholic beverages to the extent that he loses self-control of his actions shall not establish that the child is a neglected child in the absence of evidence establishing that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as set forth in paragraph (i) of this subdivision; or
(ii) who has been abandoned, in accordance with the definition and other criteria set forth in subdivision five of section three hundred eighty-four-b of the social services law, by his parents or other person legally responsible for his care.
(g) “Person legally responsible” includes the child's custodian, guardian,1 any other person responsible for the child's care at the relevant time. Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child.
...
(l) “Parent” means a person who is recognized under the laws of the state of New York to be the child's legal parent.
(m) “Relative” means any person who is related to the child by blood, marriage or adoption and who is not a parent, putative parent or relative of a putative parent of the child.
(n) “Suitable person” means any person who plays or has played a significant positive role in the child's life or in the life of the child's family.
...
§ 1024. Emergency removal without court order
(a) A peace officer, acting pursuant to his or her special duties, police officer, ... shall take all necessary measures to protect a child's life or health including, when appropriate, taking or keeping a child in protective custody, ...without an order ...and without the consent of the parent or other person legally responsible for the child's care, regardless of whether the parent or other person legally responsible for the child's care is absent, if
(i) such person has reasonable cause to believe that the child is in such circumstance or condition that his or her continuing in said place of residence or in the care and custody of the parent or person legally responsible for the child's care presents an imminent danger to the child's life or health; and
(ii) there is not time enough to apply for an order under section one thousand twenty-two of this article.
(b) If a person authorized by this section removes or keeps custody of a child, he shall
(i) bring the child immediately to a place approved for such purpose by the local social services department, unless the person is a physician treating the child and the child is or will be presently admitted to a hospital, and
(ii) make every reasonable effort to inform the parent or other person legally responsible for the child's care of the facility to which he has brought the child, and
(iii) give, coincident with removal, written notice to the parent or other person legally responsible for the child's care of the right to apply to the family court for the return of the child pursuant to [§ 1028] of this act, and of the right to be represented by counsel in proceedings brought pursuant to this article and procedures for obtaining counsel, if indigent.
Such notice shall also include the name, title, organization, address and telephone number of the person removing the child, the name, address, and telephone number of the authorized agency to which the child will be taken, if available, the telephone number of the person to be contacted for visits with the child, and the information required by section one thousand twenty-three of this act. Such notice shall be personally served upon the parent or other person at the residence of the child provided, that if such person is not present at the child's residence at the time of removal, a copy of the notice shall be affixed to the door of such residence and a copy shall be mailed to such person at his or her last known place of residence within twenty-four hours after the removal of the child. If the place of removal is not the child's residence, a copy of the notice shall be personally served upon the parent or person legally responsible for the child's care forthwith, or affixed to the door of the child's residence and mailed to the parent or other person legally responsible for the child's care at his or her last known place of residence within twenty-four hours after the removal.
An affidavit of such service shall be filed with the clerk of the court within twenty-four hours of serving such notice exclusive of weekends and holidays pursuant to the provisions of this section. The form of the notice shall be prescribed by the chief administrator of the courts. Failure to file an affidavit of service as required by this subdivision shall not constitute grounds for return of the child...
§ 1027. Hearing and preliminary orders after filing of petition
(a) (i) In any case where the child has been removed without court order ... the family court shall hold a hearing. Such hearing shall be held no later than the next court day after the filing of a petition to determine whether the child's interests require protection, including whether the child should be returned to the parent or other person legally responsible, pending a final order of disposition and shall continue on successive court days, if necessary, until a decision is made by the court.
Upon such hearing, if the court finds that removal is necessary to avoid imminent risk to the child's life or health, it shall remove or continue the removal of the child. If the court makes such a determination that removal is necessary, the court shall immediately inquire as to ... any efforts made by the local social services district to locate relatives of the child, including any non-respondent parent and all of the child's grandparents, as required .... The court shall also inquire as to whether the child, if over the age of five, has identified any relatives who play or have played a significant positive role in his or her life and whether any respondent parent or any non-respondent parent has identified any suitable relatives. Such inquiry shall include whether any relative who has been located has expressed an interest in becoming a foster parent for the child or in seeking custody or care of the child....
§ 1027-a. Placement of siblings; contact with siblings
(a) When a social services official removes a child pursuant to this part, such official shall place such child with his or her minor siblings or half-siblings who have been or are being remanded to or placed in the care and custody of such official unless, in the judgment of such official, such placement is contrary to the best interests of the children.
§ 1028. Application to return child temporarily removed
(a) Upon the application of the parent or other person legally responsible for the care of a child temporarily removed under this part or upon the application of the child's attorney for an order returning the child, the court shall hold a hearing to determine whether the child should be returned
(i) unless there has been a hearing pursuant to [§ 1027] of this article on the removal of the child at which the parent or other person legally responsible for the child's care was present and had the opportunity to be represented by counsel, or
(ii) upon good cause shown.
Except for good cause shown, such hearing shall be held within three court days of the application and shall not be adjourned. Upon such hearing, the court shall grant the application, unless it finds that the return presents an imminent risk to the child's life or health. If a parent or other person legally responsible for the care of a child waives his or her right to a hearing under this section, the court shall advise such person at that time that, notwithstanding such waiver, an application under this section may be made at any time during the pendency of the proceedings.
(b) In determining whether temporary removal of the child is necessary to avoid imminent risk to the child's life or health, the court shall consider and determine in its order whether continuation in the child's home would be contrary to the best interests of the child and where appropriate, whether reasonable efforts were made prior to the date of the hearing to prevent or eliminate the need for removal of the child from the home and where appropriate, whether reasonable efforts were made after removal of the child to make it possible for the child to safely return home.
(c) If the court determines that reasonable efforts to prevent or eliminate the need for removal of the child from the home were not made but that the lack of such efforts was appropriate under the circumstances, the court order shall include such a finding.
(d) If the court determines that reasonable efforts to prevent or eliminate the need for removal of the child from the home were not made but that such efforts were appropriate under the circumstances, the court shall order the child protective agency to provide or arrange for the provision of appropriate services or assistance to the child and the child's family ... notwithstanding the fact that a petition has been filed.
(e) The court may issue a temporary order of protection ... as an alternative to or in conjunction with any other order or disposition authorized under this section.
(f) The court shall also consider and determine whether imminent risk to the child would be eliminated by the issuance of a temporary order of protection, ... directing the removal of a person or persons from the child's residence.
§ 1030. Order of visitation by a respondent
(a) A respondent shall have the right to reasonable and regularly scheduled visitation with a child in the temporary custody of a social services official … unless limited by an order of the family court.
(b) A respondent who has not been afforded such visitation may apply to the court for an order …
(c) A respondent shall be granted reasonable and regularly scheduled visitation unless the court finds that the child's life or health would be endangered thereby, but the court may order visitation under the supervision of an employee of a local social services department upon a finding that such supervised visitation is in the best interest of the child.
(d) An order made under this section may be modified by the court for good cause shown, upon application by any party or the child's attorney, and upon notice of such application to all other parties and the child's attorney, who shall be afforded an opportunity to be heard thereon.
(e) An order made under this section shall terminate upon the entry of an order of disposition pursuant to part five of this article.
This book, and all H2O books, are Creative Commons licensed for sharing and re-use with the exception of certain excerpts. Any excerpts from the Restatements of the Law, Principles of the Law, and the Model Penal Code are copyright by The American Law Institute. Excerpts are reproduced with permission, not as part of a Creative Commons license.