New York Family Court Act Article 10: Abuse and Neglect

Depending on whether you are in New York City or upstate in Rockland or Westchester Counties, ACS or CPS, the Administration for Child Services and Child Protective Services respectively, may file an Abuse and Neglect petition under Family Court Act Article 10 to protect a child under the age of 18 who the agency believes has been abused or neglected or is in danger of being abused or neglected. As frightening as it is paralyzing, it is of great import, and often critical to a strong defense against an Abuse and Neglect petition, that you retain the right Family Court lawyer to advocate in your best interests.

• New York Family Law: Custody, Visitation, Child Support, Abuse and Orders of Protection Information Page

Under New York Family Court Act, Section 1012, an “abused child” means a child less than eighteen years of age whose parent or other person legally responsible for his or her care has inflicted injury upon the child, has created a substantial risk of injury, or encourages the child to engage in certain criminal acts. Under the same law, a "neglected child" means a child less than eighteen years of age whose condition has been impaired by a parent failing to exercise a minimum degree of care, whose parents have failed to provide enough food, clothing, shelter, education, or medical care, or whose parents have allowed the child to suffer harm by a lack of adequate supervision, excessive corporal punishment, or misusing drugs or alcohol. Because of the invasive nature of these proceedings involving abuse and neglect, it is essential to understand the law, your rights and potential legal protections with your Family Court lawyer before matters go from bad to significantly worse.

A child may be removed even before an Abuse or Neglect petition is filed if deemed necessary by the child protective agency, even without a court order. CPS or ACS will likely file a petition pursuant to NY Family Court Act Article 10 shortly thereafter, but if not, the parents may demand a court hearing in a very short period of time. The purpose of hearing would be to decide whether or not the child should be returned home. Being accused of Abuse and/or Neglect can be devastating to a parent on many levels, including psychological and reputational, not to mention the potentially traumatic experience for the child of being removed from their home and placed in another home or facility.

As with other cases in Family Court, the petition and a summons must be personally served upon the parents or the persons who had responsibility for the child at the time of the abuse or neglect. If those persons are not the parents of the child, the parents must also be served and included in the case. Other close relatives may also file guardianship or custody petitions in the context of an Abuse/Neglect case in an attempt to take over care of the child. If the allegations of abuse or neglect are justified and supported, having a relative petition and establish guardianship can often be the best result for the child, rather than placement elsewhere.

The parents alleged to have neglected or abused the child can admit to the neglect or dispute it and proceed to a trial or "Hearing" in which Children Protective Services or Administration for Children’s Services will present evidence of the neglect or abuse, and the parent(s) will have an opportunity to present their own evidence and challenge the agency's evidence. This trial can be harrowing, especially where the allegations are particularly serious. Simply, having a knowledgeable and experienced attorney is critical.

If the court finds that the allegations have not been proven, the petition will be dismissed and the child returned to the home. If, on the other hand, the court finds that the child has been abused or neglected, the judge will order a Dispositional Hearing, at which time the judge will decide what remedy is in the best interest of the child. Those remedies include releasing the child to the parents, on the condition that they not commit any more abusive or neglectful acts or omissions,, releasing the child to the parents with supervision and services provided by the agency, placing the child in foster care for a period of time while services are provided to the parents in the hope of an eventual return of the child to the parents, and/or an order of protection.

If a child is placed in foster care, the case remains under the court's jurisdiction and on the court's calendar until permanency is established, meaning the child is no longer subject to possible return to the parents. The first permanency hearing must be held within eight months of the child being placed in foster care. Subsequent hearings must be held within six months of each previous hearing.

The allegations in an Abuse/Neglect proceeding can often mirror, or be literally accompanied by, criminal charges such as Endangering the Welfare of a Child, PL 260.10, and Criminal Possession of a Controlled Substance, PL 220.03. Defending allegations of this kind can be quite different from a trial to establish and argue for custody. Having a law who is not only experienced in Family Court, but knowledgeable in defending serious criminal or quasi-criminal allegations is essential to the success or failure of the case against you.

Be as proactive and prepared as you can. Don’t let the humiliation and psychological trauma of an Abuse/Neglect allegation destroy your life and that of your family.

Call the New York family law lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.