Child Abuse or Neglect Proceedings

Child abuse and neglect are sensitive topics no person enjoys talking about, but being educated about abuse and neglect is the first step towards making a difference for abused or neglected children. The attorneys at Westchester Matrimonial have the skills and knowledge to help you navigate these difficult proceedings, and promote the best interests of the child.

Article 10 of the Family Court Act is meant to help protect children from physical, mental, and emotional harm by establishing procedures for handling allegations of abuse and/or neglect. This Article is designed to provide both the parent and the child due process of law for determining whether the state must intervene to protect the best interest of the child. While Family court has exclusive jurisdiction over abuse/neglect proceedings, there could be simultaneous criminal proceedings.

An “abused child” is defined in New York Family Court Act § 1012  as a person, less than eighteen years of age, whose parent/legal caregiver:

  • Causes or allows a non-accidental injury to the child to occur that causes or creates a substantial risk of death, disfigurement, or physical or emotional impairment;
  • Creates, or allows to be created, a substantial risk of death, disfigurement, or physical or emotional impairment; or
  • Encourages/enables the child to engage in certain criminal acts.

A “neglected child” is defined under the same statute. A neglected child is a person less than eighteen years of age whose parent/legal caregiver:

  • Has impaired, or is in imminent danger of impairing, the child’s well-being, by failing to exercise the minimum degree of care necessary to provide adequate care;
  • Has failed to provide adequate food, clothing, shelter, education, or medical care;
  • Has allowed the child to suffer harm by a lack of adequate supervision;
  • Executes excessive corporal punishment; or
  • Misuses drugs or alcohol.

If an authorized government agency, such as Child Protective Services, conducts an investigation and determines it is necessary for a child to be removed from their home for that child’s safety, removal can occur on an emergency basis, without a court order, before an abuse or neglect petition has been filed.  In this case, the parent(s) have the right to file a petition to receive a fair hearing in regards to determining the welfare of their child in a short period of time. The petition and a summons for an abuse or neglect proceeding must be personally served upon the parent(s) or legal caregiver of the child at the time of the alleged abuse or neglect. If the accused is not the parent(s) of the child, the parent(s) must also be served and included in the case.

After service of all parties, a fact-finding hearing will occur to determine, by a preponderance of the evidence, whether abuse/neglect occurred. During the fact-finding hearing, the court can consider evidence such as:

  • Abuse of another child;
  • Proof of injuries that would not normally be sustained without an action that directly harms the child, or resulting from failure to act that has the same effect;
  • Proof of misuse of alcohol or drugs, to such an extent that it causes, but is not limited to, a substantial state of stupor, unconsciousness, hallucination, incompetence, or substantial manifestation of irrationality;
  • Any record made in the regular course of business from a hospital or other similar professional that relates to the treatment of the alleged injuries;
  • Any report filed in a statewide abuse/neglect database;
  • Previous statements regarding abuse/neglect, if corroborated;
  • Proof of emotional or mental impairment resulting from an unwillingness or inability to exercise the minimum degree of care necessary to adequately raise a child.

If the court finds that the child has been abused or neglected, a Dispositional Hearing will follow. In a Dispositional Hearing, a judge will decide what course of action is in the best interest of the child. The remedy is not always removal—sometimes the child will be returned with a set of conditions, such as the use of family/social services to help ensure there are no further abusive or neglectful acts perpetuated against the child. Other remedies include placing the child in foster care for a period of time while the parent(s) receive services in the hopes of returning the child to a safe, stable environment, and/or entering an order of protection against one or both of the parents on behalf of the child.

If a child is placed in foster care, the case remains within the court’s jurisdiction until a time when it is determined that there is no possibility of the child being returned to the parents.

This is called a Permanency Hearing. The first Permanency Hearing must be held within eight months of the child being placed in foster care, and each subsequent hearing must be held within six months of the prior hearing until a final disposition is made.

Abuse and neglect proceedings are extremely emotional and can cause significant stress on a family, especially a child. The attorneys at Westchester Matrimonial focus exclusively on family/matrimonial law so they can provide you the best tools to navigate these proceedings because, at Westchester Matrimonial, we believe in family first.


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