New York State Law

Family Court Law

Consolidated Laws of NY's Family Act

Part 1 - Article 10 - Family Court

JURISDICTION

  S 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.

  S 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) commits, or allows to be committed an offense against such child
  defined in article one hundred thirty of the penal law; allows,  permits
  or  encourages  such  child  to  engage in any act described in sections
  230.25, 230.30 and 230.32 of the penal law;  commits  any  of  the  acts
  described  in  sections  255.25,  255.26 and 255.27 of the penal law; or
  allows such child to engage in acts or conduct described in article  two
  hundred  sixty-three  of  the  penal law provided, however, that (a) the
  corroboration requirements contained in the penal law and  (b)  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
    (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, 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.
    (h) "Impairment of emotional health"  and  "impairment  of  mental  or
  emotional  condition"  includes  a  state  of  substantially  diminished
  psychological or  intellectual  functioning  in  relation  to,  but  not
  limited  to, such factors as failure to thrive, control of aggressive or
  self-destructive impulses, ability to think and reason, or acting out or
  misbehavior,  including  incorrigibility,  ungovernability  or  habitual
  truancy;  provided,  however,  that  such  impairment  must  be  clearly
  attributable to the unwillingness or  inability  of  the  respondent  to
  exercise a minimum degree of care toward the child.
    (i)  "Child  protective  agency" means the child protective service of
  the appropriate local  department  of  social  services  or  such  other
  agencies  with  whom the local department has arranged for the provision
  of child protective services under the local plan for  child  protective
  services  or an Indian tribe that has entered into an agreement with the
  state department of social services pursuant to section  thirty-nine  of
  the social services law to provide child protective services.
    (j)  "Aggravated  circumstances"  means  where a child has been either
  severely or repeatedly  abused,  as  defined  in  subdivision  eight  of
  section three hundred eighty-four-b of the social services law; or where
  a child has subsequently been found to be an abused child, as defined in
  paragraph  (i)  or (iii) of subdivision (e) of this section, within five
  years after return home following placement in foster care as  a  result
  of being found to be a neglected child, as defined in subdivision (f) of
  this section, provided that the respondent or respondents in each of the
  foregoing  proceedings  was  the same; or where the court finds by clear
  and convincing evidence that the parent of a child in  foster  care  has
  refused  and has failed completely, over a period of at least six months
  from the date of removal, to engage in services necessary  to  eliminate
  the  risk  of abuse or neglect if returned to the parent, and has failed
  to secure services on his or her own or otherwise adequately prepare for
  the return home and, after being informed by  the  court  that  such  an
  admission  could  eliminate the requirement that the local department of
  social services provide reunification services to the parent, the parent
  has stated in court under oath that he or she  intends  to  continue  to
  refuse  such necessary services and is unwilling to secure such services
  independently  or  otherwise  prepare  for  the  child's  return   home;
  provided,  however,  that if the court finds that adequate justification
  exists for the failure to engage in or secure such  services,  including
  but  not  limited to a lack of child care, a lack of transportation, and
  an inability to attend services that conflict  with  the  parent's  work
  schedule,  such failure shall not constitute an aggravated circumstance;
  or where a court has determined a child five days  old  or  younger  was
  abandoned  by  a  parent with an intent to wholly abandon such child and
  with the intent that the child be safe from physical  injury  and  cared
  for in an appropriate manner.
    (k)  "Permanency  hearing"  means  a  hearing  held in accordance with
  section one  thousand  eighty-nine  of  this  act  for  the  purpose  of
  reviewing the foster care status of the child and the appropriateness of
  the permanency plan developed by the social services district or agency.

  S 1013. Jurisdiction. (a)  The  family court has exclusive original
  jurisdiction over proceedings under this article alleging the  abuse  or
  neglect of a child.
    (b)  For the protection of children, the family court has jurisdiction
  over proceedings under this article  notwithstanding  the  fact  that  a
  criminal court also has or may be exercising jurisdiction over the facts
  alleged in the petition or complaint.
    (c)  In  determining the jurisdiction of the court under this article,
  the age of the child at  the  time  the  proceedings  are  initiated  is
  controlling.
    (d)  In  determining the jurisdiction of the court under this article,
  the child need not be currently in the care or custody of the respondent
  if the court otherwise has jurisdiction over the matter.

  S 1014. Transfer to and from family court; concurrent proceedings. (a)
  The  family court may transfer upon a hearing any proceedings originated
  under this article to an appropriate criminal court or  may  refer  such
  proceeding  to  the  appropriate district attorney if it concludes, that
  the processes of the family court  are  inappropriate  or  insufficient.
  The  family  court  may continue the proceeding under this article after
  such transfer or referral and if the proceeding is continued, the family
  court may enter any preliminary order,  as  authorized  by  section  one
  thousand  twenty-seven,  in  order to protect the interests of the child
  pending a final order of disposition.
    (b) Any criminal  complaint  charging  facts  amounting  to  abuse  or
  neglect  under  this article may be transferred by the criminal court in
  which the complaint was made to the family court in the county in  which
  the  criminal  court is located, unless the family court has transferred
  the proceeding to the criminal court. The family court shall then,  upon
  a  hearing,  determine  what  further  action  is appropriate. After the
  family court makes this determination, any  criminal  complaint  may  be
  transferred back to the criminal court, with or without retention of the
  proceeding  in the family court, or may be retained solely in the family
  court, or if there appears to be no basis for the complaint, it  may  be
  dismissed by the family court. If the family court determines a petition
  should  be  filed, proceedings under this act shall be commenced as soon
  as practicable.
    (c)  Nothing  in  this  article  shall  be  interpreted  to   preclude
  concurrent proceedings in the family court and a criminal court.
    (d)  In  any hearing conducted by the family court under this section,
  the court may grant the respondent or potential  respondent  testimonial
  immunity in any subsequent criminal court proceeding.
  
  S 1015. Venue. (a) Proceedings under this article may be originated in
  the county in which the child resides or is domiciled at the time of the
  filing  of  the  petition  or  in  the county in which the person having
  custody of the child resides or is domiciled. For the purposes  of  this
  section,  residence  shall  include  a  dwelling  unit or facility which
  provides shelter to homeless persons or  families  on  an  emergency  or
  temporary basis.
    (b)  If  in  another  proceeding  under this act the court directs the
  filing of an abuse or neglect  petition,  the  venue  provision  of  the
  article  under  which the other proceeding is brought and the provisions
  of part seven of article one shall apply.
  
  S 1015-a. Court-ordered  services.  In  any  proceeding  under  this
  article, the court may order a social services official  to  provide  or
  arrange for the provision of services or assistance to the child and his
  or   her   family  to  facilitate  the  protection  of  the  child,  the
  rehabilitation of the family and, as appropriate, the discharge  of  the
  child  from  foster  care. Such order shall not include the provision of
  any service or assistance to the child and his or her  family  which  is
  not  authorized  or  required  to  be  made  available  pursuant  to the
  comprehensive annual services program plan then in effect. In any  order
  issued  pursuant to this section the court may require a social services
  official  to  make  periodic  progress  reports  to  the  court  on  the
  implementation  of  such order. Nothing in such order shall preclude any
  party from exercising  its  rights  under  this  article  or  any  other
  provision  of  law relating to the return of the care and custody of the
  child by a social services official to the parent, parents or  guardian.
  Violation  of  such  order  shall  be  subject to punishment pursuant to
  section seven hundred fifty-three of the judiciary law.
  
  S 1016. Appointment of attorney for the child. The court shall appoint
  an  attorney  to  represent  a  child  who  has been allegedly abused or
  neglected upon the earliest occurrence of any of the following: (i)  the
  court receiving notice, pursuant to paragraph (iv) of subdivision (b) of
  section  one  thousand twenty-four of this act, of the emergency removal
  of the child; (ii) an application for an order for removal of the  child
  prior  to  the  filing  of  a petition, pursuant to section one thousand
  twenty-two of this act; or (iii) the filing of a petition alleging abuse
  or neglect pursuant to this article.
    Whenever an attorney has been appointed by the family  court  pursuant
  to  section two hundred forty-nine of this act to represent a child in a
  proceeding under this article, such appointment shall  continue  without
  further  court  order  or appointment during (i) an order of disposition
  issued by the court pursuant to section one thousand fifty-two  of  this
  article directing supervision, protection or suspending judgment, or any
  extension  thereof; (ii) an adjournment in contemplation of dismissal as
  provided for in section one thousand thirty-nine of this article or  any
  extension  thereof;  or  (iii) the pendency of the foster care placement
  ordered pursuant to section one thousand fifty-two of this article.  All
  notices  and  reports required by law shall be provided to such attorney
  for the child. Such appointment shall terminate upon the  expiration  of
  such  order, unless another appointment of an attorney for the child has
  been made by the court or unless such attorney makes application to  the
  court  to  be  relieved of his or her appointment. Upon approval of such
  application to be relieved, the court shall immediately appoint  another
  attorney  for  the child to whom all notices and reports required by law
  shall be provided.
    The attorney for the child shall be entitled to compensation  pursuant
  to  applicable  provisions  of  law  for  services  rendered  up  to and
  including disposition of the petition. The attorney for the child shall,
  by separate  application,  be  entitled  to  compensation  for  services
  rendered subsequent to the disposition of the petition.
    Nothing  in  this section shall be construed to limit the authority of
  the court to  remove  the  attorney  for  the  child  from  his  or  her
  assignment.
  
  S 1017. Placement  of  children.  1.  In  any  proceeding under this
  article, when the court determines that a child must be removed from his
  or her home, pursuant to part two of this article, or  placed,  pursuant
  to  section  one  thousand  fifty-five  of this article, the court shall
  direct the local commissioner of social services to conduct an immediate
  investigation to locate any non-respondent parent of the child  and  any
  relatives  of  the child, including all of the child's grandparents, all
  suitable  relatives  identified  by  any  respondent   parent   or   any
  non-respondent  parent  and  any relative identified by a child over the
  age of five as a relative who plays or has played a significant positive
  role in his or her  life,  and  inform  them  of  the  pendency  of  the
  proceeding  and  of  the  opportunity for becoming foster parents or for
  seeking custody or care of the child, and that the child may be  adopted
  by foster parents if attempts at reunification with the birth parent are
  not  required  or  are  unsuccessful.  The  local commissioner of social
  services shall record the results of such investigation, including,  but
  not  limited  to,  the name, last known address, social security number,
  employer's address and any other identifying information to  the  extent
  known  regarding  any  non-respondent parent, in the uniform case record
  maintained pursuant  to  section  four  hundred  nine-f  of  the  social
  services  law.  For the purpose of this section, "non-respondent parent"
  shall include a person  entitled  to  notice  of  the  pendency  of  the
  proceeding and of the right to intervene as an interested party pursuant
  to  subdivision (d) of section one thousand thirty-five of this article,
  and a non-custodial parent entitled to notice and the right  to  enforce
  visitation  rights  pursuant  to subdivision (e) of section one thousand
  thirty-five of this article. The court shall determine:
    (a) whether there is a suitable non-respondent parent or other  person
  related to the child with whom such child may appropriately reside; and
    (b) in the case of a relative, whether such relative seeks approval as
  a  foster parent pursuant to the social services law for the purposes of
  providing care for such child,  or  wishes  to  provide  free  care  and
  custody for the child during the pendency of any orders pursuant to this
  article.
    2.  The  court  shall, upon receipt of the report of the investigation
  ordered pursuant to subdivision one of this section:
    (a) where the court determines  that  the  child  may  reside  with  a
  suitable  non-respondent  parent  or  other  relative  or other suitable
  person, either:
    (i) grant an order of custody or guardianship to  such  non-respondent
  parent,  other relative or other suitable person pursuant to section one
  thousand fifty-five-b of this article; or
    (ii) place the child directly in the custody  of  such  non-respondent
  parent, other relative or other suitable person pursuant to this article
  during  the  pendency  of  the  proceeding or until further order of the
  court,  whichever  is  earlier  and  conduct  such  other  and   further
  investigations as the court deems necessary; or
    (iii)  remand  or  place  the  child,  as  applicable,  with the local
  commissioner of social services and direct such commissioner to have the
  child reside with such relative or other  suitable  person  and  further
  direct  such  commissioner  pursuant  to  regulations  of  the office of
  children and family services, to commence an investigation of  the  home
  of  such  relative or other suitable person within twenty-four hours and
  thereafter approve such relative or other suitable person, if qualified,
  as a foster parent.  If  such  home  is  found  to  be  unqualified  for
  approval,  the  local  commissioner  shall report such fact to the court
  forthwith.
    (b) where the court determines that a suitable  non-respondent  parent
  or  other person related to the child cannot be located, remand or place
  the child with a suitable person, pursuant to subdivision (b) of section
  one thousand twenty-seven or subdivision (a)  of  section  one  thousand
  fifty-five  of this article, or remand or place the child in the custody
  of the local commissioner of social services pursuant to subdivision (b)
  of section one thousand twenty-seven or subdivision (a) of  section  one
  thousand  fifty-five  of  this  article. The court in its discretion may
  direct that such commissioner  have  the  child  reside  in  a  specific
  certified  foster home where the court determines that such placement is
  in furtherance of the child's best interests.
    3. An order placing a child with a relative or other  suitable  person
  pursuant to this section may not be granted unless the relative or other
  suitable person consents to the jurisdiction of the court. The court may
  place  the  person  with  whom  the child has been directly placed under
  supervision during the pendency  of  the  proceeding.  Such  supervision
  shall be provided by a child protective agency, social services official
  or duly authorized agency. The court also may issue a temporary order of
  protection  under  subdivision  (f)  of section one thousand twenty-two,
  section one thousand twenty-three or section one thousand twenty-nine of
  this  article.  An  order  of  supervision  issued  pursuant   to   this
  subdivision  shall  set forth the terms and conditions that the relative
  or suitable person must meet and the actions that the  child  protective
  agency,  social services official or duly authorized agency must take to
  exercise such supervision.
    4. Nothing in this  section  shall  be  deemed  to  limit,  impair  or
  restrict the ability of the court to remove a child from his or her home
  as  authorized  by law, or the right of a party to a hearing pursuant to
  section ten hundred twenty-eight of this article.
  
  S 1018. Conferencing and mediation.  In  any  proceeding initiated
  pursuant to this article, the court may, at  its  discretion,  authorize
  the  use of conferencing or mediation at any point in the proceedings to
  further a plan for the child that fosters the  child's  health,  safety,
  and  well-being.  Such  conferencing or mediation may involve interested
  relatives or other adults who are significant in the life of the child.
 
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