Can My Child Be Taken from Me Without a Court Order?

There is probably no greater pain for a parent than if their child is taken away from them. Being investigated for abuse or neglect is a gut punch for moms and dads who love their children.

No court order is needed to remove a child from their home if Child Protective Services think they are in imminent danger. In all other circumstances, a court order is required.

If your child has been taken or you are under investigation for child abuse or neglect, you continue to have rights. At Jason M. Barbara & Associates, P.C. we can ensure due process is followed. We also effectively communicate your side of the story to investigators.

When Are Children Removed from a Home?

Child Protective Services (CPS) can take a child out of a home at any time they think the child is in danger. Article 10 of the Family Court Act Chapter 686 gives protective agencies and the police the authority to take such action.

Child Protective Services investigates allegations that fall in one (or more) of the following categories:

  • Physical Abuse: Examples include intentionally hitting, kicking, or burning a child.
  • Neglect: This occurs when a parent doesn’t provide for the child’s basic needs despite having the income or assistance to do so.
  • Sexual Abuse: This abuse includes when a parent touches a child for sexual gratification or takes photographs or videos of sexual performance.
  • Emotional Abuse: The parent’s behavior harms the child’s mental well-being causing the child to not function normally.

The stated purpose of Article 10 is 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.”

This purpose works great in theory, but the application is often problematic. Parents are sometimes falsely accused (a class A misdemeanor), or situations misconstrued. CPS must investigate every substantial report.

Fortunately, parents can take action to come out from under the weight of suspicion and bring their children home.

The Right to Place the Child with a Relative

Whenever possible, the child should not be placed in the system and cared for by a stranger. Child services must conduct an immediate investigation to locate a non-respondent (not being investigated) parent, grandparents, or another relative. After ensuring an alternate placement is safe, your child can stay with relatives.

The Right to a 1028 Hearing

In many cases, the parent under investigation can move to have the child released to their care pending the final outcome of the case. The hearing which takes place to consider this motion is known as a "1028." The hearing is typically held within three days of the child’s removal from the home.

The Right to Say No

Unless the CPS investigator has a court order, you do not have to let them into your home; you do not have to submit to a drug/alcohol test; you do not have to let them interview a child; and you do not have to sign a HIPAA medical release.

The Right to Understand the Allegations

You will not be told who made the report, but you do have the right to know exactly what is alleged. In addition to a copy of the petition, you can receive the names of the caseworker and the child’s attorney (one is assigned upon the filing of a neglect/abuse petition).

The Right to Regular Visits

If your child is temporarily placed in an alternate home, you can have reasonable and regularly scheduled visits, unless prohibited by the court.

The Right to an Attorney

The parent is entitled to seek the advice of an attorney and to have an attorney present when the parent is questioned by a child protective representative.

The Right to a Fair Hearing

If the CPS investigation determines that the case is indicated (the caseworker found credible evidence that abuse occurred), the next step is to request a Fair Hearing where your attorney fights to get the CPS ruling overturned.

If the judge determines there is not enough evidence of neglect or abuse, they may dismiss the case and return the child to their parent. Having an experienced legal mind at this hearing is imperative. If the judge determines that there is enough evidence, a dispositional hearing is scheduled to decide what happens to the child. Termination of parental rights is possible.

The Right to Appeal

The Fair Hearing is not necessarily the final say. The judge’s ruling can be appealed to the New York State Supreme Court within four months of the date of the decision.

If you're involved in a CPS investigation, having experienced legal counsel advocating for you is critical. Schedule a consultation with our team about your case, call (516) 406-8381.