Family Court Act Article 10, Child Protective Services Part 2, § 1028: Application to Return Child Temporarily Removed

If the law enforcement or a social service agency suspects that children are being abused or neglected, the law allows them to remove the children from the home. The purpose of removing a child under such circumstances is to ensure that the child is safe. However, the ultimate goal is to reunite the child with his or her parent or the person who is responsible for that child's care, as long as it is in the best interests of the child to do so.

Under New York Family Court Act, Article 10, Child Protective Services, Part 2, § 1028, application to return child temporarily removed, if your child has been removed from your home, the first step in your attempt to regain custody of your child is to file an application with the Family Court. The court is required to hold the hearing within just a few days after the application is made. At the hearing the court is required to grant the application and return the child to the child's parent or person legally responsible for the care of the child unless doing so would put the child at risk.

Example

Reba is a single mom of 5-year-old, Brenda. Reba is also a hoarder. The house she shares with Brenda is so full that it is difficult to move around in the home. Brenda barely has enough space in her bedroom to sleep and there is no room for to play inside the house. The conditions of the kitchen and bathroom was so bad that they presented health hazards Because of the conditions of the home, Brenda was removed from Reba's residence. Reba was distraught after Brenda was taken from her and vowed to get her back. Brenda immediately filed an application to have Brenda returned to her under Family Court Act Article 10, Child Protective Services Part 2, § 1028. A hearing was set for 2 days later. Since the authorities had cause to remove Brenda as her well-being was in jeopardy, the court is not likely to immediately grant Reba's application. However, the court will advise Reba as to what she must do in order to retain custody of Brenda.

Related Statutory Provisions

1. Temporary removal with consent: New York Family Court Act, Article 10, Child Protective Services, Part 2, § 1021
2. Preliminary orders of court before petition filed: New York Family Court Act, Article 10, Child Protective Services, Part 2, 1022
3. Emergency removal without court order: New York Family Court Act, Article 10, Child Protective Services, Part 2, § 1024
4. Hearing and preliminary orders after filing petition: New York Family Court Act, Article 10, Child Protective Services, Part 2, § 1027

Remedy

If your child has been removed from your custody because the authorities suspect that he or she has been abused, you have to right to apply to the court for the return of your child. The court is required to act swiftly on your application. This means that within just a few court days of when you submitted your application, the court must hold a hearing. At that hearing the court must grant your petition and return your child to you unless if by doing so your child will be in imminent danger.

Family Court Act Article 10, Child Protective Services, Part 2, § 1028: Application to return child temporarily removed

1. 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 law guardian 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 § ten hundred twenty-seven of this article on the removal of the child at which the parent or other person legally responsible 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 §, the court shall advise such person at that time that, notwithstanding such waiver, an application under this § may be made at any time during the pendency of the proceedings.
2. 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.
3. 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.
4. 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 pursuant to § one thousand fifteen-a or as enumerated in subdivision (c) of § one thousand twenty-two of this article, notwithstanding the fact that a petition has been filed.
5. The court may issue a temporary order of protection pursuant to § ten hundred twenty-nine of this article as an alternative to or in conjunction with any other order or disposition authorized under this §.
6. 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, pursuant to § ten hundred twenty-nine of this article, directing the removal of a person or persons from the child's residence.

New York Application to Return Child Temporarily Removed Lawyer

If your child has been removed from your custody based on a suspicion of abuse, you have the right to apply to have your child returned to you. Unless the authorities are able to show that if your child is returned to you he or she is likely to be harmed, the court will order that your child be returned to you. You are permitted to be represented by counsel at the hearing. In order to ensure that your rights are protected during this process it is important that you are represented by someone who has experience. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully representing clients in New York Family Court who are involved in disputes related to child custody. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those involved in Family Court matters in the following locations:

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