Family Court Act § 1021: Temporary Removal With Consent

If a child is suspected of being the victim of abuse or neglect, New York law gives certain designated people the authority to remove the child from the custody of his or her parents or the person who is legally responsible for the child. Unless there is an emergency situation, removal of the child must be with the consent of the child's parents or the person legally responsible for the child. Under New York Family Court Act § 1021 a police officer or representative of an authorized social services agency or organization may temporarily remove a child from his or her residence with the consent of the child's parents or the person who is legally responsible for the child, if there is reason to believe that the child is being abused or neglected. Upon removal the child's parents or person who is legally responsible for the care of the child must be given notice of how to go about requesting that the child be returned.

Halle has been having a tough time finding a job. She lives alone in a small 1-bedroom apartment with her 7-year-old daughter, Lindsay. Sarah barely has enough money to pay the rent and sometimes does not have enough money to give Lindsay enough food to eat. Lindsay sometimes appears at school to be tired and weak. Finally, Lindsay's teacher asked her if everything was OK at home. Lindsay responded that sometimes she did not have any food to eat. The teacher contacted social services agency. A representative of the agency along with the police visited Sarah and Lindsay's apartment. Sarah explained the situation. The representative of the agency asked for Sarah's consent to remove Lindsay and place her in foster care. Sarah refused. The police took away Lindsay anyway. The police did not follow the requirements of the statute. Under these circumstances they did not have authority to remove Lindsay from her custody of Sarah without Sarah's consent.

On the other hand, if under the same facts Sarah consented to Lindsay being removed from her custody because she did not have the ability to properly feed Lindsay, then the police would have had the authority to remove Lindsay from Sarah's custody under New York Family Court Act § 1021.

1. Preliminary orders of court before petition filed : New York Family Court Act § 1022
2. Preliminary orders; notice and appointment of counsel: New York Family Court Act § 1022-A
3. Emergency removal without court order: New York Family Court Act § 1024

If you consented to having your child temporarily removed from your custody under New York Family Court Act § 1021 because there was suspicion that your child was being abused or neglected, you have the right to seek the return of the child to your custody under New York Family Court Act § 1028. You would be required to request a hearing which by law would have to scheduled right away. At the hearing a Family Court judge will make a decision regarding the circumstances under which your child will be returned to your custody.

A peace officer, acting pursuant to his or her special duties, or a police officer or an agent of a duly authorized agency, association, society or institution may temporarily remove a child from the place where he or she is residing with the written consent of his or her parent or other person legally responsible for his or her care, if the child is suspected to be an abused or neglected child under this article. The officer or agent shall, coincident with consent or removal, give written notice to the parent or other person legally responsible for the child's care of the right to apply to the family court for the return of the child pursuant to § one thousand twenty-eight of this article, and of the right to be represented by counsel and the procedures for those who are indigent to obtain counsel in proceedings brought pursuant to this article. Such notice shall also include the name, title, organization, address and telephone number of the person removing the child; the name, address and telephone number of the authorized agency to which the child will be taken, if available; and the telephone number of the person to be contacted for visits with the child. A copy of the instrument whereby the parent or legally responsible person has given such consent to such removal shall be appended to the petition alleging abuse or neglect of the removed child and made a part of the permanent court record of the proceeding. A copy of such instrument and notice of the telephone number of the child protective agency to contact to ascertain the date, time and place of the filing of the petition and of the hearing that will be held pursuant to § one thousand twenty-seven of this article shall be given to the parent or legally responsible person. Unless the child is returned sooner, a petition shall be filed within three court days from the date of removal. In such a case, a hearing shall be held no later than the next court day after the petition is filed and findings shall be made as required pursuant to § one thousand twenty-seven of this article.

If your child has been removed from your custody the law allows you to petition the Family Court to have your child returned to you. In order to ensure that your rights are protected during this hearing 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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