Family Court Act § 1024: Emergency Removal Without a Court Order

If a child is abused by his or her parents or the person who is legally responsible for the child, New York law gives certain designated people the authority to remove the child from the custody of those suspected of abuse and to place the child into protective custody. Typically, before a child whose health and safety is at risk can be removed, the child's parents must consent or a court order must be issued by the Family Court. However, there are certain circumstances under which a child may be removed without a court order. Under New York Family Court Act § 1024 a police officer, law enforcement official, or employee of the Department of Social Services has the authority to place a child in protective custody without the consent of the child's parents or person who is legally responsible for the child and with a court order, if:

1. There is reason to believe that the child is in imminent danger from the parent or person who is legally responsible for the child, and
2. There is not enough time to apply for a preliminary order directing temporary removal under New York Family Court Act § 1022

If an authorized person removes a child on an emergency basis, the law requires that the person take the child to a place approved by the local social services department or allow the child to remain in a hospital if necessary, make a reasonable effort to inform the child's parents or person legally responsible for the child, and give that parents written notice of the right to apply to Family Court for the return of the child.

8--year-old Sarah fell off of a swing at school and injured her arm. Her teacher took her to the school nurse. When the school nurse pulled up Sarah's sleeve to examine her arm more closely, she noticed several marks and scars that appeared to be burn marks in various stages of healing. The nurse then removed Sarah's shirt and observed many marks, scars and bruises on her back and on her other arm. The nurse contacted the police. Upon viewing Sarah's arm and taking to Sarah, the police officer decided to place Sarah in protective custody. He called the Department of Social Services, who sent a representative to Sarah's school to pick her up. Sarah's parents were informed and were given written notice of their rights to seek to regain custody of Sarah. In placing Sarah in protective custody under these circumstances, the police officer followed the requirements of the emergency removal without court order statute as described in New York Family Court Act § 1024.

1. Temporary removal with consent: New York Family Court Act § 1021
2. Preliminary orders of court before petition filed : New York Family Court Act § 1022
3. Preliminary orders; notice and appointment of counsel: New York Family Court Act § 1022-A

If your child has been removed from your custody because a police officer, law enforcement official, representative from the department of social services, or a physician concluded that you represent a danger to the child, you can seek the return of the child to your custody under New York Family Court Act § 1028. Your hearing will be scheduled quickly. At the hearing the Department of Social Services will be required to prove the allegations against you. If you can show that the allegations are false or if the Department is unable to prove the allegations, the court will return the child to you.

If the court finds that the allegations are indeed true and that the child was abused, the court will determine how to proceed based on what is in the best interests of the child. In addition, if you are suspected of abusing your child, you may face criminal charges such as endangering the welfare of a child under New York Penal Law § 260.10.

1. A peace officer, acting pursuant to his or her special duties, police officer, or a law enforcement official, or a designated employee of a city or county department of social services shall take all necessary measures to protect a child's life or health including, when appropriate, taking or keeping a child in protective custody, and any physician shall notify the local department of social services or appropriate police authorities to take custody of any child such physician is treating, without an order under § one thousand twenty-two of this article and without the consent of the parent or other person legally responsible for the child's care, regardless of whether the parent or other person legally responsible for the child's care is absent, if (i) such person has reasonable cause to believe that the child is in such circumstance or condition that his or her continuing in said place of residence or in the care and custody of the parent or person legally responsible for the child's care presents an imminent danger to the child's life or health; and (ii) there is not time enough to apply for an order under § one thousand twenty-two of this article.
2. If a person authorized by this § removes or keeps custody of a child, he shall (i) bring the child immediately to a place approved for such purpose by the local social services department, unless the person is a physician treating the child and the child is or will be presently admitted to a hospital, and (ii) make every reasonable effort to inform the parent or other person legally responsible for the child's care of the facility to which he has brought the child, and (iii) give, coincident with removal, 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 act, and of the right to be represented by counsel in proceedings brought pursuant to this article and procedures for obtaining counsel, if indigent. 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, the telephone number of the person to be contacted for visits with the child, and the information required by § one thousand twenty-three of this act. Such notice shall be personally served upon the parent or other person at the residence of the child provided, that if such person is not present at the child's residence at the time of removal, a copy of the notice shall be affixed to the door of such residence and a copy shall be mailed to such person at his or her last known place of residence within twenty-four hours after the removal of the child. If the place of removal is not the child's residence, a copy of the notice shall be personally served upon the parent or person legally responsible for the child's care forthwith, or affixed to the door of the child's residence and mailed to the parent or other person legally responsible for the child's care at his or her last known place of residence within twenty-four hours after the removal. An affidavit of such service shall be filed with the clerk of the court within twenty-four hours of serving such notice exclusive of weekends and holidays pursuant to the provisions of this §. The form of the notice shall be prescribed by the chief administrator of the courts. Failure to file an affidavit of service as required by this subdivision shall not constitute grounds for return of the child. (iv) inform the court and make a report pursuant to title six of the social services law, as soon as possible.
3. Any person or institution acting in good faith in the removal or keeping of a child pursuant to this § shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed as a result of such removal or keeping.
4. Where the physician keeping a child in his custody pending action by the local department of social services or appropriate police authorities does so in his capacity as a member of the staff of a hospital or similar institution, he shall notify the person in charge of the institution, or his designated agent, who shall then become responsible for the further care of such child.
5. Any physician keeping a child in his custody pursuant to this § shall have the right to keep such child in his custody until such time as the custody of the child has been transferred to the appropriate police authorities or the social services official of the city or county in which the physician maintains his place of business. If the social services official receives custody of a child pursuant to the provisions of this §, he shall promptly inform the parent or other person responsible for such child's care and the family court of his action.

If your child has been removed from your custody without your consent and without a court order, 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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