Family Court Act Article 10, Child Protective Services Part 2, § 1023: Procedure for Issuance of Temporary Order

If law enforcement or a social services organization has reason to believe that a child has been abused or neglected, New York's Family Court Act 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 care of the child. The law allows this to be done in 3 different ways depending on the circumstances of the case. The authorized person can get consent from the child's parents or from whoever is legally responsible for the care of the child; the authorized person may get a court order; or in emergency situations, the authorized person may remove the child without consent of the parent and without a court order. If an authorized person seeks a court order, there are certain procedures which must be followed. Under New York Family Court Act, Article 10, Child Protective Services, Part 2 § 1023, procedure of issuance of temporary order, the person or entity seeking the temporary order to remove the child from his or her residence must make a reasonable effort to inform the child's parent or parents, or the person legally responsible for the care of the child of the following:

1. The intent to apply for an order to temporarily remove the child.
2. The date and time that the application will be made.
3. The address of the court where the application will be made.
4. The right of the parent or person responsible for the child's care to be present in court.
5. The right of the parent or person responsible for the child's care to be represented by counsel.

4-year-old Cindy was playing in a playground with several other kids. She fell off of a slide and seriously injured her arm. Her mother, Diane, took her to the emergency room. When the doctor examined Cindy, he noticed other injuries that were not consistent with a fall from a slide. When the doctor questioned Diane about the injuries and Cindy's medical history, Diane was evasive and gave inconsistent information. The doctor called a social services organization. The representative from the organization spoke to Diane and asked Diane to temporarily give up custody of Cindy in order to make sure Cindy was safe. Diane refused. The representative from the social services agency decided to seek an order to remove Cindy from her residence. Under these circumstances the court would likely issue a preliminary order before a petition is filed as permitted by the Family Court Act. However, the representative of the social services organization requesting the order must give notice to Cindy's mother.

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

If your child has been removed from your custody without your consent based on a court order because the police, a social service organization, or the court believes that your child has been abused or neglected, you have the right to seek the return of the child to your custody under Family Court Act Article 10, Child Protective Services, Part 2, § 1028. You would be required to request a hearing. At the hearing a Family Court judge will make a decision regarding the circumstances under which you child will be returned to your custody.

Any person who may originate a proceeding under this article may apply for, or the court on its own motion may issue, an order of temporary removal under § one thousand twenty-two or one thousand twenty-seven or an order for the provision of services or assistance, including emergency medical or surgical procedures pursuant to subdivision (c) of § one thousand twenty-two, or a temporary order of protection pursuant to § ten hundred twenty-nine. The applicant or, where designated by the court, any other appropriate person, shall make every reasonable effort, with due regard for any necessity for immediate protective action, to inform the parent or other person legally responsible for the child's care of the intent to apply for the order, of the date and the time that the application will be made, the address of the court where the application will be made, of the right of the parent or other person legally responsible for the child's care to be present at the application and at any hearing held thereon and, of the right to be represented by counsel, including procedures for obtaining counsel, if indigent.

If your child has been removed from your custody without your consent the law allows you to petition the Family Court to have your child returned to you. In order for a temporary ordered to be issued, the law requires that certain procedures are followed. 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:

• Bronx
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• New York City
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