Family Court Act Article 10, Child Protective Services Part 2, § 1028-A: Application of a Relative to Become a Foster Parent

If the authorities suspect that children are being abused or neglected, they have the legal power 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. In the meantime, a relative may be named as the foster parent to the child. Under New York Family Court Act, Article 10, Child Protective Services, Part 2, § 1028-A, application of a relative to become a foster parent, a hearing will be held for a relative to become a foster parent if:

1. The relative is related within the third degree of consanguinity of either parent,
2. The child has been previously placed with the person,
3. The relative is willing to be the foster parent,
4. Socials services has refused to place the child with the relative for reasons other than failure to qualify as a foster parent, and
5. The application is brought within 6 months of when the relative received notice that the child was being removed from his or her home.

Third degree of consanguinity refers to:

1. Great-grandparent
2. Aunt or uncle
3. Niece
4. Nephew
5. Great-grandchild
6. Grandparent-in-Law
7. Brother or sister-in-Law
8. Grandchild-in-Law

Ultimately the court will make a determination as to whether to place the child with the relative based on what is in the best interests of the child.

Kira and Henry are the parents of three children under the age of 10. Social services applied for and received a court order to remove all three children, alleging that both parents inflicted excessive corporal punishment against the children, causing numerous marks and bruises on the children. Brenda's grandmother requested that the children be placed with her. Brenda's grandmother will receive a hearing to become the children's foster parent as long as the other 4 requirements of the statute are met.

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

If your child has been removed from your custody because the authorities suspect that he or she has been abused your child will be placed in the temporary custody of another person such as a relative. However, this does not mean that the relative will have custody of your child permanently. You have the 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 the court must hold a hearing to review your application within just a few days of when you submit your application. 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.

1. Upon the application of a relative to become a foster parent of a child in foster care, the court shall, subject to the provisions of this subdivision, hold a hearing to determine whether the child should be placed with a relative in foster care. Such hearing shall only be held if: (i) the relative is related within the third degree of consanguinity to either parent; (ii) the child has been temporarily removed under this part, or placed pursuant to § one thousand fifty-five of this article, and placed in non-relative foster care; (iii) the relative indicates a willingness to become the foster parent for such child and has not refused previously to be considered as a foster parent or custodian of the child, provided, however, that an inability to provide immediate care for the child due to a lack of resources or inadequate housing, educational or other arrangements necessary to care appropriately for the child shall not constitute a previous refusal; (iv) the local social services district has refused to place the child with the relative for reasons other than the relative's failure to qualify as a foster parent pursuant to the regulations of the office of children and family services; and (v) the application is brought within six months from the date the relative received notice that the child was being removed or had been removed from his or her home and no later than twelve months from the date that the child was removed.
2. The court shall give due consideration to such application and shall make the determination as to whether the child should be placed in foster care with the relative based on the best interests of the child.
3. After such hearing, if the court determines that placement in foster care with the relative is in the best interests of the child, the court shall direct the local commissioner of social services, pursuant to regulations of the office of children and family services, to commence an investigation of the home of the relative within twenty-four hours and thereafter expedite approval or certification of such relative, if qualified, as a foster parent. No child, however, shall be placed with a relative prior to final approval or certification of such relative as a foster parent.

If your child has been removed from your custody based on a suspicion of abuse, your child will likely be placed in foster care. The foster parent may be a relative if there is a relative approved by the court. However, just because that relative is appointed to care for your children temporarily does not mean that you cannot regain custody. The law allows you to file a petition to have your child returned to you. You will be granted a hearing during which the court will review your case and determine under what circumstances your child can be returned to you. 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: