A single report to the State Central Register can put a New York City parent in three places at once: an Administration for Children's Services investigation, an Article 10 case in Family Court, and a criminal case in Criminal Court or Supreme Court. Each runs on its own clock and its own standard of proof. What you say to a caseworker on the first day can be read back to you in all three. This page explains, with the statutes cited, what happens in each track in the five boroughs, how the tracks affect one another, and the deadlines you need to know. The Law Offices of Albert Goodwin represents parents and caretakers in all three.
ACS is at my door. Do I have to let them in?
No, not without your consent, a court order, or an emergency. An ACS caseworker is a government employee, and the Fourth Amendment applies to a caseworker's entry into your home the same way it applies to a police officer's. The Second Circuit said so in Southerland v. City of New York, 680 F.3d 127 (2d Cir. 2012). You may decline entry. You may ask the caseworker to come back at a time when your lawyer can be present.
Refusing has consequences you should weigh before you shut the door. If you will not allow ACS to see your child, ACS can petition Family Court under Family Court Act § 1034(2) for an order directing you to produce the child or to permit entry into the home. If the caseworker believes the child is in imminent danger, ACS can remove the child without any court order under Family Court Act § 1024 and Social Services Law § 417, usually with NYPD officers present. A parent who refuses all contact is often described in the ACS file as uncooperative, and that word follows the family into court.
Our usual advice is a middle course. Do not let a caseworker interview your child alone in your home before you have spoken to a lawyer, but do not create a standoff either. Take the caseworker's name and the ACS borough office. Ask what the allegations are; Social Services Law § 424 requires ACS to tell you the general nature of the report. Call a lawyer that day. Offer a time, within a day or two, when the caseworker can see the child and speak with you with counsel present. In most cases ACS will accept that.
Do I have to answer the caseworker's questions?
You do not have to make a statement to ACS, and nothing requires you to answer police questions. An ACS caseworker is not a police officer, so the caseworker does not have to read you Miranda warnings. That cuts against you: a statement to a caseworker is generally admissible in Criminal Court through the caseworker's testimony, and ACS routinely shares its file with the NYPD Child Abuse Squad and the District Attorney. For allegations of serious physical injury or sexual abuse, the city uses Instant Response Teams in which ACS, the NYPD and the District Attorney respond together, and children are interviewed on video at the child advocacy center in the borough.
Silence has a cost in Family Court. In Matter of Commissioner of Social Services v. Philip De G., 59 N.Y.2d 137 (1983), the Court of Appeals held that a Family Court judge may draw a negative inference when a parent declines to testify in an Article 10 case. So the decision about whether to speak, and what to say, has to be made with both courts in mind. We make that decision with you before you say anything on the record. In many cases the right approach is a short written statement through counsel rather than an open-ended interview.
What ACS has to do and how long it has
Social Services Law § 424 governs the investigation. The main steps are these.
- Report to the SCR: A call to the Statewide Central Register of Child Abuse and Maltreatment is screened and, if accepted, transmitted to the ACS borough office for the family's address. Most accepted reports come from mandated reporters listed in Social Services Law § 413, including teachers, physicians, nurses, social workers and hospital staff.
- Contact within 24 hours: ACS must begin its investigation within 24 hours of the report. In practice a caseworker appears at the home or the child's school, often the same day.
- Interviews and home assessment: The caseworker interviews the child, each parent, other adults in the household, and collateral sources such as the school and the pediatrician. The caseworker looks at sleeping arrangements, food, and the condition of the apartment.
- Safety plan: ACS frequently asks a parent to sign a safety plan, for example that the accused parent move out or that the children stay with a grandparent. A safety plan is voluntary and has no court oversight. You can decline it or ask to limit it. Declining may push ACS to file in court, so the choice should be made with counsel, but you should know that a signed plan can become the status quo for months.
- Determination within 60 days: ACS must decide within 60 days whether the report is indicated or unfounded. Since January 1, 2022, a report may be indicated only if a fair preponderance of the evidence supports it. Some lower-risk reports in New York City are routed to Family Assessment Response under Social Services Law § 427-a, which ends with no indicated or unfounded determination.
The 60-day determination and the Family Court case are separate. ACS can file an Article 10 petition on day one, long before the investigation closes, and ACS can also indicate a report without ever filing in court.
Can I have a criminal case and an Article 10 case at the same time?
Yes, and in New York City you often will. The same bruise reported by a school nurse can produce an arrest for endangering the welfare of a child under Penal Law § 260.10, a class A misdemeanor punishable by up to 364 days in jail, and an Article 10 neglect petition filed by ACS the next morning. More serious injuries bring assault charges under Penal Law §§ 120.00 or 120.05, and sexual allegations bring charges under Penal Law Article 130, which are felonies prosecuted in Supreme Court after indictment.
The two tracks apply different rules to the same conduct. Penal Law § 35.10(1) allows a parent to use physical force, short of deadly force, when reasonably necessary to maintain discipline. Family Court Act § 1012(f)(i)(B) defines neglect to include excessive corporal punishment. Conduct that is a defense in Criminal Court can still be neglect in Family Court.
| Proceeding | Who brings it | Standard of proof | Court in NYC |
|---|---|---|---|
| Criminal charge | District Attorney | Beyond a reasonable doubt | Criminal Court (misdemeanors); Supreme Court (indicted felonies) |
| Article 10 abuse or neglect | ACS, through its Family Court Legal Services attorneys | Preponderance of the evidence, FCA § 1046(b)(i) | Family Court in the borough where the child lives |
| Indicated SCR report | ACS, reviewed by OCFS on appeal | Fair preponderance, SSL § 422(8) | Administrative review, then OCFS fair hearing |
| Termination of parental rights | ACS or the foster care agency | Clear and convincing evidence, SSL § 384-b; Santosky v. Kramer, 455 U.S. 745 (1982) | Family Court |
Because the standards differ, an acquittal or dismissal in Criminal Court does not end the Family Court case. A finding of neglect can rest on evidence a jury rejected. The reverse also matters: Family Court judges often adjourn the fact-finding hearing while a criminal case is open, because a parent who testifies in Family Court gives the District Attorney a transcript. We handle both cases together so that sequencing works in your favor rather than the prosecutor's.
Three practical points on the criminal side. First, after an arrest you should be arraigned without unnecessary delay, which in New York City generally means within 24 hours. Second, under the current bail statute many misdemeanor endangering charges are not bail-eligible, so a parent is usually released at arraignment. Third, the Criminal Court judge will almost always issue a temporary order of protection under Criminal Procedure Law § 530.12. If it is a full stay-away order naming your child, you are out of your own home that night, and that order has to be addressed in Criminal Court even if Family Court later allows contact.
What happens if ACS removes my child
There are three routes to removal before a finding is made.
- Emergency removal without a court order: Family Court Act § 1024 allows ACS or a police officer to remove a child when the child is in imminent danger to life or health and there is not enough time to go to court. ACS must then file a petition forthwith, and under § 1027 the court must hold a hearing no later than the next court day after the petition is filed.
- Pre-petition court order: Under § 1022, ACS can go to a judge before filing a petition and obtain an order removing the child, with a hearing to follow.
- Removal at the first appearance: ACS files the petition and asks the judge to remand the child at the initial appearance under § 1027.
Removal does not have to mean foster care with strangers. Section 1017 requires the court to direct ACS to locate relatives and non-relative resources, and a parent can propose a grandparent, aunt or godparent on the first court date. Bring names, addresses and phone numbers to court. The court can also order the alleged abuser out of the home under § 1027 rather than removing the child, and a temporary order of protection under § 1029 can accomplish the same thing.
How fast must a 1028 hearing be held, and what does the judge decide?
A parent whose child has been removed may apply under Family Court Act § 1028 for the child's return. The court must hold the hearing within three court days of the application and may not adjourn it beyond that without the parent's consent. The judge must return the child unless the judge finds that return would present an imminent risk to the child's life or health. Under § 1028(b) the judge must also consider whether that risk can be reduced by reasonable efforts, such as an order of protection, supervision by ACS, or services in the home. The Court of Appeals in Nicholson v. Scoppetta, 3 N.Y.3d 357 (2004), held that the harm a removal itself does to a child has to be weighed against the risk of return, and that a child's exposure to domestic violence between the parents is not, by itself, neglect.
One trap: the right to a § 1028 hearing may be lost if you already had a full § 1027 hearing at which you were present with counsel and had the chance to be heard. Do not consent to a quick remand at the first appearance to "get the case moving." We ask for the § 1028 hearing in writing at the first appearance and use the three days to gather the school records, medical records and witnesses the judge will want to see.
The Article 10 case in the five New York City Family Courts
Article 10 cases are heard in the Family Court of the borough where the child lives: New York County at 60 Lafayette Street, Kings County at 330 Jay Street, Bronx County at 900 Sheridan Avenue, Queens County at 151-20 Jamaica Avenue, and Richmond County at 100 Richmond Terrace. The petitioner is ACS, represented by its own lawyers from Family Court Legal Services. The parent is called the respondent. The child has a separate lawyer, the Attorney for the Child, appointed under Family Court Act § 249, usually from the Legal Aid Society's Juvenile Rights Practice. The Attorney for the Child takes a position in court and can be an ally or an adversary depending on what the child wants and what the lawyer believes.
A respondent who cannot afford a lawyer has a right to assigned counsel under Family Court Act § 262(a)(i). In New York City that is usually one of the institutional parent-defense offices, such as the Bronx Defenders, Brooklyn Defender Services, the Center for Family Representation or Neighborhood Defender Service of Harlem, or a private attorney from the County Law Article 18-B panel. A parent who hires private counsel can choose a lawyer who will also handle the criminal case, which the institutional family defenders generally do not.
The case moves in roughly this order.
- Petition and initial appearance: The judge decides on remand or release, orders of protection and visitation, and sets a schedule.
- Discovery: Under § 1038 the respondent is entitled to the ACS case record, progress notes, and medical and school records ACS relies on. We read every progress note. Caseworker notes frequently contradict the petition.
- Fact-finding hearing: ACS must prove abuse or neglect by a preponderance of the evidence. Section 1046 sets the evidence rules that decide most of these cases. A child's out-of-court statements are admissible under § 1046(a)(vi), but if uncorroborated they cannot support a finding on their own. Under § 1046(a)(ii), an injury of a kind that would not ordinarily happen without a parent's act or omission is prima facie evidence of abuse or neglect, which shifts the burden to the parent to explain it. Under § 1046(a)(iii), repeated drug or alcohol misuse is prima facie neglect unless the parent is voluntarily in treatment.
- Disposition: If a finding is made, the options under §§ 1052 through 1057 include a suspended judgment, release to the parent under ACS supervision for up to a year, placement in foster care, and an order of protection. Before any finding, ACS may agree to an adjournment in contemplation of dismissal under § 1039 for up to one year, after which the petition is dismissed if the conditions are met. An ACD avoids a finding but does not, by itself, change an indicated SCR report.
- Permanency hearings: If the child stays in foster care, Article 10-A requires permanency hearings, the first within about eight months of removal and then every six months.
Timelines vary by borough and by the criminal case. A contested fact-finding with no parallel criminal case commonly takes several months from filing. With an open felony, it can take well over a year.
What does an indicated report mean, and how do I get it amended?
An indicated report is ACS's own conclusion, not a court finding. It is recorded in the Statewide Central Register under Social Services Law § 422. Under § 422(6) the record stays in the SCR until ten years after the eighteenth birthday of the youngest child named in it, in other words until that child turns 28. During that time it appears on clearance checks under § 424-a for jobs in child care, foster and adoptive parent applications, and many positions in schools and health care. Since January 1, 2022, indicated reports that involve neglect rather than abuse are no longer disclosed on those clearance checks after eight years from the date of the report, but the report remains in the register.
You have the right to challenge it, and the deadline is short. Under § 422(8), you must request that the report be amended within 90 days of the notice telling you it was indicated. The SCR then has 90 days to review. If it declines to amend, you are entitled to a fair hearing before an administrative law judge of the Office of Children and Family Services. At the hearing ACS must prove by a fair preponderance of the evidence that you committed the act described. If it does, the judge also decides whether the act is relevant and reasonably related to child care employment; a report that is upheld but found not relevant is not disclosed to employers. If the judge finds the evidence insufficient, the report is amended to unfounded and sealed.
The fair hearing interacts with Family Court. If an Article 10 petition on the same facts is pending, the fair hearing is held after the Family Court case ends, and a Family Court finding of abuse or neglect is treated as conclusive, so the report cannot be amended. That is one more reason the Article 10 case matters even when the child has already come home.
Unfounded reports are sealed under § 422(5). They can still be unsealed and used by ACS if a new report is made about the same family within ten years, which is why we ask ACS to confirm the determination in writing.
False and exaggerated allegations
A share of the reports ACS receives in New York City come out of custody fights. A parent in a contested custody case in Supreme Court or Family Court calls the SCR, or coaches a child to make a statement to a teacher, and the other parent is suddenly a respondent in an Article 10 case. Family Court Act § 1046(a)(vi) requires corroboration of a child's out-of-court statement, and the timing of the report relative to the custody case is admissible on the question of motive. In these cases we obtain the custody file, the text messages between the parents, and the school and pediatric records that show whether the child's account matches anything that happened before the custody dispute started.
Medical disagreements are a second category. A diagnosis of abusive head trauma or a fracture attributed to non-accidental injury triggers § 1046(a)(ii) and shifts the burden to the parent. The response is a medical one: a pediatric radiologist, a hematologist or a biomechanical expert who can offer another explanation for the finding. We retain those experts early, because the § 1028 hearing is often the first time a judge hears competing medical views.
Termination of parental rights
Termination is governed by Social Services Law § 384-b. The grounds are permanent neglect, abandonment, mental illness or intellectual disability that prevents the parent from caring for the child, and severe or repeated abuse. The standard is clear and convincing evidence. Under § 384-b(3)(l), once a child has been in foster care for 15 of the most recent 22 months, the agency is generally required to file a termination petition unless the child is with a relative, there is a compelling reason not to file, or the agency has not provided the services it was ordered to provide. The 15-month clock is the reason a § 1028 hearing and the service plan at disposition deserve more attention than the fact-finding gets in many cases. A parent who complies with the service plan and keeps every visit builds the record that defeats a permanent neglect petition later.
How these cases tend to unfold
The scenarios below are composites of the patterns we see in the five boroughs. They are not descriptions of any client's case and they do not predict results.
- School report of a mark on a child: A teacher sees a bruise and calls the SCR. ACS visits the home the same afternoon. An Instant Response Team may be involved if the injury is significant. The parent may be arrested for endangering the welfare of a child and arraigned with a temporary order of protection. ACS files an Article 10 neglect petition alleging excessive corporal punishment. The issues become whether the Penal Law § 35.10 discipline defense applies in Criminal Court, whether the conduct was excessive under FCA § 1012(f)(i)(B), and whether the criminal order of protection can be modified so the parent can return home.
- Infant with an unexplained fracture: A hospital child abuse pediatrician reports a fracture as non-accidental. ACS removes the child under § 1024. The § 1027 hearing is the next court day and the § 1028 hearing within three court days of the request. The case turns on § 1046(a)(ii), the medical history, and whether a relative can take the child under § 1017 while the medical dispute is litigated.
- Indicated report with no court case: ACS investigates, files nothing in court, but indicates the report for inadequate guardianship. The parent learns about it when a child care employer runs a § 424-a clearance. The 90-day amendment window may already be running from the date on the SCR notice, so the first step is to locate that notice and file the request.
What we do on a child abuse or ACS case
Our office handles the ACS investigation, the Article 10 case and the criminal case as a single matter. On the investigation side, we attend ACS interviews, control what is put in writing, and negotiate the terms of any safety plan. In Family Court we file the § 1028 application at the first appearance, demand the case record under § 1038, propose kinship resources, and try the fact-finding when ACS cannot prove its petition. In Criminal Court we address the order of protection at arraignment, review the Child Advocacy Center video and the ACS file for inconsistencies, and sequence the two cases so that your testimony in one does not supply evidence in the other. After the court cases end, we pursue amendment of the SCR report through the OCFS fair hearing process.
If ACS has contacted you, bring these items to the first meeting: any paper the caseworker left, the names of everyone who has interviewed your child, your child's school and pediatric records for the past year, and any texts or messages with the person you believe made the report. If you have been arrested, bring the criminal court complaint and the order of protection.
Call 212-233-1233 or email [email protected]. We meet with parents in all five boroughs and can appear at any of the city's Family Courts and Criminal Courts.
About the author
This page was written by Albert Goodwin, an attorney admitted to practice in New York and the principal of the Law Offices of Albert Goodwin in New York City. The firm represents parents and caretakers in ACS investigations, Family Court Article 10 proceedings and related criminal matters. Read more about Albert Goodwin. Spanish-speaking clients can read our pages on criminal defense in New York and family law in New York.
The statutes cited on this page are the New York Family Court Act, Social Services Law, Penal Law and Criminal Procedure Law as in effect at the time of writing. They change, and a court applies them to facts. Nothing here is legal advice for your situation; speak with a lawyer about the specifics of your case.
