Unfortunately, child abuse and neglect occur far too often. Children are often the smallest victims in adult disagreements and divorce, but sometimes they are simply there and too small to protect themselves. It comes in many forms and some cases are heard in civil court while others are heard in criminal court.

There’s a lot to consider when dealing with a child abuse or neglect case. Having solid legal representation is a must. This primer will help to answer some of the most common questions asked about child abuse in New York.

What is the Federal Definition of Child abuse?

The Federal law for child abuse and neglect, The Child Abuse Prevention and Treatment Act (CAPTA), provides the minimum standards and requires that the states incorporate it into their own state statutory definitions.

The definition that CAPTA provides for the minimum standard of child abuse and neglect and states that abuse or neglect occurs when a parent or caretaker performs an act (recently) or fails to act and that results in serious physical harm, death, serious emotional harm, exploitation, or sexual abuse, or it places the child in imminent risk of serious harm.

The CAPTA also defines sexual abuse as the coercion, enticement, inducement, persuasion, use, or employment of any child to engage in or help another individual engage in, any conduct that is sexually explicit or simulates any activity that is intended to produce a visual depiction of sexual conduct. The definition also includes rape, incest with children, sexual exploitation of children including prostitution, molestation, and statutory rape.

What is the New York Definition of Child Abuse?

While the CAPTA provides a minimum standard for state laws regarding child abuse and neglect, it leaves many aspects such as the legal definition of a child, to the discretion of the states. Section 31 of the Social Services Law of New York State defines a child as an individual who is younger than 18 or who is unemancipated.

New York’s Family Court Act, Section 1012. (e) defines child abuse as a child whose parent or individual who is legally responsible for their care commits any of these acts:

  • Intentionally inflicts physical injury upon the child or attempts to inflict physical injury on them.
  • Intentionally creates a substantial risk of physical harm or injury – or allows it to be created – that would cause death, serious or protracted disfigurement, or protracted impairment of physical or emotional health, or protracted loss or impairment of the function of any bodily organ.
  • Commits a sex offense against a child or allows it to be committed.
  • Commits incest or other actions to harm.

What is the New York Definition of Child Neglect?

The New York Social Services Law calls child neglect “maltreatment” while the New York Family Court Act calls it “neglect.” However, the definitions are very similar.

Maltreatment and neglect are defined in these laws as a child who experiences physical, emotional, or mental impairment or faces imminent danger of impairment at the hands of their parent, parents, or legal guardian due to their failure to provide a minimum degree of care for that child. This can include:

  • Failing to provide the child with basic needs such as food, shelter, clothing, education, dental, medical, surgical, and optometric care even though they are financially able to do it.
  • In the course of providing guardianship or supervision for the child, they inflict unreasonable harm or substantial risk of hard – or allow it to be inflicted on them.
  • Misusing or abusing alcohol or drugs to the extent that they no longer have control over their own actions.
  • Performing other acts that are serious and harmful to the child to the point that the aid of the court is required.
  • Abandoning the child.

Who are Mandated Reporters for Child Abuse in New York?

Under New York law certain professionals are legally required to act as mandated reporters for any instance of suspected child abuse. There are potentially criminal and civil consequences for mandated reporters who willfully fail to report incidents of abuse. When they have a reasonable suspicion that child abuse or neglect is occurring, they are required to report it.

The professionals who are mandated reporters in New York include:

  • Social services workers
  • Teachers
  • Mental health professionals
  • Emergency medical technicians
  • School officials
  • Law enforcement personnel
  • Family therapists
  • District attorneys or assistant district attorneys
  • Family or group family daycare providers
  • Licensed family and marriage therapists
  • Representative of various religious organizations
  • Residential care workers and volunteers

What is the Burden of Proof in New York for Child Abuse or Neglect?

When a child is suspected of being abused or neglected, the agency (CPS or ACS) that conducted the investigation and is alleging and prosecuting the abuse is required to provide a preponderance of evidence in a civil matter and in a criminal case show that the defendant is guilty beyond a reasonable doubt. 

If the agency’s investigation indicates abuse or neglect, it will file a neglect or abuse petition and present its case in court. This is done at the fact-finding hearing and the case is heard by a judge. If it is found that the child has been abused or neglected, the court may decide to remove the child from the home.

How Long Does CPS Have to Investigate in New York?

When someone files a report with Child Protective Services (CPS), alleging child abuse or neglect, the agency conducts an investigation to determine if the allegations are true and if action needs to be taken to protect the child.

CPS must complete its investigation within 60 days of the date the report was made.

What Can’t CPS Do in New York?

While New York law gives CPS certain rights like investigating all reports, even false ones, connecting families with valuable resources, requiring parents to follow a service or safety plan, removing children from homes, terminating parental rights, and even talking with your child without you being present and without your consent, it does have some limitations. There are certain things that CPS cannot do.

  • CPS cannot enter your home through force, they must have a court order, or they must believe that the child is in imminent danger.
  • CPS cannot force a parent or caregiver to take a drug test without their consent. Again, they must have a court order.

These are two significant things that the agency cannot do, so if you are ever in a situation where you are being faced with either of these things, ask for a court order.

Can You Call CPS Anonymously in New York?

In the state of New York, any person who is concerned about the well-being and safety of a child or who suspects child abuse or neglect can make an anonymous report. Unless the child is in immediate danger, in which case they should call 911 to report it, the person would call 311 in New York City or 1-800-342-3720 which is the New York State Central Register. They will be asked to provide certain information, including:

  • The name of the child and any family members
  • The child’s address
  • The child’s age, gender, and primary language
  • The extent and nature of the child’s injuries, physical or mental
  • The type of neglect or abuse that the child is experiencing
  • Any history of neglect or abuse of the child

What Happens if a CPS Case is Founded in New York?

When a child abuse or neglect case against a person is “founded,” it means that the investigating agency collected evidence that shows the report to be true. Once this happens, the person that the agency filed against and has been investigating will receive a letter informing them that a report is “indicated” against them.

It means that the agency conducted its investigation and has reason to believe that it gathered enough credible evidence to suggest that neglect or abuse toward the child did occur. That person then has 90 days to challenge the findings and clear their name. In cases like this, a good attorney is a must.

Is Emotional Abuse of a Child a Crime in New York?

Emotional abuse is a form of domestic violence and is considered a crime in New York. It often is not as easy to prove as physical abuse or neglect, but this is one of the very reasons that it is so damaging. The abuse victim does not have the “evidence” of bruises or injuries that can be seen. Instead, their injuries are internal and will likely affect them for the rest of their lives in their relationships, work, and more. 

All abuse has an emotional component, but abuse that is strictly emotional or mental is especially vicious.

How Long Does Child Abuse and Neglect Stay on Your Record in New York?

When a person admits to abusing or neglecting a child or when they are found guilty, there are certain things that can occur. The child may be removed from the home for up to a year. If the parent fails to take an active part in the child’s life such as visitation and planning for the future, their parental rights could be terminated.

Furthermore, the report of child neglect or abuse remains on file with the New York state registry until the child turns 28 years old.

What are the Penalties for Child Neglect in New York?

Depending on the type and scope of the abuse or neglect, a person can spend up to 25 years in prison. They could be required to seek counseling, anger management classes, and parenting classes. They could also have their parental rights terminated.

What is the Statute of Limitations for Child Abuse and Neglect in New York?

New York has a controversial statute of limitations for cases of child abuse. However, if a child experiences abuse or neglect, they may not be able to seek justice and hold their abuser accountable in a timely manner. This can prevent them from taking the action against their abuser that they should be able to take.

A law passed on February 14, 2019, gives child abuse victims the ability to file criminal charges against their abuser until the victim is 28 years old and 55 years old for civil actions.

Child abuse and neglect are very serious. You need an aggressive, knowledgeable attorney to ensure that justice is served and your rights as well as the rights of your child are protected.

You need the Litvak Law Firm. Call 718-989-2908 today and make an appointment to talk with a member of our legal team who will review your case and work with you to determine your next steps. 

Many of these types of cases are very complex. It is not a good idea to try and go it alone. Get the representation you need and the justice you deserve.