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Court Decides if Removal of a Child is Necessary in a Domestic Violence Case


Three different women were physically abused by their intimate partners or husbands. These three different women all had children who were then living with them at the time that the domestic violence against the women occurred.

These three different women all asked the help of the police and the family court to stop the domestic violence. In all the three cases, the family court issued orders of protection.
In the same family court where these cases for domestic violence were pending, the Administration for Child Services (ACS) all intervened. ACS had a standing policy that all children were removed from the mothers who were victims of domestic violence because even as victims, they are also deemed to have engaged in domestic violence. The ACS contends that the battered woman is negligent when she allowed her children to witness the domestic violence committed against her. The ACS put all the children of these battered women in foster care.

A New York Criminal Lawyer said the mothers all objected to the removal of their children from their homes and the placing of their children under foster care. They appealed to the District Court which issued a preliminary injunction prohibiting the City of New York from penalizing a mother with the removal of her children simply because she was battered by her partner.

The three mothers sought the return of their children on the ground that as victims of the domestic violence, they should not be punished with the forcible removal of their children who are already traumatized by the domestic violence they witnessed. The removal of their children is actually a punishment on the children themselves. They also claimed that the emergency removal of their children from their custody by the ACS without a court order violated their Constitutional right to due process.

The ACS appealed this injunction issued by the District Court of New York to the Court of Appeals of the State of New York on the ground of grave abuse of discretion. The Court of Appeals of the State of New York certified these three consolidated cases upon three questions to the US Federal Supreme Court.

The first question is: can a child be considered neglected simply because the parent or caretaker of the child allowed the child to witness domestic abuse against the parent or caretaker?

On this first certified question, the Federal Supreme Court opined that if the question were answered in the affirmative, it would mean that a finding of neglect is based only on evidence of the fact that a parent has been the victim of domestic violence and the child or children have been exposed to the domestic violence. A Manhattan Criminal Lawyer said the Court ruled that these two facts are insufficient to presume neglect. There must be proof of actual or imminent danger of physical, emotional or mental impairment to the child. There must also be proof that the parent or caretaker of the child failed to exercise a minimum degree of care not to expose the child to the domestic violence. The final test should still be the best interest of the child.

The second certified question was: can witnessing domestic violence be considered as an imminent danger or risk to a child’s life or health such that emergency removal of the child with or without a court order is appropriate? Again the Supreme Court of the United States ruled that exposing a child to domestic violence cannot be presumed as neglectful. Not all children who witness domestic violence is at risk of impairment. Exposure of the child to domestic violence by itself is not an automatic ground for removal. The family courts are given the tough job of balancing the impairment of the child if allowed to witness domestic violence and the impairment of the child if he is removed from his home.

The third certified question was: does proof that a child witnessed domestic violence demonstrate that removal of the child is necessary? The Supreme Court ruled that each case of domestic violence is unique in that each case has specific facts. The Court ruled that the policy of the ACS of automatically removing children from their battered parent operates upon a blanket presumption. The Court opined that there must be a factual determination and evidence must be presented of the need for removal of the child and the impact of the removal of the child.

Domestic violence in the home affects not only the battered person but also the children he or she may have. In almost all cases of domestic violence the ACS may insist upon the removal of the children from the home. If you are a victim of domestic violence, assault or sex crimes, you need a New York Domestic Violence Lawyer to show that the exposure of your child to domestic violence does not put your child in imminent danger of being impaired. A skilled attorney can help you prove that removing your child from your custody may further impair your children. At Stephen Bilkis and Associates, their legal team are willing to argue that your child’s best interest is to remain with you. .Call Stephen Bilkis and Associates today and protect the best interest of your child

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