Relates to preventing the unnecessary removal of children from a custodial parent who is the victim of domestic violence

BILL NUMBER:S3140

Title of bill

An act to amend the family court act and the social services law, in relation to preventing the unnecessary removal of children from a custodial parent who is the victim of domestic violence without further evidence of neglect by such parent

Purpose or general idea of bill

To amend the Family Court Act to prevent the unnecessary removal and placement of children into foster care when the custodial parent or the legal guardian is a victim of domestic violence, and there is no evidence of neglect by the battered custodian.

Summary of specific provisions

Sections 1-3 amend the Family Court Act by adding an identical paragraph to section 1022, section 1024 and section 1028. The amendment establishes a rebuttable presumption that a parent or person legally responsible for a child is a fit parent or custodian able to safely raise his/her child. The amendment clarifies that an allegation made to the court, or a finding made by the court, that the child's custodial parent or the person legally responsible for the child is a victim of domestic violence shall be insufficient evidence for the court to determine that the child is at imminent risk of harm, and should therefore be removed from his or her battered parent or custodian.

Sections 4 and 5 amend section 371 of the social services law and section 1012 of the family court act respectively, The amendment expands the definition of a neglected child to exclude a child of a custodial parent or a person legally responsible for the child who is the victim of domestic violence unless it is established by the court that, among other things, the child both experienced and was harmed by the domestic violence.

Justification

To prevent further trauma to a child whose custodial parent is a victim of domestic violence, this bill establishes a presumption of fitness on the part of the battered custodial parent to prevent the unnecessary removal of the child from the battered parent.

In a federal district court case, NICHOLSON V. WILLIAMS, 2002 U.S. Dist, LEXUS 4820 (E.D.N.Y. Mar.11, 2002), Judge Weinstein concluded that the policies and practices of the Administration for Children's Services ("ACS") substantially infringed upon the constitutional rights of battered women and their children, ACS practice denies these mothers due process, it violates their fundamental liberty interest in family integrity, and it infringes on a mother's liberty interest in raising her children.

Many child psychologists agree that the removal of children from their abused mothers actually harms children, who according to the NICHOLSON decision, "are particularly sensitive to being separated from the non-abusive parent." Often these children blame themselves for their placement into foster care. By establishing a presumption in favor of the battered parent, this legislation seeks to prevent routine and unnecessary removals of children from their custodial parent. As Judge

Weinstein stated in NICHOLSON, "It desecrates fundamental precepts of justice to blame a crime on a victim."

Fiscal implications

There should be a cost savings to local social services districts since this bill would reduce the number of unnecessary placements of children in foster care, and instead increase the provision of less costly, more cost-effective preventive services for victims of domestic violence.

Effective date

This bill would become effective immediately.