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WHAT IS FOSTER CARE?
A child in “foster care” is a child who has been placed in the care and custody of ACS and/or a foster care agency for either short-term or long-term care. Placement may be with a “foster family,” the child’s relatives, or a group home. A relative who is a foster parent is often called a “kinship” foster parent. Foster families receive foster care funds (child support from ACS) to help care for the child. ACS and/or the foster care agency have custody of the child, but the parent continues to have legal rights to make some decisions about the child’s welfare.
HOW DOES A CHILD ENTER FOSTER CARE?
There are a number of ways a child may be placed into foster care:
1) A parent or legal guardian may ask to have the child placed in foster care – called a voluntary placement.
2) The court may order the child be placed in foster care, as part of a PINS or child protective case.
3) A child-protective agency like ACS may also remove children from their homes in emergencies if the agency determines that the children are in danger. See Paragraph C in the Child Protective Proceeding section, above.
WHAT IS A CHILD PROTECTIVE PROCEEDING?
When it appears that a child under 18 years old has been abused or neglected (harmed or not taken care of) or is in danger of being abused or neglected, a child protective agency may file a petition asking the Family Court to assist in protecting the child. In New York City, this agency is the Administration for Children’s Services (ACS). ACS is the petitioner, and the parent or caretaker is the respondent. It is the court’s responsibility to decide whether the allegations of abuse or neglect are true and, if so, what action the court should take to protect the child.
Upon the filing of an abuse or neglect case, ACS may request that a child be placed away from the home for his or her protection or it may request that the child remain in the home under certain conditions.
DO THE PARTIES NEED LAWYERS TO REPRESENT THEM?
Although respondents have the right to represent themselves, a respondent should obtain a lawyer. Respondents may hire lawyers to represent them in court or ask the court to assign lawyers at no cost if they cannot afford to hire their own. Each respondent must have a separate lawyer.
WHAT IS AN ADOPTION?
When a child’s parents have died, when the parents cannot continue to provide for their child’s care or custody, or when the court terminates (ends) the parents’ right to continue having responsibility for the care and custody of their child, the child may be adopted. In an adoption, the birth parents’ rights are ended and the court gives permanent legal responsibility for the child to other persons—people who then become the child’s legal parents. Children 14 years of age or older may not be adopted without their consent.
Adoptive parents can be any of the following people: (1) an adult unmarried person; (2) a married couple; (3) two unmarried adult intimate partners; (4) an adult married person who is separated from his or her spouse under a decree or judgment of separation or a written and notarized separation agreement; or (5) an adult married person who has been living apart from his or her spouse for at least three years before the adoption case is filed.
The parties are given an appointment for DNA tests at a laboratory. The petitioner or respondent will have to pay for the testing, unless the court finds that the party cannot afford it. If so, DSS will pay for the test. The laboratory will send the results directly to the court.
When the parties return to court, the court will explain the test results. DNA test results are expressed in percentages. For example, the DNA test might show that the man is 98% likely to be the biological father. If, after learning about the DNA results, the parties agree on paternity, the court may enter an order of filiation. If the parties still do not agree on paternity, the matter is adjourned for a hearing. At the hearing, both parties may testify and present witnesses, and the blood or DNA test results may be offered in evidence. The petitioner usually has the burden of proving paternity by clear and convincing evidence. If the DNA test results are 95% likelihood of paternity or higher, the burden shifts to the respondent to prove he is not the child’s father. If the petitioner presents sufficient proof, the court will enter an order of filiation. If not, the petition will be dismissed.
WHAT IS AN ORDER OF CUSTODY?
An order of custody gives responsibility for the child’s care, control, and maintenance to one or both of the child’s parents or to another party. The court may not decide issues of custody and visitation if the child is 18 years or older.
WHO MAY FILE A PETITION FOR AN ORDER OF CUSTODY?
A person who has an interest in a child’s well-being and has some connection or relationship with the child may file a petition in the Family Court requesting that the court place the child in his or her custody. The petition should be filed in the county in which the child resides, so long as the child as been residing in the state for the past six (6) months. A copy of the petition and a summons must be delivered personally to (served on) the person or parties who have custody of the child. If the child’s parents are separated and one parent seeks a custody order, that parent must have the papers served on the other parent. If a non-parent is seeking custody of the child, then both the child’s parents must be served.