There is nothing more fundamental that being able to raise your child as you see fit.  One should conceivably be able to raise their child according to his or her own values, beliefs and ideals, without the overreaching and intrusive interference of the state.  However, if states were to leave this role up to the parents or legal guardians entirely, there would be no voice to protect the rights of the children, putting their physical and emotional well-being in jeopardy.  Each state has taken on the role of safe keeper of children, once the number of parents abusing their right to parent has skyrocketed, which ultimately resulted in an immeasurable number of fatalities.  In New York, Article Ten of the Family Court Act was enacted in 1969, as a result of the public outcry over the death of a young girl.  And although this statute was promulgated to protect children from abuse and neglect, it was the passing of the Child Protective Services Act of 1973 that directly addressed the reporting and investigating of child abuse and neglect cases in New York.  Under the Act, a Child Protective Service (“CPS”) office was established in each county, to encourage more complete reporting of child abuse cases, to investigate and prevent abuse and to provide rehabilitative services to parents, caregivers and children that were involved in such cases.  Allegations of child abuse and neglect cases provided to the State Central Registry by “mandated reporters”, which include medical providers, mental health professionals, law enforcement, daycare providers/workers, teachers and district attorneys, are investigated by the agency as they are reported.

            Although examples of child abuse are pretty obvious , i.e. sexually abusing, physically abusing, or allowing another to abuse the child in this way, child neglect cases can be a lot less identifiable.  For this reason, child neglect cases are more frequently investigated by CPS and brought before the court than child abuse cases, even though both may result in misdemeanor, felony and/or domestic violence criminal cases being brought in addition to the Family Court case.  Child neglect is when a parent or person legally responsible for the child, fails to care for the child and causes physically, mentally or emotionally to the child as a result or when the child is in danger of such harm because of the parent’s failure to care for him/her.   A parent, or person legally responsible, may be charged with neglect for failure to feed a child properly, failure to enroll or send a child to school, failure to seek medical treatment for a child, leaving a child home alone or with another child not old enough to watch the child, amongst many other.  There are many times when a parent, who happens to be faced with other life challenges, may unintentionally fail to act or to do something that is necessary to the child’s well-being.  Many of these situations should not necessarily rise to the level of an child neglect case but they do.  For instance, one of the most litigated child neglect case is when a parent uses corporal punishment to punish the child.  The laws in New York do not prohibit the use of corporal punishment; it prohibits the use of “excessive” corporal punishment or “unreasonable” physical force.  The New York Family Court Act and the Penal Law both address the extent to which parents’ may inflict physical harm on children.  The applicable provisions read as follows:

Neglecting a child includes unreasonably inflicting or allowing the infliction of harm or substantial risk thereof,  including excessive corporal punishment. (Fam. Ct. Act Sec. 1012).

Parent/guardian/other person with care and supervision of person under 21, can use non-deadly physical force when and to the extent he reasonably believes necessary to maintain discipline or promote welfare of person force performed upon. (Penal Law Sec. 35:10).

The difficulty for most parents comes into play when trying to discern what is “excessive” and/or what is “unreasonable” according to the law.  For example, in some instances the use of a belt to discipline a child is considered excessive and/or unreasonable, while in others the courts will dismiss a child neglect charge under such circumstances.  There is little uniformity in the definition of “excessive corporal punishment” or “unreasonable physical force” when it comes to the courts.  This is mainly attributed to the fact that bureaucratic and judicial decision-making are largely subjective in Family Court, leaving the consistency and fairness of the implementation of the child abuse and neglect laws up to the agencies.  Nonetheless, the key to determining if the line has been crossed, is first limiting the use of or refraining from the use of physical or corporal punishment altogether.  However, in instances where it is necessary to “maintain discipline or promote the child’s welfare”, some physical discipline may be justified from all perspectives.    

In other circumstances, however, where the child neglect case arose out of a parent’s failure to act, avoiding CPS’ involvement may be impossible.  Even when harm to the child was unforeseeable, not knowing that one should have done something may lend itself to agency involvement.  In a medical neglect case, for instance, where a parent fails to take a child to the doctor to be treated for an ear infection, his or her legitimate belief that an ear infection may eventually heal itself does not prevent CPS from opening an investigation against that parent.  This may not be fair considering the fact that some parents are much more experienced and savvy when dealing with less serious ailments, than the new parent, for instance.  Furthermore, in this day and age where many households are single parent, one wage-earner units, the practicality of acting in every instance is almost non-existent. 

Unfortunately, there is no surefire way to avoid CPS’ involvement in any scenario.  It’s almost as if choosing to become a parent automatically opens one up to the susceptibility of state intrusion to some degree.  A parent’s best bet is to know what not to do, than what not knowing what to do!  Communicating openly with physicians, school administrators, social service workers, etc. may not necessarily avoid agency intervention, but doing so may better prepare one to explain or defend his or her actions if questioned by the players involved.  

If you need to discuss your child abuse or neglect case, please contact my office for a consultation.