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LEGAL ISSUES: Protective Custody

To protect a child or adolescent's life and health, it may be necessary to take protective custody. The primary consideration is the immediacy of danger to the child/adolescent. The test for taking protective custody is whether there is reasonable cause to believe that the circumstances or conditions are such that continuing in his or her place of residence or in the care and custody of the parent, guardian, custodian, or other person responsible for the child/adolescent's care presents an imminent danger.

As a private physician you do not have the authority to take protective custody of children whom you are treating. You are required (Social Services Law ~ 417) to notify the appropriate police authorities or Child Protective Services that you believe there is reasonable cause for the need to take protective custody. CPS or the police will evaluate the child's circumstances or conditions to determine what appropriate action(s) should be taken.

If a child/adolescent suspected of being abused or maltreated is living at home and is brought to a hospital, the hospital-based medical provider who believes a child/adolescent would be in imminent danger if returned to the care and custody of the parent or guardian can have the child/adolescent placed in protective custody at that hospital. If you are on staff of a hospital, notify the hospital administrator that you believe the child/adolescent is in imminent danger. The hospital administrator then becomes responsible for retaining custody of the abused or maltreated child/adolescent until the next regular weekday session of family court.

If the hospital administrator takes the child/adolescent into protective custody, he or she must immediately notify the local Child Protective Service. CPS must then immediately begin an investigation and a child protection proceeding must be started that day, whether or not additional medical treatment is required during that period and whether or not a parent or guardian has requested the child/adolescent's return during that period.

The local Child Protective Services caseworker and the hospital must reach an agreement regarding the immediate needs of the child. This includes decisions about placement, transportation to the placement, and other issues. If the CPS worker and hospital personnel cannot reach agreement regarding the immediate needs of the child/adolescent, the supervisory staff of the local CPS office should be contacted. If problems cannot be worked out at that level, the appropriate next step is to contact the New York State Department of Social Services regional office for the county.

If the child/adolescent does not need hospital care, CPS should make arrangements for the immediate transfer of the child/adolescent to a community-based facility, respite care, or foster care. CPS must take all necessary measures to protect the child/adolescent's life and health, including taking custody of the child/adolescent. CPS must begin a child protective proceeding in family court at the next regular weekday session of the appropriate family court, or recommend to the court at that time that the child/adolescent be returned to his/her parents or guardian. A peace officer acting pursuant to his/her special duties, a police officer, a law enforcement official, an agent of a duly incorporated society for the prevention of cruelty to children, or a designated employee of a city or county Department of Social Services is also authorized to take protective custody of a child.

If the child/adolescent requires medical care, Social Services Law ~ 383-b provides that the local Commissioner of Social Services or the local Commissioner of Health may give effective consent for medical, dental, health, and hospital services for any child/adolescent who has been found by the family court to be abused or neglected, or who has been taken in or kept in protective custody or removed from the place where he/she is residing, or who has been placed in the custody of the commissioner.

Whenever a hospital decides to retain a child/adolescent in protective custody, it is essential to inform the child/adolescent's parent or caretaker and to immediately make an oral report to the State Central Register explicitly stating that the hospital is taking protective custody and the reasons for the action.

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Legal Issues: Overview  Legal Issues: Consent by Mature or Emancipated Minors  Legal Issues: Protective Custody  Legal Issues: Medical Records  Legal Issues: Confidential and Privileged Communication  Legal Issues: Subpoenas  Legal Issues: Judicial System  Legal Issues: Testifying as a Fact Witness   Legal Issues: Testifying as an Expert  Legal Issues: Testifying in Court  Legal Issues: Additional Resources 

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