State child protection agencies provide procedures and regulations for dealing with cases of child abuse or neglect. These agencies exist in every state in the United States. Any reports of abuse should be made to a state child protection agency. The agency will investigate the allegations and take the necessary steps to ensure the safety and welfare of the child.
The names of these types of agencies will vary by state. In some states, the agency is known as Child Protective Services (CPS). In other states, it may be known by other names, including:
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- Department of Child Services (DCS);
- Department of Human Services (DHS);
- Department of Children and Families (DCF); or
- Other names as chosen by the state.
Their function, regardless of their name, is essentially the same. A child protective services attorney can help with cases in which an individual is being investigated by CPS or a similar agency. An attorney will ensure the rights of the parents are protected during the investigation.
What is the History of Child Protective Services (CPS)?
Before the 20th century, child services agency functions were largely undertaken in the United States by local or charitable organizations. A Federal Children's Bureau was formed in 1912 to deal with child abuse cases. Concern regarding child abuse or neglect issues rose and by the 1960s, 49 states had enacted child abuse reporting laws.
The Child Abuse and Prevention Treatment Act of 1974 was passed and required abuse reporting. In response to this Act being passed, states began forming modern Child Protective Services (CPS) agencies.
What is a Child Protection Order, and What is Included in It?
A child protection order is a type of court order that is issued by a judge for the purposes of shielding a child from acts of child abuse or from exposure to domestic violence. It is most commonly used in situations where the child needs protection from an abusive parent or their siblings.
Each state has enacted its own separate laws for child protection orders. The varying state statutes will typically contain instructions on how to obtain a child protection order and what is included in the terms of a protection order. Oftentimes, the order will be based on the facts of a case.
Aside from protecting the child from abuse, the order may also contain information about visitation restrictions, property or document surrender, and the rules regarding contact with the child. For instance, the court may issue a no contact order against the father or mother of the child. This will require the abusive parent to maintain a specified distance from the child and prohibit the abuser from visiting the child at home or in school.
In extreme cases, the court may also require a parent under a no contact order to refrain from communicating with the child via phone calls, emails, social media, and/or other forms of communication.
Depending on the state where the no contact order is granted, these orders may be similar to your average restraining order, or the state may recognize it as a separate order. In cases where a state differentiates between the two orders, a no contact order will carry criminal penalties if violated.
How Long do Child Protection Orders Last?
There are three main factors that will determine how long a child protection order will last. These include the terms of the order, the length of time listed in its conditions, and what the state statute provides as standard expiration dates. Thus, child protection orders will vary according to state law and will depend on the facts of a case.
Some states, however, will limit protection orders to a 90-day time period, whereas others will set their statutes at three to five years. In general, the typical limitation for many child protection orders is one year, with the possibility of an extension.
Once an order is issued, the child protection order will then be enforced by the court until more evidence has been collected for the case. For instance, if there is evidence that the child is still being abused, the court will not lift the order. Instead, the court may place a permanent restraining order on the abusive party, which can have an infinite duration.
If the child is in immediate danger, however, a judge will sometimes issue an ex parte order. This type of order refers to one made without the offending party present at the hearing. They are most often granted when there is an immediate need for relief or protection, if the other party cannot be reached, or if there is an emergency situation. In such cases, an emergency protection order can be obtained in a short time when necessary.
One other important thing to keep in mind about child protection orders is that as with any case that involves a child, the legal principle that the court will use to make a decision on whether to grant or lift a child protection order is the child’s best interest standard.
How Do I File a Child Protection Order?
As discussed above, the process for obtaining a restraining order against the father or mother of a child will primarily depend on the laws of a particular state since each one has their own set of requirements.
Generally speaking, however, a party seeking a child protection or restraining order will usually need to prove a valid reason for obtaining one. In some states, this may require the party to report an incident of abuse to law enforcement or child protection services. Next, the petitioner will have to fill out a form petitioning an order. These forms vary by state and also by the type of order the party is seeking.
Once the form is completed, the party must file it in the appropriate court where a judge will review the request. From there, the judge will either grant or deny the request. If it is denied, the party will have a certain amount of time to request a hearing based on the denial. If it is granted, the order will be issued and a hearing will be scheduled usually within 30 days.
At the hearing, both parties will have a chance to argue their side of the matter (e.g., why or why not the order should be enforced). The judge will consider their arguments and decide whether to lift the order or issue a final protective order, which will last for a certain amount of time. The date the order expires will typically be written on the order itself.
What are the Legal Consequences for Violating a Child Protection Order?
The legal consequences for violating a child protection order will depend on the type of order it is, as well as the laws of the state in which it is issued. Violating a child protection order is a very serious matter that can result in both civil and criminal penalties.
If the child protection order carries criminal consequences, then the defendant can be charged with either a felony, misdemeanor, or as being in contempt of a court order. Regardless of which one the defendant is charged with, a conviction for any of the three can lead to a term of imprisonment and heavy fines.
For example, all felonies can be punished by a fine and a prison sentence for one year or longer. In cases involving a violation of a child protection order, a defendant may be charged and convicted of a felony if they are a repeat offender or have committed a severe violation. In these instances, some states will impose a fine of up to $1,000, and a mandatory prison sentence.
In addition, a person who has a child protection order issued against them may not even have to violate the order to experience legal consequences. For instance, federal law dictates that those who are subject to a child protection order will be prohibited from owning a firearm. Other penalties a person under a child protection order may face is loss of certain parental rights, including the right to custody and/or visitation.
What Types of Abuse should be Reported?
There are several types of abuse or neglect that must be reported to the state's child protection agency. These include:
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- Physical abuse, which is the non-accidental injury of a child by physical force, perpetrated their parent or other caretaker;
- Emotional abuse, which involves using criticism, rejection or other confidence-damaging tactics to harm a child;
- Sexual abuse, which involves enticing or coercing a child into sexual activity;
- Neglect, which involves ignoring or failing to fulfill a child's basic needs, which may include: food, shelter, medical care, education needs and emotional needs.
- Abandonment, which occurs when a child is left alone and the parent's whereabouts are unknown; and
- Substance abuse, which may include:
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- a who exposes a child to a substance they are abusing prenatally;
- manufacturing drugs in the child's presence; or
- abuse which prevents the parent from properly caring for the child.
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A CPS lawyer can assist with reporting any child abuse or neglect issues. A lawyer will be familiar with the reporting process and interacting with CPS.
Who is Required to Report Evidence of Child Abuse?
Any individual who is aware of a situation involving child abuse or neglect should report it to their local child protective agency. There are some individuals, however, who are required to report abuse or neglect based on their professions. In these cases, there may be a mandatory reporting requirement.
The following professionals are required to report abuse or neglect if they become aware of it:
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- Medical or hospital personnel;
- School officials;
- Social service workers;
- Residential care workers; or
- Law enforcement personnel.
What Are Some Legal Consequences of False Accusations of Child Abuse?
A false accusation of child abuse can be extremely damaging for all parties involved. False accusations of child abuse or false allegations of child abuse often occur when a party is wrongfully attempting to obtain custody of a child.
If an individual wrongfully accuses another of abuse, it may weaken the amount of trust in an already strained relationship. In addition, false accusations of abuse may also lead to legal consequences for the party making false claims.
Common types of false accusations include false accusations of spousal abuse and false accusations of child abuse.
A false accusation of child abuse may be particularly damaging to the child's psyche. For example, if a parent accuses the other parent of child abuse, the effects of exposure to such harmful threats may have lasting consequences for the child. The child may be required to undergo intensive physical or medical examinations to determine if the charges are true.
If a party is caught making false accusations of abuse in connection with court proceedings, there will be serious legal consequences. Consequences may include perjury charges, as it is illegal to knowingly make false statements while under oath during court proceedings.
Perjury is a criminal charge that may be punishable by a jail sentence or criminal fines. In addition, perjury may include making a false statement during a deposition outside of court or making a false written representation in a court document. In some jurisdictions, the crime of perjury includes making false statements in any legal setting, not just during a trial.
False allegations of abuse may come in other forms, including:
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- Filing a false police report;
- Making false statements to a police officer or other law enforcement authority; or
- Obstruction of justice.
These violations may result in severe legal consequences, which will vary depending on state and local laws.
Intentionally causing another individual to commit perjury is subornation of perjury and is also a criminal offense. For example, forcing a witness to lie on the stand, or forcing a child to testify in court in support of a false claim may result in subornation charges.
Do I Need an Attorney Experienced with State Child Protection Issues?
It is extremely important to hire an experienced family lawyer for any state child protection issues. If you are experiencing issues regarding a report of child abuse or neglect, the first step you take should be to hire an attorney.
An attorney will advise you of your rights, assist you in having your child returned to your custody, if possible, and represent you during any court proceedings, if necessary.
Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.
