N.Y. Family Court Act § 1034: Power to order investigations

§ 1034. Power to order investigations. 1. A family court judge may

order the child protective service of the appropriate social services

district to conduct a child protective investigation as described by the

social services law and report its findings to the court:

(a) in any proceedings under this article, or

(b) in order to determine whether a proceeding under this article

should be initiated.

2. (a)(i) Before a petition is filed and where there is reasonable

cause to suspect that a child or children's life or health may be in

danger, child protective services may seek a court order based upon:

(A) a report of suspected abuse or maltreatment under title six of

article six of the social services law as well as any additional

information that a child protective investigator has learned in the

investigation; and

(B) the fact that the investigator has been unable to locate the child

named in the report or any other children in the household or has been

denied access to the child or children in the household sufficient to

determine their safety; and

(C) the fact that the investigator has advised the parent or other

persons legally responsible for the child or children that, when denied

sufficient access to the child or other children in the household, the

child protective investigator may consider seeking an immediate court

order to gain access to the child or children without further notice to

the parent or other persons legally responsible.

(ii) Where a court order has been requested pursuant to this paragraph

the court may issue an order under this section requiring that the

parent or other persons legally responsible for the child or children

produce the child or children at a particular location which may include

a child advocacy center, or to a particular person for an interview of

the child or children, and for observation of the condition of the

child, outside of the presence of the parent or other person

responsible.

(b)(i) Before a petition is filed and where there is probable cause to

believe that an abused or neglected child may be found on the premises,

child protective services may seek a court order based upon:

(A) a report of suspected abuse or maltreatment under title six of

article six of the social services law as well as any additional

information that a child protective investigator has learned in the

investigation; and

(B) the fact that the investigator has been denied access to the home

of the child or children in order to evaluate the home environment; and

(C) the fact that the investigator has advised the parent or other

person legally responsible for the child or children that, when denied

access to the home environment, the child protective investigator may

consider seeking an immediate court order to gain access to the home

environment without further notice to the parent or other person legally

responsible.

(ii) Where a court order has been requested pursuant to this paragraph

the court may issue an order under this section authorizing the person

conducting the child protective investigation to enter the home in order

to determine whether such child or children are present and/or to

conduct a home visit and evaluate the home environment of the child or

children.

(c) The procedure for granting an order pursuant to this subdivision

shall be the same as for a search warrant under article six hundred

ninety of the criminal procedure law. If an order is issued in

accordance with this subdivision the court shall specify which action

may be taken and by whom in the order.

(d) In determining if such orders shall be made, the court shall

consider all relevant information, including but not limited to:

(i) the nature and seriousness of the allegations made in the report;

(ii) the age and vulnerability of the child or children;

(iii) the potential harm to the child or children if a full

investigation is not completed;

(iv) the relationship of the source of the report to the family,

including the source's ability to observe that which has been alleged;

and

(v) the child protective or criminal history, if any, of the family

and any other relevant information that the investigation has already

obtained.

(e) The court shall assess which actions are necessary in light of the

child or children's safety, provided, however, that such actions shall

be the least intrusive to the family.

(f) The court shall be available at all hours to hear such requests by

the social services district which shall be permitted to make such

requests either in writing or orally, pursuant to section 690.36 of the

criminal procedure law, in person to the family court during hours that

the court is open and orally by telephone or in person, pursuant to

section 690.36 of the criminal procedure law, to a family court judge

when the court is not open. While the request is being made, law

enforcement shall remain where the child or children are or are believed

to be present if the child protective services investigator has

requested law enforcement assistance. Provided, however, that law

enforcement may not enter the premises where the child or children are

believed to be present without a search warrant or another

constitutional basis for such entry.

(g) Where the court issues an order under this section, the child

protective investigator shall within three business days prepare a

report to the court detailing his or her findings and any other actions

that have been taken pertaining to the child named in the report and any

other children in the household.

(h) Nothing in this section shall limit the court's authority to issue

any appropriate order in accordance with the provisions of this article

after a petition has been filed.