Runaway and homeless youth providers frequently confront questions relating to their clients' legal rights and responsibilities. Such questions include clarification on issues of confidentiality, consent for medical treatment, parents' rights (as they relate to their children residing in certified runaway and homeless youth programs), warrants, court orders, legal issues regarding school and transportation, and the broad concept of emancipation.
We have seen repeated instances in which young people are unable to access public benefits, do not receive needed medical services, and have their confidentiality violated. Such situations generally tend to occur because staff are unfamiliar with or have questions regarding the laws protecting a youth's rights.
In response to the above challenges, the Empire State Coalition of Youth & Family Services has developed an informational booklet which specifically addresses the legal rights and responsibilities of runaway and homeless youth. We have compiled some of the most frequently asked questions and organized responses by subject in a reader-friendly manner. This booklet is designed to provide definitive information in response to the legal issues programs confront most often. Nonetheless, it should not be used as a substitute for legal counsel, when such counsel is warranted. (At the end of this booklet, we have included is a listing of organizations where you can speak with a lawyer.) Laws change, and even laws that have been on the books for a while are subject to new interpretations.
By making this information readily available to programs, our aim is to provide staff with a resource to help them become better informed of the relevant legal issues involving the youth they serve; thereby enabling programs to better serve youth who seek their assistance.
The term emancipation applies to youth over the age of 16 and under 18 who are:
(1) living separate and apart from their parents;
(2) not receiving any financial support from them (except by court order or benefits to which they are entitled, i.e. Social Security);
(3) living beyond the parent's custody and control; and,
(4) not in foster care.
Emancipation involves the renunciation of the legal obligations of a parent and the surrender of parental rights over the child. It may occur when a parent is unwilling or unable to meet his/her obligations to one's child or when a child refuses to comply with the reasonable rules of a parent and leaves home.
In New York State, there is no Emancipation Statute or court proceeding in which an Order of Emancipation can be obtained. In New York, the status of a youth as an Emancipated Minor depends on the facts. Whether an Emancipated Minor has the same rights as an adult depends upon the relevant law.
Emancipation does not give a minor adult status in all areas.
- An Emancipated Minor is not allowed to vote;
- An Emancipated Minor is still required to obtain parental consent to get working papers and is limited in the kindsof jobs he/she can perform;
- An Emancipated Minor cannot bring a lawsuit and must have an adult commence any litigation on his/her behalf;
- An Emancipated Minor cannot buy, sell or control real estate;
- Age and consent requirements to marry apply regardless of emancipation;
- An Emancipated Minor cannot join the military;
- An Emancipated Minor is subject to statutory rape laws and age requirements governing consent;
- An Emancipated Minor cannot get a learner's permit or driver's license without parental consent;
- An Emancipated Minor cannot rent a campsite;
- Parental consent is required to obtain routine health care. As in any case involving a minor, an emancipated minorcan obtain health care without parental consent when it involves an emergency, a sexually transmitted disease, family planning services, alcohol and mental health treatment, or if the minor is pregnant, a parent, or married.
Although there is no court proceeding in New York to have a young person declared an Emancipated Minor, New York Law recognizes the status of emancipation and the rights of emancipated minors. To determine whether a young person is emancipated, the following factors are critical:
- The youth must be living apart from his/her parents;
- The youth must be self supporting (may be receiving public benefits or child support if required by court order);
- The youth is not in need/receipt of foster care;
- The youth is living beyond the custody and control of the parent;
- The youth is over the age of 16.
If a young person can establish his/her emancipation through the test above, then the young person would have the following rights:
- The right to retain one's own wages;
- The right to sue for parental support if the parent forced the youth to leave home;
- The right to establish his/her own legal residence and attend school where he/she resides;
- If needy, eligibility for certain public benefits (depending on the circumstances of the young person's emancipation);
Keep in mind, that depending upon the reason the young person left home, his/her parents may not be obligated to provide support (food, clothing, shelter) to the young person.
An Emancipated Minor has the same rights as any other minor to enter into a contractual agreement. As a general rule, if a minor signs a lease for an apartment, the minor cannot be held to the lease, but the landlord can. In other words, a minor can "disavow" the contract. This is why many landlords are reluctant to rent to minors.
Any young person residing at a certified runaway/homeless youth program (shelter or host home) may choose to continue to attend his/her own school as long as the shelter coordinator agrees and signs the State Education Designation Form to that effect. A homeless youth, even if not residing in a certified shelter, has the same rights and can choose whether to attend the school where he/she is located or the school he/she previously attended as long as the school is within 50 miles of the student's current location. The certified program is responsible for arranging transportation for the young people in their care who elect to return to their district of origin. Homeless youth on their own are entitled to receive transportation from whichever school district they choose to attend (either the district of origin or district of current location).
(a) In the case of certified runaway/homeless youth programs, the program is responsible for arranging transportation and the State Education Department must reimburse the program for the cost of transportation if the young person opts to attend his/her home school district and the shelter is located outside the boundaries of the child's district of origin. If the youth chooses to attend school in the same district as the certified program, the local school district is directly responsible for transportation. In the event the Legislature does not appropriate adequate funds for the transportation of runaway/homeless youth housed in a certified shelter, the school district of origin would be responsible for transportation if the young person chooses to continue to attend school in that district.
(b) Host Homes, also known as Voluntary Foster Homes (VIFS) are certified residential programs and the same rules apply.
With the exception of New York City, a youth may drop out of school at the end of the school year in which he/she turns 16. In New York City, a youth can drop out at the end of the school year in which he/she turns 17. In New York State, the school year runs from July 1 to June 30. Therefore, a student who turns 16 on July 1 must remain in school until the end of the next school year, while a student who turns 16 on June 30 may drop out at any time thereafter.
All youth between the ages of 5 and 21 are entitled to a free public education. Even if a young person has a GED, but wishes to go back to school to get a high school diploma, he/she must be allowed to re-enroll and work toward a high school diploma until the age of 21.
A public school cannot simply deny a young person the right to a public education without following the proper procedures. A student may be suspended from school for insubordination, disorderly conduct, or conduct that endangers the safety, welfare or morals of self or others. If the student is under 16 (or 17 in New York City), the district is required to arrange immediately for alternative instruction, or if the student is disabled or suspected of having a disability, the district must continue to provide the student a free appropriate public education. In the case of a suspension for less than 5 days, the student and his/her parents are entitled to written notice of the right to request an informal conference with the principal and the right to question complaining witnesses. In the case of a suspension over five days, the student is entitled to a formal hearing before the school superintendent or his/her designee.
A student who is 18 and older can see his/her school records except those that belong to a teacher, involve school security, contain psychiatric or treatment records, certain letters of recommendation and/or records regarding the student while that student was not enrolled in the school. For students under 18, the parent has the right to see the student's records to the same extent as the student who is 18 and older.
If there are no guidelines in the Student Handbook on how to access your school records, a request to review them can be made by a parent or legal guardian for a youth under the age of 18, or by the youth if he/she is 18 or older.
The school has 45 days to comply with the request and may chargeup to 25 cents per page if records need to be copied, as long as it would not deny the parent/student access to such records. If the records involve a student receiving special education, all records must be made available to the parent/student (as applicable) upon request.
Young persons or parents who believe there is erroneous information in the records, he/she and/or the parent or legal guardian may ask to have it removed. If the school does not agree, a hearing can be requested. If the information is not removed following the hearing, the youth and/or the parent or legal guardian (as applicable) has the right to submit a written statement that becomes part of the record as well.
An applicant must present proof of age (a birth certificate, baptismal record), a copy of his/her immunization record and provide proof of residency in the district. For a young person in a shelter, a designation form (as discussed in II.4) serves to establish eligibility in lieu of residency. Normally, a student has 14 days from the date of enrollment to present immunization records.
Homeless children or youth living in a temporary shelter have the right to attend the school district he/she attended prior to becoming homeless or living in a temporary shelter [see Q. II.1].
For young people who are not homeless, there are some schools that offer the opportunity for students to attend a public school outside their district with the payment of tuition. For children with special needs, if the school district where they reside is unable to provide them an appropriate education, they may recommend a school outside the district. In cases where a district fails to offer an appropriate placement to a child with a disability, a parent may place a child directly and seek reimbursement from the district at an impartial hearing.
Legal Rights and Responsibilities of Youth
As a general rule, a young person under the age of 18 cannot leave home. The police can take a youth under 18 who leaves home without parental permission into custody and return the child home. However, a youth under 18 may go to a certified runaway shelter for up to 30 days, without parental consent, and may not be forced to return home. For those 30 days, the shelter is the youth's home.
Young people under 18 and in the jurisdiction of the Family Court or in the custody of the Office of Youth and Family Services will be returned to the facility where they were placed.
In New York State, a young person is considered an adult for most purposes at 18. At that point they are fully responsible for the contracts they sign. Although young people under 18 may sign contracts, most contracts cannot be enforced against them. Not surprisingly, landlords are quite hesitant to enter into leases with minors for that reason.
For a discussion of a minor's right to consent to medical treatment see Section V
Any young person can obtain a Certificate of Birth, which is different from a Birth Certificate. A Certificate of Birth includes the young person's full name, and the date and place of birth. The document may be obtained, free of charge, from the Department of Vital Statistics in the county where the youth was born, except in New York City, where the records for all five counties are in the Manhattan office.
A Birth Certificate contains more extensive information and a youth must be over 18 or have parental consent to obtain it.
Youth under the age of 21 are obligated to obey the reasonable rules set by their parents/guardians as a condition of their continued support.
In New York State, young people are entitled to parental support until they are 21. If a young person leaves home because the conditions are unbearable, the youth may succeed in a proceeding for support in Family Court. If, however, the young person leaves home to be on his/her own, the parents' obligation to support the young person is terminated.
In New York State, parental consent is required to obtain a learner's permit for persons under 18. At 17, if a young person has successfully completed a driver's education course and has received a "Blue Card," parental permission is not required to get a permit. At age 18, parental consent is not needed to obtain a permit, with or without a driver's education course.
Since parents have the obligation to support their children and a child may legally choose to stay at a runaway shelter for up to 30 days, a young person should not be denied his/her possessions while staying at a licensed shelter. Although a parent may be sued for refusing to provide basic support, that course of action is not recommended. In extreme cases where parents refuse to give the child access to his/her belongings and the child plans to return to his/her home to get them, it may be wise to ask for a police escort to avoid the possibility of a confrontation. A parent's refusal to provide for the basic needs of a child may constitute child neglect as well, which indicates the need for CPS involvement.
A parent cannot force a child staying at a licensed runaway/homeless youth shelter to return home. The child, however, may return home when he/she feels ready. A parent may not legally refuse to allow a young person under 21 to return home without a court order.
If there is an allegation of abuse and an Article 10 petition has been filed, the young person may be allowed to remain at a certified residential program for more than 30 days. Even if an allegation of abuse is unfounded, a young person cannot be forced to return home and has the right to remain at the licensed runaway/homeless youth program for up to 30 days. In extreme cases of abuse, a child may be removed from his/her home by the Department of Social Services. Such actions are reviewable by the Family Court, to determine whether removal is warranted.
A young person over 16 may access services, treatments, placements, or therapy to the same extent as others. For example, hospitals are generally required to provide free emergency medical services to anyone and may not refuse treatment simply because someone has no health insurance.
Parental Rights and Responsibilities
(a) According to the Domestic Relations Law 32 and Family Court Act 413, parents, if they are financially able, are responsible for the support of their children until they reach 21. Parents cannot be required to support their children over 21 unless there is an express agreement in place between that parent and child.
In New York State, abandonment of a child under the age of 14 is a crime (New York State Penal Law 260). A parent, who refuses to support a child under the age of 16, can be charged with the crime of non-support.
Generally, a parent is not responsible for a contract signed by a minor. However, under the "Doctrine of Necessaries," a parent and minor may be held responsible for a minor's contract for essential items (food, shelter, clothing).
(b) Minors living on their own may be responsible for their own health care. However, based on the legal obligation of parents to support their children, parents can be held liable for the cost of the child's medical care when a minor is living at home, even if they (the parents) have not given consent. This is true in the case of an emergency medical treatment.
(c) When a youth under the age of 21, leaves home without parental consent and without "good cause," or refuses to obey the reasonable rules set by their parents, the young person may forfeit his/her claim to parental support. If the child leaves home because the conditions are unbearable, the parents may not be relieved of the obligation to support the young person. However, the young person may have to bring the parents to Family Court to obtain support in such cases.
According to the Child Welfare Reform Act, when a child's parents are unavailable and the child is under 18, the local Department of Social Services should offer the youth placement in foster care.
Parents can file a Person In Need of Supervision (PINS) Petition against their "incorrigible" children who are under the age of 18. With an older youth, the parent may be able to obtain an Order of Protection from the Family Court if the child is 18 or older and the "incorrigibility" constitutes a Family Offense.
A Child Maltreatment Petition is the Court document filed by a Child Protection Agency (the Office of Children & Family Services) which alleges that the child is an abused/neglected child. It is often referred to as an "Article 10 petition." The petition must adequately notify the parent of the time, place and nature of the alleged abuse.
Section 9.43 of the Mental Hygiene Law permits judges to issue warrants on the verified statement of a parent that a child is mentally ill. The warrant authorizes the police to take the child into custody to deliver the child to court. Once in court, the judge will determine whether the child is in need of a psychiatric evaluation. The warrant issued is only valid for 30 days, and may only be enforced during court hours.
The judge will have to determine whether or not the child is likely to harm him/herself or others due to mental illness. The child has the right to counsel in such proceeding and should request that one be assigned if an attorney has not been appointed. For further information, the Mental Health Information Service in your region should be contacted.
If a child is under the age of 18, a parent may call the police to pick up the child to bring the child home. Remember, however, that for a period of up to 30 days any child may stay at a certified runaway program (which includes programs that use host homes for residential services), and the police may not force his/her return home.
If the child is under the age of 18 and is living with someone outside his/her home, and not in a certified program, the police can pick up the minor and bring him/her home or to the court.
The New York State Runaway and Homeless Youth Act of 1978 defines a runaway as a person, under the age of 18, who is out of the home without the knowledge or consent of the parent/guardian. The Act requires that parents/guardians be notified within 72 hours (preferably within 24) of a minor's arrival at the shelter. This requirement is only waived when there are "compelling reasons" not to notify the parents.
Notification only requires that the shelter let the parent know: that the child is at a certified program, the emotional and physical condition of the child, and the circumstances that brought the child to the program. The program never has to disclose the child's actual location.
In most cases, parental consent is required to obtain routine medical care for a minor.
However, research (to date), did not reveal any cases in which a physician was held liable for treatment that benefited the minor where the minor gave his/her "informed consent." In order for a minor to give "informed consent," the physician should take into account:
- the age of the patient,
- the patient's maturity,
- the ability of the minor to understand the information being shared.
In the case of a medical emergency, where a delay can lead to complications, a physician has the obligation to treat the minor even in the absence of parental consent.
A minor may not give consent for most elective procedures.
Also see Section I question 2
A young person, over the age of 16, who is not living with his/her parents, has no medical insurance, and is either a citizen or a lawful resident alien can apply for Medicaid. Anyone receiving SSI or public assistance is automatically eligible for Medicaid.
Minors who consent to their own health care may be held responsible for the payment of that care. However, based on the legal obligation of a parent to support a child, if the child is living with a parent, the parent will be held liable for the cost of medical care, even if the parent did not give permission for the treatment. In the case of emergency treatment, parents are generally held responsible for payment.
When trying to access third party reimbursement (i.e. health insurance) for a minor covered under a family policy, the young person should be made aware that his/her confidentiality may not be maintained as forms often need to be signed by the policy holder, and the policy holder may receive a notice which includes a listing of the treatment/procedures for which the physician is claiming payment.
The need to obtain parental consent for medical treatment is unaffected by where the child is living.
See Section V question 1 and 2.
A therapist may not inform the parents about a minor's drug use under federal law, which contains strict confidentiality rules in cases where alcohol or drugs are involved. (21 USC 1175)
A youth can get family planning services, including gynecological services and contraception, without parental consent at public health facilities and programs receiving federal family planning funds. There are two federal laws which protect confidentiality in the provision of family planning services: Title X of the Public Heath Service Act and Title XX of the Social Security Act.
When a girl is pregnant, she can get medical/dental/health and hospital services (including gynecological services) related to her pregnancy without parental consent (Public Health Law 2504(3)).
The answer to the question depends on the nature of the duty the program has to the young person. Whether such a duty exists may depend upon the age of the young person and the nature of the medical problem. There are no cases on point. If you have specific questions, you need to seek legal advice. However, in the case of a medical emergency, medical care should be obtained immediately.
A minor can give "informed consent" for an abortion, whether or not that minor lives at home or on her own. There is no parental notification requirement under New York law. The information would remain confidential.
Mental health facilities may provide care to minors without parental consent upon its determination that it would not be in the minor's best interest to seek such consent.
Juvenile Justice, ChildAbuse, Domestic Violence, Penal Law, Order of Protection
Under General Obligation Law 3-112, parents are liable for damage to public or private property, up to $5000, caused by the willful or malicious acts of their children under the age of 18. If the youth is emancipated and living beyond the lawful control of the parent, the parent may be relieved of such liability depending on the circumstances of the child's emancipation.
No. There are no rules that require automatic imprisonment in such cases. However, certain serious crimes require minimum prison terms.
We are assuming that this question refers to the record of a child who commits a criminal offense as a juvenile. Whether or not a record remains depends upon whether the court, on its own initiative, expunges the record or whether a motion to seal the record is granted. Neither occur automatically and, therefore, unless the record of juvenile delinquency is sealed or expunged it remains available. It is also worth noting that a sealed record can be opened if the young person is involved in a subsequent adult criminal conviction.
Although this question refers to procedures governing expungement, it is important to describe two different provisions in the Family Court: one involving the expungement of records and the other involving the sealing of records of juvenile delinquency.
Unless a child is actually adjudicated (found to be) a juvenile delinquent (JD), any record of juvenile delinquency must be automatically expunged. Where a JD is withdrawn, dismissed, or the child is acquitted, the record must be destroyed. The only exception would require the county attorney to file a motion with the court that the record not be expunged. Such motions are filed very rarely and even when filed, are rarely granted. The procedure is automatic and should be noted on the final court order.
Even if the court concludes that the child is a juvenile delinquent, (except in cases involving a designated felony) the court may issue an order sealing the child's record, upon the filing of a motion. To obtain an order to seal a record of juvenile delinquency, a motion must be filed with the Family Court. Such a motion cannot be filed, however, until the child's sixteenth birthday. If the initial request for sealing is denied, the motion may not be renewed for a year, unless the order of denial permits an earlier renewal. There does not appear to be any time limit for filing such a motion. If the young person does not have a copy of an order sealing or expunging any record of juvenile delinquency, the young person should contact his/her law guardian to request that a motion be filed. Unlike an expungement, a sealed record of juvenile delinquency may be opened by the courts in the event of a subsequent adult conviction.
Neither the possession or the sale of drugs alone is a basis to suspect that a child may be maltreated. To file a CPS report, one must suspect that the child is a victim of neglect or abuse as defined in the Social Services Law. Of course, when possession involves drug abuse, it is far more likely to also involve child abuse or neglect.
Although an unfounded report must be removed from the State Registry, a record is nonetheless retained in the event a future report is filed (as a result in recent changes in Social Service law).
Elisa's Law requires both State and local Departments of Social Services to retain unfounded reports of child abuse or maltreatment. Under the new law, these reports are no longer expunged. Unfounded reports, however, must be sealed and are only available to DSS in the event of a subsequent investigation involving a child in the same home. These sealed reports are otherwise unavailable. They cannot be referred to when obtaining clearance from the State Central Registry nor are they admissible in court proceedings.
Various degrees of assault, harassment, and battery between relatives, spouses, people involved in a relationship, or people having a child together are considered domestic violence. Depending on the nature of the relationship, a minor may seek an Order of Protection from the Family Court against a relative who threatens the minor's safety. If the case involves a non-relative who is not a parent to a child they have in common, the only recourse will be Criminal Court.
An Order of Protection can be obtained either from the Family Court(for family/household members) or Criminal Court (against non-family members and family members). A Family Offense Petition must be filed to obtain an Order of Protection from Family Court. The clerk at the Family Court or a Domestic Violence Counselor can usually be of assistance in filling out the forms. In the case of an emergency, ask for a Temporary Order of Protection which can be obtained from a judge immediately upon filing the papers, even before a hearing takes place. To obtain such an Order, the "petitioner" (the person signing the petition) must inform the clerk or counselor that there is an immediate emergency and that the person needs to obtain a Temporary Order of Protection before the papers are served.
To get an Order of Protection in Criminal Court, the district attorney has to first bring criminal charges against that person. You can go to the police to file criminal charges.
Once you get an Order of Protection, carry it with you always and give a copy to your local police.
The answer to the question depends upon many factors including: the amount of marijuana, whether it involves a sale or personal use, whether it is possessed in a public place and open to public view or burning, and the prior record (if any) of the young person. Judges have discretion in sentencing for the possession and sale of marijuana. Sentences range from a violation for which no jail time may be imposed on a first or second offense (for possession of 25 grams or less
of marijuana, not in public view or burning) to a Class C Felony where a judge may order imprisonment for up to six years for possession of over ten pounds. The sale of marijuana, regardless of the amount, is a Class D Felony where the sentence imposed can range from one to seven years. A person may be charged with the sale of marijuana, even when no money is exchanged. Young people under the age of 16 may be adjudicated as a juvenile delinquent in Family Court, where the youth may be sent to a residential facility.
Statutory rape is a felony involving sexual relations between an adult and a young person under 17 to whom the adult is not married. Because a minor under the age of 17 cannot legally consent to sexual intercourse (unless married to his/her partner), a sexual relationship between an adult and a minor, regardless of the circumstances, is referred to as statutory rape. The seriousness of the crime depends upon the age of the adult and the minor, ranging from: rape in the third degree when the adult is over 21 and has relations with someone between 14 and under 17; rape in the second degree when the adult is over 18 and has sexual relations with someone less than 14 and over 11; or rape in the first degree when a male engages in sexual intercourse with someone less than 11, with someone who is physically helpless or uses force. Permissible penalties for statutory rape range from 6 to 25 years (for rape in the first degree) to 1 to 4 years.
Staff of runaway/homeless youth programs are not required to report cases of statutory rape unless it involves family members. In such a case, anyone deemed to be a mandated reporter (under the Social Services Law) would be required to report the matter to the Department of Social Services as suspected child abuse, assuming the victim is under the age of 18. Other than those cases which require reporting, staff of the program are required to keep such information confidential unless the victim requests assistance. In such cases, the police should be contacted if the matter involves a crime, which will precipitate an investigation. In many counties, there are special sex crime units. In any case, the matter should be handled with great sensitivity toward the victim.
In New York State, a person over the age of 16 is tried as an adult for any crime committed. However, young people between the ages of 16-19 may be eligible for the status of Youthful Offender (YO) (Criminal Procedure Law 720.10). This means they can have their criminal conviction sealed (it will not show up on their adult records). Youthful Offender Status is not automatic and must be requested by the person's lawyer. Whether YO status is granted by the court depends upon the nature of the crime committed and the individual's record.
R.A.P. stands for Record of Arrests. It may also be called a NYSID (New York State Identification Document) or a Yellow Sheet. It is the official record of a person's prior arrests and convictions.
A case will not be accepted by the Hotline unless the facts presented constitute alleged abuse, neglect or maltreatment as defined in the Social Services Law. (This is true whether the call is made anonymously or by a mandated reporter.) Guidelines on what constitutes alleged abuse or neglect are available from the State Central Registry of the Office of Children and Family Services.
A young person can try to obtain an Order of Protection from the Family Court (see VI.9). There is at least one case in New York which holds that a young person can sue the Department of Social Services for refusing to take action on the individual's behalf.
CPS's authority ends when a young person reaches the age of 18. For a young person over the age of 18, abuse may involve a criminal matter. When there are younger siblings in the house, however, CPS may be called in to investigate on behalf of younger children even when the victim is over 18 years old.
Suspended judgements and probation may be extended only when the Family Court finds "exceptional circumstances" exist that warrant such extension.
Custody, Guardianship, Paternity and Child Support
To have custody of a child means to assume primary responsibility for a child. Each parent has an equal right to the custody of his/her child. When parents are unable to agree, the question of who gets custody of the child can be brought to the Family Court. If the situation changes after an order has been issued, either parent can petition the court for a change of custody. To obtain legal custody of a child, a parent must go to court. In cases where the child's parents are not living together, it is a good idea for the parent taking care of the child to establish legal custody. The issue of child support should also be addressed in such proceedings.
A custodian is a person usually appointed by the court to assume the care of a minor because the parents or legal guardians have died, are in prison, mentally ill, have abandoned or deserted the minor, or are otherwise unable to care for the child.
When both parties agree on who the father is and the parties are not married to one another, the easiest way to establish paternity is through an Acknowledgement of Paternity. This form can obtained at the local Social Services office. The document is then filed in the Putative Father Registry and the father is legally recognized. If the parties do not agree, a Paternity Proceeding can be brought to Family Court. In such cases, the mother, the putative father or even the child may file a petition to establish paternity. These proceedings can be started anytime before a child is 21. The Clerk at the Family Court should be able to assist a person who seeks to file a Petition for Paternity.
An adult may file a petition for the custody or guardianship of a minor in the Family Court or in Surrogate's Court. Assistance in filing such a petition may be obtained by a clerk at the Family Court or Surrogate's Court in the county where the minor resides. Once appointed, the legal guardian or custodial parent is responsible for the care of the minor. Guardianship and limited guardianship may also be obtained over an adult who is incompetent (guardianship over the person and/or the person's property). A minor may initiate a custody petition through a person over the age of 18 who is referred to as a guardian ad litem. Generally, however, the person seeking custody of the minor is the petitioner.
Parents, whether they are minors or adults, have the right to custody and control of their children. All parents, regardless of their age, have a superior right to custody over non-parents, including grandparents. However, the Domestic Relations Law and the Family Court Act provide a mechanism for grandparents to seek court ordered visitation with their grandchildren. The court's decision is guided by the "best interests of the child."
See Section IV question 1 and Section VII question 4 for a definition of "legal responsibility."
Generally, parents are responsible for the support of their own children up to age 21. When a minor child gives birth, that minor child is responsible for her baby, and the minor's parents remain responsible for her. However, if the young person under the age of 18 continues to live at home, the grandparents' income will be "deemed available" to the grandchild to determine eligibility for Temporary Assistance to Needy Families (TANF).
A mother can simply remove the father's name or any one else's from the day care center list. In the absence of a court order to the contrary, the decision regarding who may pick up the child remains with the child's primary caretaker. Whether this can be held against the mother in a custody proceeding depends upon the facts of the case.
When a family is receiving Temporary Assistance to Needy Families (TANF), the Child Support Enforcement Unit (CSEU) will seek to determine the father's financial status. Except in extraordinary circumstances, mothers are required to provide the Department of Social Services with the name of the child's father as a condition of receiving benefits.
Both parents have a legal duty to support their children. If a parent does not pay support voluntarily, a support petition can be filed in the Family Court. When a father does not pay child support, the CSEU can help. In most communities you can locate the local CSEU at the Family Court. A violation of a Support Order can result in the revocation of one's driver's license, confiscation of tax refunds and imprisonment.
The circumstances of the case and the county in which the order is issued can affect the amount of time that elapses before formal action is taken against a parent who fails to pay court ordered support.
Both parents are presumed to have an equal right to their child's custody. When a custody case is brought before the Family Court, the court decides issues of custody and visitation based upon "the best interests of the child." Factors in making that decision may include: Who the primary caretaker of the child is; who is better able to care for the child; what personal issues (positive and negative) may affect the parent's ability to care for the child - addiction, employment, housing, etc. In cases where both parents seek custody and the child's best interests can be served, the Family Court may order joint custody.
(For a discussion of paternity see Section VII question 1)
If a child whose family lives in another state comes to New York and seeks the assistance of a runaway/homeless shelter, his/her parents' ability to use the courts to force the minor's return is governed by the law of the state where the minor resided before leaving home. In New York, parents may file a petition in Family Court against their child under the age of 16 who runs away from home. However, if a child leaves home in a state where the court has jurisdiction over runaways over 18, the law of that state will govern and the child may be summoned to appear in a New York court for extradition (return) to his/her home state. In other words, if a minor comes to New York from a state where a runaway is considered a person under the age of 19 (rather than 18 as in New York) that state's law governs and the minor may be ordered by a court in New York to return to his/her home state.
Many communities offer pro-bono legal services through Legal Aid, the local Bar Association, or youth advocacy organizations. If your community does not offer these services, go to Family Court and ask the clerk for assistance.
A young person not living with his/her parents may apply to the Social Security office to receive his/her SSI benefits directly. The toll free number for the Social Security Administration is 1-800-722-1213. Depending upon the age and circumstances of the minor, the Social Security Administration may want to designate a "representative payee."
A young person not living with his/her parents may apply to the Social Security office to receive his/her SSI benefits directly. The toll free number for the Social Security Administration is 1-800-722-1213. Depending upon the age and circumstances of the minor, the Social Security Administration may want to designate a "representative payee."
It depends. If the young person is "emancipated" and living apart from his/her custodial parent without permission, he/she may relinquish his/her right to support depending on the nature of the court order. Depending on the circumstances, the young person may wish to discuss the reasons for leaving home with the noncustodial parent. In cases where the young person should receive child support directly, it may be necessary to return to court to amend the court order. In the event the parent refuses to continue support and the decision to leave home was based on "extraordinary circumstances," the minor through a "guardian ad litem" (someone over 18), may file a Petition to amend the prior order and seek support.
Generally, a child only remains in a shelter for a brief period of time. In such cases, the parents remain responsible for his/her care and custody and, therefore, the assistance received should not be terminated. At the same time, the fact that they continue to receive it reinforces the fact that the parents continue to be responsible for the care of the child. Only in cases where the parent loses custody of the child or forces the child to leave home would a question arise regarding their right to such assistance.
Any person over the age of 16 can apply to receive public benefits. New restrictions established under Temporary Assistance to Needy Families (TANF) are making the approval process very difficult for young people. A youth who has no other option may need public assistance. However, the five year lifetime limit to receive assistance will apply.
If the court does not place the child, the child can go to the Department of Social Services for emergency shelter and food stamps.
Technically, a youth under the age of 18 can sign a lease. The lease, or any contract, however, is not legally binding on the youth and, therefore, many landlords will refuse to enter into a lease with a minor.
Client Information and Confidentiality
Both the Federal Runaway and Homeless Youth Act of 1974 and the New York State Runaway and Homeless Youth Act of 1978 require that programs keep all client records confidential, unless the young person signs a release which indicates the information to be released, to whom and for what purpose. As a general rule, shelter staff may not release any information without a signed consent unless there is a compelling reason to do otherwise. Examples of compelling reasons include cases where you believe the client is at risk of suicide, has threatened to harm a third party, or when child abuse has been disclosed and you must, by law, report it to the Child Protective Hotline.
In all cases, it is the agency or program that "holds" the confidential information, not an individual employed by the agency. Each agency should have its own procedure governing access to case files, which individuals within that agency must adhere to.
If a program monitor from a public agency (Federal, State, County) is reviewing a program they may request to review a client's files. However, the laws covering confidentiality on those files also extend to them and they may not release any information from those files to a third party.
In People v. Garcia (1985) 128 Misc. 2d810, 491 NYS 2d552, the confidentiality rights given to young people in runaway/homeless youth programs were recognized and the court held that a subpoena served on a program that demands any and all records on a client must be quashed. Never ignore a subpoena. In all cases, call your agency lawyer.
Apart from the affirmative obligation to release information when there is a compelling reason to do so (see X.1), you may have to release information when served with a subpoena. A subpoena is an order, signed by a court or an attorney, to compel testimony or require the production of records in a court or administrative proceeding.
While a subpoena should never be ignored, you do not automatically have to turn over everything requested. If a youth has no objection to turning over the requested information, have him/her sign a release form before releasing the information. If the youth objects, you should have your program's attorney contact the person issuing the subpoena to ask that the subpoena be withdrawn. The attorney will have to evaluate the situation and advise you as to how to proceed. In any case, a subpoena that makes a blanket request for any or all information about a client is overbroad and should be challenged (see Section X question 1).
All information about the young people you serve is confidential. The police have no more right to the information than anyone else. You may not release information about a current or former client without their prior, written consent, unless the court compels you to turn overthe information (see Section X question 1 and 2).
The shelter has no special obligation to contact the police if it finds outthat a youth in its care has an outstanding warrant. Any information you release, even to the police, must be with the youth's prior, written consent. If the police come to the program with a warrant, you must comply with the warrant. If the warrant is for a person in the shelter who is there, the warrant must be honored.
When a young person is living at a shelter, the shelter is considered their home. The youth has the same rights to privacy in a shelter as he/she would have at home. The police may not enter the shelter without a warrant. The only exception would be in a case where the police were in "hot pursuit" of a youth, in which case the police would have access to a shelter or a home without a search warrant.
No, there does not seem to be any special legal issues regarding confidentiality for street outreach workers. However, if the worker is part of a runaway/homeless youth program, that person would be guided by the confidentiality rules governing that program (See X.1). If the person is a mandated reporter, he/she would be required to report suspected child abuse or maltreatment.
PINS stands for Person In Need of Supervision.
A PINS petition can be filed in the Family Court against a minor under the age of 18 who is alleged to be incorrigible, truant from school, and beyond the lawful control of his/her parents. Usually the petition is filed by a parent, guardian, or school official, but the petition can also be filed by the police as well.
A PINS, according to Family Court Act 712(a), is defined as a person under the age of 18, who does not attend school regularly although required to do so, or who is incorrigible, ungovernable, or habitually disobedient, and beyond the lawful control of his/her parents, or is guilty of unlawful possession of marijuana. A minor found to be a PINS may be placed on probation or in a residential program. The case may also be adjourned in contemplation of dismissal or the PINS may receive a suspended judgement.