Domestic violence cases in New York Family Court are complex — especially when the Administration for Children’s Services (ACS) becomes involved. One landmark case, Nicholson v. Scoppetta, 3 N.Y.3d 357 (2004), fundamentally changed how New York handles situations where a child witnesses domestic violence. For survivors in Brooklyn, NY, this case can make the difference between losing custody and keeping your family together.
At Gilmer Law Firm, PLLC, we represent both victims of domestic violence seeking protection and parents defending against neglect allegations. If ACS has threatened to remove your children simply because they witnessed abuse against you, it’s important to understand your rights under Nicholson.
The Facts Behind Nicholson v. Scoppetta
Sharwline Nicholson, a Brooklyn mother, was the victim of domestic violence. Even though she had never harmed her children, ACS removed them from her custody on the grounds that they had witnessed abuse against her. Nicholson, along with other mothers in similar situations, brought a federal lawsuit challenging this practice.
The case reached the New York Court of Appeals, which was asked to decide a key question:
Can a parent be found neglectful solely because their child witnessed domestic violence against them?
The Court’s Ruling: Witnessing Abuse Alone Is Not Neglect
The Court of Appeals answered clearly — no. Under Family Court Act § 1012(f), neglect requires proof that:
- The child’s physical, mental, or emotional condition has been impaired or is in imminent danger of impairment; and
- The harm or risk of harm is due to the parent’s failure to exercise a minimum degree of care.
In other words, the law does not create a presumption that witnessing domestic violence equals neglect. ACS must prove that the child suffered actual harm or imminent risk and that the harm was caused by the parent’s inadequate care — not simply because the parent was a victim.
Why This Matters for Brooklyn Families
Before Nicholson, ACS often removed children from battered mothers without court orders or adequate evidence of harm. This not only traumatized families but also punished victims for being abused.
After Nicholson, ACS and Family Courts must conduct an individualized assessment of each case. Removal is a last resort, not an automatic response.
For Brooklyn parents, this means:
- You cannot lose custody solely because your child saw you being abused.
- ACS must show a causal connection between your actions (or inactions) and harm to your child.
- Courts must consider less disruptive alternatives to removal.
Removal of Children After Nicholson
The Nicholson decision also clarified when a child may be removed under Family Court Act §§ 1021–1028. Emotional harm from witnessing violence can justify removal only if:
- There is credible evidence of imminent danger to the child’s life or health; and
- Removal is necessary to prevent serious harm; and
- No less intrusive alternative (such as safety planning or supervision) is available.
The Court emphasized that removal can sometimes be more harmful than leaving the child at home, especially when the abused parent is protective.
Balancing Safety and Family Integrity
New York law recognizes two important — and sometimes conflicting — principles:
- Keeping biological families together whenever safely possible
- Prioritizing the health and safety of children when they are endangered
The Nicholson ruling attempts to balance these goals by preventing unnecessary removals while still allowing intervention when a child is truly at risk.
What This Means for Domestic Violence Survivors in Brooklyn
If you are a survivor facing ACS involvement:
- You have the right to be treated as a protective parent, not automatically as neglectful.
- You can demand that ACS prove actual harm or imminent danger before seeking removal.
- You can request that the Family Court explore alternatives to removal — such as orders of protection, supervision, or services.
How Gilmer Law Firm, PLLC Can Help
As a Brooklyn, NY family law attorney experienced in domestic violence and neglect proceedings, George M. Gilmer, Esq., fights to protect your parental rights. Our firm can:
- Defend against neglect allegations when ACS claims your child is at risk solely because of domestic violence in the home.
- Advocate for trauma-informed solutions that protect children without punishing survivors.
- Seek court orders of protection to remove the abuser from the home instead of removing your child.
- Challenge emergency removals that do not meet the strict legal requirements.
- Appeal wrongful Family Court decisions based on misapplication of Nicholson.
Key Takeaways from Nicholson v. Scoppetta
- Witnessing domestic violence alone does not prove neglect.
- ACS must show both harm (or imminent risk) and a failure of minimum care.
- Courts must consider the real dangers survivors face when leaving an abuser.
- Removal is appropriate only when no other alternative will protect the child.
- Survivors deserve support, not punishment, from the child welfare system.
If ACS Is Threatening to Remove Your Child in Brooklyn, NY
Time is critical in ACS cases. The earlier you involve an attorney, the better your chances of keeping your family together. The Nicholson decision gives you powerful protections, but ACS may still push for removal unless you assert your rights.
Contact Gilmer Law Firm, PLLC for immediate legal help. We will:
- Review your ACS case and explain your rights under New York law
- Represent you at emergency hearings and fact-finding trials
- Present evidence showing you are a protective parent
- Work to have your child returned home quickly if they have already been removed
Call Us Today
If you are a domestic violence survivor or a parent accused of neglect in Brooklyn, NY, Gilmer Law Firm, PLLC can help. We understand the law, the court system, and the emotional toll these cases take.
Disclaimer: This blog is for informational purposes only and does not create an attorney-client relationship. Every case is unique, and you should consult a qualified attorney for legal advice.
