When the Administration for Children’s Services (ACS) investigates a report of child abuse or maltreatment, it must decide whether the report should be indicated or unfounded. That decision depends on a strict legal standard of proof.
Since January 1, 2022, ACS has been required to use a “fair preponderance of the evidence” standard when evaluating allegations of abuse or neglect. This replaced the older, lower threshold of “some credible evidence.” The change was enacted through New York’s State Central Register (SCR) Reform Legislation and formally adopted in the Office of Children and Family Services (OCFS) directive known as 21-OCFS-ADM-26.
This reform significantly raises the burden ACS must meet before labeling a parent or caregiver as the subject of an indicated report. If you have received a notice from ACS, contact an experienced Brooklyn ACS Defense Attorney immediately to protect your rights.
The Legal Definition of the Standard
The OCFS directive explains that “among other amendments, this new law changes the standard of evidence that CPS must utilize in determining whether to indicate a report of alleged child abuse or maltreatment that is accepted by the SCR on or after January 1, 2022, from ‘some credible evidence’ to ‘a fair preponderance of the evidence.’”
It further defines the new legal threshold: “A fair preponderance of the evidence is evidence that outweighs other evidence that is offered to oppose it.”
In plain terms, ACS must now find that it is more likely than not that abuse or neglect occurred. If the evidence supporting the allegation does not outweigh the evidence against it, ACS must close the case as unfounded. For more on ACS investigations and your rights, visit the NYC ACS Parent’s Guide.
Why the Standard Changed
According to OCFS, “a core component of the legislative intent behind the SCR reform legislation was addressing the disproportionality and disparity in race and income for families engaged with CPS. Overrepresentation of low-income individuals and those of color in the child welfare system is well documented.”
The directive also notes that an indicated report can have serious, long-term consequences. It “may be disclosed in a database check conducted by the SCR regarding potential or continued employment or licensure for certain jobs working with children or vulnerable persons,” and it “may be disclosed in future legal action in family court pertaining to child custody and/or visitation.”
By raising the evidentiary standard, the new law helps ensure that only well-supported allegations lead to findings of abuse or neglect. If you believe ACS has unfairly indicated you, contact a Child Neglect Attorney who understands the appeals process under OCFS regulations.
How ACS Applies the “Fair Preponderance” Standard
OCFS states that “to indicate a report of alleged child abuse or maltreatment accepted by the SCR on or after January 1, 2022, CPS must determine and appropriately document that a fair preponderance of the evidence exists that demonstrates that the child is an abused or maltreated child under the criteria in the definitions discussed above.”
In applying this standard, ACS must review all available evidence — home visits, interviews, medical information, and collateral contacts — and determine whether the supporting information outweighs the evidence to the contrary. Caseworkers can no longer rely on partial or unverified claims.
If ACS has contacted your family, it’s essential to have legal guidance from a Brooklyn ACS Defense Lawyer to ensure investigators comply with the correct burden of proof.
The Requirement of Both Harm and Causation
OCFS makes clear that harm alone or neglect alone is not enough. “Demonstrating that the subject of the report’s failure to exercise a minimum degree of care without showing impairment or imminent danger of impairment is not sufficient to indicate a report of maltreatment.”
It continues: “Conversely, demonstrating that the child’s physical, mental or emotional condition was impaired or in imminent danger without showing how such impairment was caused by the subject of the report’s failure to exercise a minimum degree of care is also not sufficient to indicate a report.”
ACS must therefore prove both cause and effect — that the alleged conduct directly resulted in a child’s injury or risk of harm. An experienced New York Family Law Attorney can help you challenge cases that fail to meet this legal requirement.
The Legal Definitions of “Abused” and “Maltreated”
The directive restates definitions drawn from Social Services Law § 412 and Family Court Act § 1012. It provides:
“Abused child means a child less than 18 years of age whose parent or other person legally responsible for their care inflicts or allows to be inflicted upon such child physical injury by other than accidental means or commits, or allows to be committed an offense against such child defined in article 130 of the Penal Law.”
“Maltreated child means a child less than 18 years of age whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of their parent or other person legally responsible for their care to exercise a minimum degree of care.”
For further reading about these definitions, visit the New York State Office of Children and Family Services.
Determining Whether a Report Is “Indicated” or “Unfounded”
Under Social Services Law § 424-a, ACS must finish its investigation within 60 days and decide whether to label the report as indicated or unfounded.
If the evidence outweighs the opposing evidence, the report will be indicated and the subject will receive a Notice of Indication explaining the finding and right to appeal. If the evidence does not meet the standard, ACS must close the matter as unfounded and issue written confirmation.
For parents facing these determinations, a Brooklyn ACS Defense Attorney can ensure ACS applies the correct burden before a finding is finalized.
What Happens After an Indicated Finding
All indicated reports are maintained in the State Central Register (SCR) until the youngest child in the home turns 28. However, indicated reports of maltreatment — those not involving abuse — cannot be disclosed after eight years for employment or licensing checks. They are automatically considered not relevant or reasonably related.
To review or amend your record, you may write to:
New York State Office of Children and Family Services
State Central Register of Child Abuse and Maltreatment
P.O. Box 4480 Albany, NY 12204-0480
📞 518-474-5297
You can also visit the ACS Parent Guide for official directions on record requests and appeals.
The Importance of Legal Representation
Even with this higher standard, an ACS investigation can be overwhelming. Having a Brooklyn ACS Defense Attorney ensures ACS meets its burden of proof and follows proper procedure before any finding becomes permanent.
Your attorney can:
- Review ACS’s evidence for compliance with the “fair preponderance” rule;
- Represent you at OCFS fair hearings;
- File for amendment or expungement of SCR findings; and
- Protect your rights during interviews and home visits.
If your case involves allegations of neglect, consult a Child Neglect Attorney who can explain ACS definitions and challenge unsupported claims.
Final Thoughts
The “fair preponderance” rule means ACS cannot indicate a report based on minimal or questionable evidence. It must prove that the evidence supporting the allegation outweighs the evidence against it.
If ACS has contacted you or issued a Notice of Indication, contact The Gilmer Law Firm, PLLC at 718-864-2011 or visit our office at 15 MetroTech Plaza, 7th Floor, Brooklyn, NY 11201. We offer confidential consultations with an experienced New York Family Law Attorney who understands ACS, OCFS, and the State Central Register process.
Helpful Links
- Brooklyn ACS Defense Attorney – The Gilmer Law Firm PLLC
- Child Neglect Attorney – The Gilmer Law Firm PLLC
- New York State Office of Children and Family Services
- NYC ACS Parent’s Guide to Child Abuse Investigations
