When someone is accused of child abuse or neglect in New York, it’s crucial to understand which legal process applies—and what’s at stake. At The Gilmer Law Firm PLLC, located in Brooklyn, New York, we represent parents, caregivers, and alleged perpetrators in both Family Court Article 10 proceedings and administrative hearings to amend or seal an indicated report with the New York State Office of Children and Family Services (OCFS).
Though both proceedings involve similar legal definitions and standards, they serve very different purposes and follow separate procedures. Understanding the difference is essential to protecting your rights—and your future.
Understanding the Legal Definitions of Abuse and Neglect
Both Family Court and OCFS administrative hearings rely on definitions found in Article 10 of the Family Court Act:
Neglect
A parent or person legally responsible for a child may be found to have neglected that child if they fail to exercise a minimum degree of care:
- In providing food, clothing, shelter, or medical care
- In ensuring proper supervision or guardianship
- If they misused drugs or alcohol to the point of impairing their ability to care for the child
Legal Standard for Neglect:
ACS must prove by a preponderance of the evidence that the child’s physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired due to the parent’s failure to provide proper care.
Abuse
Child abuse involves more serious and intentional harm. A parent may be found to have abused a child if they:
- Inflict or allow the infliction of serious physical injury
- Commit or allow acts of sexual abuse
- Create a substantial risk of physical injury or death through reckless conduct
Legal Standard for Abuse:
As with neglect, abuse must be proven by a preponderance of the evidence, but the allegations typically involve a higher degree of harm and often trigger more severe interventions from the court.
Family Court Abuse and Neglect Proceedings (Article 10)
When ACS believes a child has been abused or neglected, they may file an Article 10 petition in Family Court. This begins a formal legal process with two phases:
- Fact-Finding Hearing – The court determines whether abuse or neglect occurred using the standards outlined above.
- Dispositional Hearing – If a finding is made, the court decides what action is necessary to protect the child.
Possible outcomes include:
- Releasing the child to the parent with supervision
- Placement in foster care
- A suspended judgment
- A final order of protection
- Other parole-like conditions
A Family Court Judge (appointed by the mayor in NYC) oversees these cases and has authority to terminate parental rights, impose services, or even place the child with a non-parent in some cases.
Administrative Hearings to Amend Indicated Reports with OCFS (SCR Appeals)
Separately, individuals listed in the State Central Register (SCR) for an indicated report of abuse or neglect have the right to request a fair hearing before an Administrative Law Judge employed by the Office of Children and Family Services (OCFS) under Section 422 of the Social Services Law.
These hearings serve one narrow function:
✔️ To determine whether the indicated report should be amended to “unfounded”
✔️ Whether the report is relevant and reasonably related to employment or the ability to care for children
There is no dispositional phase in OCFS hearings—unlike in Family Court. The ALJ cannot issue orders of protection, place a child in care, or return a child home. The outcome affects only whether the report remains in the SCR, which can impact employment, licensing, and future custody or foster care eligibility
Key Differences Between the Two Proceedings
| Family Court (Article 10) | OCFS Administrative Hearing (SSL § 422) |
| Decides whether abuse/neglect occurred and what happens to the child (disposition) | Determines only whether to amend or seal the SCR report |
| Overseen by a Family Court Judge | Overseen by an OCFS Administrative Law Judge |
| Dispositions include foster care, supervision, protection orders | No legal disposition—only record amendment or sealing |
| Appeals go to the Appellate Division | Appeals handled through OCFS admin channels |
| Cannot seal the SCR | Can seal or amend the report if legal standard not met |
Similarities Between the Two Proceedings
Despite differences, both types of proceedings share critical features:
- Governed by definitions of abuse/neglect in Family Court Act §1012
- Require a preponderance of the evidence
- Allow for testimony, documents, and limited hearsay
- May proceed to hearing unless the respondent consents to the findings
Important Legal Principle: Res Judicata
If a Family Court Judge has already made a finding of abuse or neglect, that finding will preclude relitigation in the OCFS hearing. In other words, if the Family Court found neglect or abuse occurred, you cannot contest the same facts in the administrative appeal.
However, the reverse is not true—a favorable OCFS decision does not guarantee dismissal of Family Court proceedings.
Which Path Applies to You?
- If you’ve been summoned to Family Court due to allegations by ACS, you are facing a legal determination that can restrict or remove your parental rights.
- If you’ve received notice of an indicated report, and no court case is pending, you may request a Section 422 fair hearing to clear your name and protect your employment or licensing future.
The Gilmer Law Firm PLLC – Protecting Your Rights in Brooklyn and NYC
At The Gilmer Law Firm PLLC, we understand that being accused of child abuse or neglect is emotionally devastating and legally complex. Whether you need to fight for custody in Family Court or clear an indicated report with OCFS, our office in Brooklyn, New York, provides experienced, aggressive representation that’s focused on protecting your family, your reputation, and your future.
