Introduction: Two Hearings, One Critical Question
In New York Family Court, when a child has been removed because of alleged abuse or neglect, two distinct hearings often take place. The first—under Family Court Act § 1028—addresses whether the child can safely return home while the case is pending. The second—the fact-finding hearing under § 1046—determines whether the allegations of neglect or abuse are proven by a preponderance of the evidence.
Sometimes, the court merges these proceedings into a single combined 1028 and fact-finding hearing. This consolidation can streamline the case, but it also requires an understanding of the different burdens of proof and evidentiary rules that apply—something every experienced New York ACS attorney must navigate carefully.
The Purpose and Timing of a § 1028 Hearing
Under Family Court Act § 1028, a parent or legally responsible person may request the return of a child who has been temporarily removed. The court must hold a hearing within three court days, unless there is good cause for delay .
The hearing focuses on whether returning the child would pose an imminent risk to the child’s life or health. The burden rests on the child protective agency—most often the Administration for Children’s Services (ACS)—to justify continued removal. The court must also determine whether reasonable efforts were made to prevent the need for removal or to make a safe return possible .
For parents and practitioners, this hearing is often the first opportunity to challenge ACS’s narrative and present evidence of rehabilitation, service participation, or the strength of family supports. An experienced New York ACS attorney understands that this stage can shape the entire course of the litigation.
The Higher Standard at a Fact-Finding Hearing
A fact-finding hearing under § 1046 has a stricter evidentiary threshold. Here, ACS must prove neglect or abuse by a preponderance of the evidence, and only competent, material, and relevant evidence may be admitted .
By contrast, § 1028 allows the court to consider material and relevant evidence, even hearsay, because the hearing is expedited and designed to address immediate risk rather than final guilt or innocence. As the Second Department noted, a § 1028 hearing “should not be taken as any indication of what ultimate determination should be made” at fact-finding .
For an experienced ACS defense attorney in New York, knowing when and how to object—or when to allow certain evidence in for strategic reasons—is critical to protecting a client’s long-term position.
When the Court Combines the Hearings
A combined 1028 and fact-finding hearing occurs when the issues of temporary removal and the allegations of neglect are so closely related that hearing them together avoids duplication.
In Matter of Wynter V. (2024), ACS alleged that a mother’s untreated mental illness placed her child at imminent risk. After fact-finding began, she applied under § 1028 for the child’s return. The court conducted a combined hearing and, after considering all evidence, denied the application and found neglect, citing ongoing erratic behavior that endangered the child .
Likewise, in Matter of Liam V. (2023), the Family Court consolidated the 1028 and fact-finding proceedings to evaluate both immediate and long-term concerns. The judge reviewed medical records, police reports, and testimony, ultimately concluding that both parents had neglected the children .
These cases show why a combined hearing demands precise preparation and legal judgment—the type typically brought by an experienced New York ACS attorney who understands the interplay between emergency risk assessment and trial-level proof.
Why Evidentiary Standards Matter
The challenge in combined hearings lies in reconciling two legal standards. Evidence admissible under § 1028—such as caseworker summaries or service notes—may not meet the stricter requirements of § 1046. Courts cannot base a finding of neglect on hearsay alone or on evidence that was only relevant to the temporary-risk inquiry.
In Matter of Louie L.V. (2019), the Family Court improperly admitted transcripts from a prior § 1028 hearing into the fact-finding record. The Appellate Division reversed, holding that the relaxed evidentiary rules of § 1028 cannot carry over to the fact-finding phase .
This distinction is vital: the parent’s liberty interest in raising a child demands that findings of neglect be based on competent, reliable proof—not on preliminary allegations or expedited evidence.
The Burden of Proof in Each Phase
At a § 1028 hearing, ACS bears the burden of showing by a preponderance of evidence that returning the child would present imminent risk and that no lesser remedy—such as supervision or services—could ensure safety .
At fact-finding, ACS must again meet the preponderance standard, but this time to prove that neglect or abuse actually occurred under § 1012(f). The focus shifts from predicting danger to establishing conduct—specific acts or omissions that harmed or threatened the child .
An experienced New York ACS attorney will often highlight this difference to argue that even if risk once existed, the statutory definition of neglect has not been met.
Practical Considerations for Practitioners
Combined hearings require strategic awareness:
- Preserve Objections: Evidence admissible at the 1028 stage may not satisfy the fact-finding standard later.
- Clarify the Record: Request that the court specify which evidence applies to each phase.
- Guard Against Delay: Combined hearings should not undercut the expedited nature of § 1028, which promises a prompt determination for families .
- Develop a Rehabilitation Narrative: Demonstrating progress in services or therapy can help shift judicial focus from imminent risk to parental capacity for change.
Conclusion: Balancing Speed and Fairness
The combined 1028 and fact-finding hearing serves an important role in New York child protective proceedings. It balances the urgency of protecting a child with the parent’s constitutional right to family integrity.
Handled properly, it can bring both resolution and fairness. Handled poorly, it risks merging emergency risk findings with final determinations of neglect. That’s why these cases call for the skill and judgment of an experienced New York ACS attorney—someone who can navigate complex evidentiary issues, advocate within the narrow timelines of § 1028, and ensure that every finding rests on competent, reliable proof.
