Faith Miller Managing Partner at Miller Zeiderman LLP, authors the latest article for her blog. Read the full article below.
The legal term is Derivative Neglect of a Child. What does the Court consider to be child neglect? Let’s look at some examples.
You’re stuck in a bad marriage where your spouse battles an addiction or is verbally or physically abusive to you or your children. You and your children feel like you’re walking on eggshells and you want ‘out,’ but you’re too overwhelmed and afraid to rock the boat. You may also think the strength of your parenting will compensate for your spouse’s problems—that your love will get your kids “through” until you eventually decide to separate or divorce.
Sound familiar? You may recognize the lonely exhaustion of a bad marriage, and the justification for deferring your and your children’s emotional needs.
But here’s what you may not understand: your children could be suffering from neglect right now and if you fail to act on their behalf, the Court may consider your lack of action to be complicit in the abuse of your children. In fact, you may be shocked to realize that it’s taking place right in front of your eyes.
Is it Child Neglect if Harm is Unintentional?
Yes, neglect includes a failure to deliver a specific degree of care in one aspect of your child’s life, even if harm is unintentional. Neglect also includes the failure to act when your spouse is the main source of your child’s distress. You might be the “good” parent, but if you’re not acting on behalf of your child, you are party to what the Court calls derivative or emotional neglect. Derivative neglect is defined as “failing to exercise a minimum degree of care in providing proper supervision and unreasonably inflicting or allowing to inflict harm or a substantial risk thereof.”
The upshot: You can’t turn a blind eye and pretend that what’s going on isn’t impacting your kids – it is. Just as your spouse may, you can also be charged with neglect and even lose custody of your children.
Investigating and reporting alleged cases of child neglect
According to New York City’s Administration for Children’s Services (ACS), the county’s Department of Social Services (DSS) or the ACS investigates every alleged case of child neglect in New York State. If evidence of child neglect is found, the agency can petition the court for help with protecting the child.
New York State has “mandated reporters” who are required by law to alert the child protective agency of suspected neglect or abuse. These reporters are professionals including daycare workers, dental staff, doctors, substance abuse counselors, nurses, psychologists, teachers, school guidance counselors, the police, and government prosecutors (district attorneys). Private attorneys are not mandated reporters.
I am a highly experienced Attorney for the Child (AFC) and have represented children in a variety of matters, including abuse and neglect, for more than 30 years. I represent my young clients with an undivided loyalty to the child and advocate their wishes. But in divorce cases where I represent a spouse, and child neglect is an issue, I have a duty to protect your confidences. Your child’s well-being is paramount, and so are your parental confidences.
My goal is to ensure all families flourish through successful resolutions. Contact me today if you’re struggling and worry your child may be suffering emotionally. Also, if you feel your child is in imminent danger from neglect or abuse by your partner, I can seek immediate relief from the Court, even without a divorce action.
Common scenarios of child neglect
To open your eyes to how emotional neglect can take hold subtly, here are some common scenarios that can put parenting rights on the line. If you have questions, schedule a consultation with me to help you make sense of next steps if emotional neglect is a possibility.
Failure to act:
· Your spouse is addicted to drugs or alcohol. You’ve been aware that your kids have been alone with your spouse while he/she was under the influence, or your spouse has transported your children in this condition.
· Your spouse has been physically abusive to your child, and you have failed to report the abuse. Your spouse may sometimes spank your child and justifies it as a different discipline style. Or, your spouse is a hothead and throws things when he/she’s fed up. Once he/she hit your child with an object.
· Your spouse demonstrates a pattern of emotional abuse to your child, and you have failed to protect the child. Your spouse consistently belittles your child’s academics or athleticism; yells and curses at your children; labels or scapegoats one of your kids.
· Your spouse has yelled and cursed at you or hit you, and you haven’t gotten an order of protection. If a child witnesses violence at home, it’s considered emotional abuse or neglect.
· You suspect your spouse has sexually abused your child, and you have failed to report the abuse. Reporting sexual abuse is important whenever it’s suspected; child welfare authorities will determine whether or not it occurred. In addition, older children and young adults can now file claims of sexual abuse that occurred long ago. In August 2020, Governor Cuomo signed new legislation extending the look back window for victims of childhood sexual abuse to file claims under the Child Victims Act (CVA). The CVA completely removes the civil statute of limitations for filing sexual abuse claims for a designated period of time—until August 14, 2021. During this time period, sex abuse survivors have a second chance to pursue justice for their abuse no matter how long ago the alleged abuse happened.
· Your spouse suffers from a severe mental illness that presents a danger to your child, and you have failed to protect your child. Your partner has a severe mental illness, which requires medication yet he or she refuses to take it. When not under treatment, your spouse’s behavior is erratic, unpredictable and possibly violent to you and your children. You work full time and have left your children alone with the other parent.
Failure to Deliver Proper Care and/or Abandonment:
· You left your child at an after-school program for hours after the pick-up time, without contacting the school or daycare. The instructor can conclude abandonment and contact a child protective agency.
· You leave your 9-year-old home alone after school sometimes, even though he might be ill-equipped in case of an emergency. While New York State law says there is no set age at which you can leave a child alone, the law states the parent is responsible for deciding whether or not the child is mature and responsible enough to understand the circumstances and take care of her or himself.
· You allow your child to have unexplained absences at school and don’t respond to school officials’ attendance questions. This behavior may constitute educational neglect.
· You don’t vaccinate your child, and you don’t have a religious belief supporting this potential medical neglect. In cases of failure to vaccinate children, a sincere religious belief is determinative in New York State.