Brian D. Perskin & Associates

Case Commentary: Matter of Joshua J.

The Matter of Joshua J. is a New York case involving child custody and child welfare. New York law emphasizes the importance of acting in the best interests of children. The New York Family Court Act s. 1055 discusses placement of a child under with a "relative or other suitable person" provided the "the relative or other suitable person consents to the jurisdiction of the court."

In the Matter of Joshua J., the child in question was a four year old named Joshua who was placed in the custody of his father, Derrick K. The Westchester County Department of Social Services had reason to be concerned with the welfare of the child. A teacher reported that the father appeared to be intoxicated when Joshua was picked up from school. This triggered the Department to send workers to the home later that evening. The father refused entry. The police were called to forcibly enter and search the premises. They found a knife and a baseball bat which they were concerned would be accessible to a child. They also found a bruise on the child's face which had been purportedly caused by the father. With this evidence the child was removed from the custody of the father.

The court had to decide if the child should be removed from the father's custody. The father made arguments that it was reasonable for him to refuse entry to anyone after 9pm because he lived in a dangerous neighborhood. He further claimed that he had not been intoxicated but was under the influence of medication. Also, he claimed the knife and the baseball bat were under his bed and not his son's. He denied that he caused the bruise. Was this enough to remove the child from his custody?

In any event, the court ruled that a child who has been placed under s. 1055 is neglected for the purposes of FCA Article 10 if the parent interferes with the "statutory directive to keep hi m safe". Thus "[b]y shirking his responsibility to DSS through his failure to abide by conditions of supervision to which he had previously agreed, Respondent in effect placed Joshua's safety and welfare at risk." Regardless of the other evidence, simply not given the DSS access to his home constituted neglect.

If you have custody of a child under section 1055 of the New York Family Court Act, make sure that you understand the legal implications a placement of a child in your custody under this section. If you have any questions about the interpretation of the law or what your duties and responsibilities as a parent with custody are, then consult with a lawyer or at least a social worker. It can be very stressful when the Department of Social Services is banging on the door of your home late at night, so you want to have an understanding of your rights and responsibilities before being placed in this situation. In this case, the parent had a duty to answer the door and give the social workers an opportunity to inspect his home.

To read the judgement in full see: http://law.justia.com/cases/new-york/other-courts/2011/2011-51577.html