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LawHelpNY.orgNew York

How to Win Your Case

Authored By: National Coalition for Child Protection Reform
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This resource will explain what you, the parent, can do to help your own case. This booklet is not meant, however, to replace the advice of your attorney. You should speak with your lawyer before making any decisions.

 

Defending the charges against you

When the Administration for Children's Services (ACS) has filed a complaint in Family Court claiming that you abused or neglected your children, a "petition" is the legal paper that starts the court case. You should get a copy of this petition so you can find out what you are accused of. If you need a copy, go to the Record Room in Family Court. Bring a photo ID and money for photocopying. The petition explains why ACS believes that you abused or neglected your children; it lists the charges against you.

 

Physical abuse/battering and sexual abuse

If your husband or boyfriend or another adult is accused of beating your children, you can also be charged with abuse or neglect. Even if the charge is not true, you may want to consider asking your partner to live apart from the family so that the children can return home while the case goes on in court.

If your partner physically or sexually abused you or your children, you will want to show that you can protect your children from that person. If the judge thinks you cannot protect them, the judge may decide that you are an abusive or neglectful parent, even though you never laid a hand on your children. Here are some things you can do to show the judge that you can protect everyone from the person who abused you or your children:

  • Find a new place to live away from the abuser. Bring proof to court that shows that you really did move, like a gas or electric bill, a lease, or a letter from your landlord.
     
  • Show the judge that you have enough money to live on your own. Bring pay stubs or any other papers that show you have a job. If you get public assistance, get a printout of your budget, showing that you have a separate welfare case from your spouse. If you can get documents showing where the abuser lives, bring those too.
     
  • Separate from the abuser and tell the judge that the separation is permanent. If you tell the judge that you think you can get back together with the abuser in the future, the judge may think you do not understand the danger to your children.
     
  • Tell the judge that you want an order of protection (this is a written order from the court telling the abuser he cannot come near you or the children) and that you will not let the abuser come near any of you. If you already have an order of protection, make sure you call the police if the abuser comes near you or the children.
     
  • Show that you are getting help by going for counseling. Get counseling for you, your kids and maybe all of you as a family.

 

Mental unfitness

ACS may charge you with "mental unfitness," which means that ACS thinks you have some kind of mental illness or problem. If the charge is not true, you may want to get evaluated by a therapist to show that you are able to take care of your children. The therapist should give you a written report that you can show the judge. In the report, the therapist should discuss how you are able to care for yourself and your children.

If you do have emotional problems, the best thing to do is to get therapy if you do not already go for counseling, because you will want to show the judge that you are taking steps to get better. Get a letter from your therapist stating you are in therapy and how often you go. If possible, have the therapist discuss the following in a letter:

  • Your diagnosis and whether the condition is temporary or permanent
     
  • How your problems affect your ability to care for your children and how they affect your daily activities
     
  • If you care for yourself and family or if you need help from friends or family
     
  • Whether you take medication, how much you take a day and how the medication affects your ability to care for your children

If you need help to take care of yourself and your children, bring the family member or friend who helps you to court so you can show the judge. If that person cannot come to court, get a letter from him or her that says what s/he does for you.

 

Drug or alcohol abuse

If the charge against you involves alcohol or drug use, you want to show the judge that you have never used alcohol or drugs, or that you no longer use them, and are taking steps to stay clean. If you are still using alcohol or drugs, you will want to get clean.

The best proof that you have stopped using drugs is negative drug tests that show that you are drug-free. Random tests (this means you have no more than a day's warning that you will be tested) are the most convincing evidence for a judge. You should be tested at least once a month. Twice a month is better.


Some drug programs test daily. If you don't attend on certain days, the judge may think that you skipped a day because you were using drugs that day.

If you are not in a program and are trying to have tests done to show that you do not take drugs, you may be able to get tested at a local laboratory. If you want to have random tests, ask ACS to help you set something up.

It's best to ask questions before you choose a rehabilitation program. Leaving a program because you don't like it may make the judge think that you are not serious about getting clean. A pattern of switching suggests that you have something to hide, have trouble sticking with the structure of drug rehabilitation, or are not dedicated to living drug-free. Even if you have a good reason to want to switch programs, the judge may not believe you.

Always get copies of your test results before you go to court. You don't have to wait for your attorney to do it. Show the tests to your lawyer, so that he or she can present them to the judge. (Keep copies for yourself.)

 

Support from your drug/alcohol counselor

Do you have a good relationship with your therapist, a counselor, or other staff person at your drug/alcohol program? If so, ask that person to come to court and testify for you. A counselor who comes to court willingly is sending a clear message about how strongly s/he feels about you and your case. If your counselor doesn't want to come to court, your attorney or the judge can subpoena the counselor, which will order the counselor to come to court and testify.

You can also ask the counselor to write a letter about your progress in the program. The letter should include:

  • How long you have been in the progra
  • The type and amount of drug testing
  • How well the counselor knows you
  • Your progress in overcoming the problems you have
  • Your attendance at the program (do you miss days or do you show up each time?)
  • A description of any other services you receive at the program and your progress (for example, individual or group therapy, parenting skills).

Bring the letter to court and give it to your lawyer (keep a copy for yourself).

 

Support groups

Many parents find that support groups such as Alcoholics Anonymous and Narcotics Anonymous help them with recovery. These support groups can also help you cope with how much you miss your children and how difficult it is to get them back. Your participation in a support group may show the caseworker and judge that you are serious about changing your lifestyle and preventing a relapse.

 

Relapses

Relapses are common, but they can really hurt your court case. After a relapse, you must test negative for drugs to prove that you are serious about staying off drugs. You and your drug counselor should come up with a relapse prevention plan together, which you can show to the judge. If you have a very important reason for the relapse, a letter from your therapist or counselor discussing the cause or the relapse may help.

 

Excessive discipline

You may be charged with excessive physical discipline (or "corporal punishment"). If you did not physically discipline your child in the way ACS says you did in the petition, be prepared to explain this to the judge. Be prepared to show the judge that you are telling the truth. If your child has been seeing a pediatrician regularly and there was never any sign of physical discipline, this may show that you did not use excessive corporal punishment. Get a copy of your child's medical records or a letter from the pediatrician, and bring that to your lawyer.

If it is true that you disciplined your child by hitting your child so hard that it left marks, there are several things you can do. If you thought that it was okay to hit the child that hard, you will want to show you have taken steps to learn other child rearing practices that are acceptable to the judge. If you hit your child too hard because you were angry and lost control, it may be helpful for you to work with a therapist to help you manage anger and stress and to learn how to control and discipline your child. If you are not already going to therapy, starting in therapy will help your case and your family. Your therapist can volunteer to come to court or write a letter. Discuss this first with your attorney.

If there is a reason that you punished your child physically, and that reason has been dealt with (for example, there was a specific stress on the family such as a death or serious illness), or your use of physical discipline can believably be explained as a "one time only" event, talk to your attorney about this. You should only provide an explanation if it is a strong one, because otherwise your explanation may be viewed as an "excuse" and the judge may not believe you.

If your explanation is not strong, it may be better to continue with therapy, visitation and whatever other programs you think will help you, and to show progress in those activities.

Parenting skills classes are classes which teach parents ways to discipline their kids that are okay. If you enroll yourself in a parenting skills class, it will show the judge and the law guardian that you are serious about getting your children back. Be sure to tell your caseworker about better ways of discipline that you have learned from parenting skills class.

 

Educational neglect

If the charge against you is that you did not send your child to school, you should get evidence to show that your child did go to school or why your child did not go to school (for example, your child was ill and you have medical records or a letter from your child's doctor that will show this). Check the number of days the child was out of school; the school will keep records of how many days your child was absent. Get copies of these records and see if the school's records match what ACS says. If not, use the school records to help prove your case. If your child was absent because of a medical problem, get proof of the medical problem from the child's doctor. If your child was absent because of an emotional problem, ask your child's therapist to write a letter explaining the situation. Ask the therapist to describe what you have done, as a parent, to try to help your child to go to school. If you have other good reasons to show why your child was not in school, collect whatever proof you can and show it to your lawyer. Always keep copies for yourself.

If your child is expelled from school, it is the school's responsibility to place your child in another school. You should work with the school staff to make sure they find another place for your child as soon as possible.

 

Medical neglect

If the charge against you is that you did not take your child to see a doctor when your child got sick, you should explain why your child was not seen by a doctor. For example, if you had a problem with your insurance or Medicaid, and your doctor refused to see your child because of that, get a letter from the doctor's office stating this. Always keep a copy for yourself.

If your child goes to a doctor for regular check-ups, provide proof of this - get copies of bills and test results from the doctor's office. Always make copies for yourself and your lawyer.

Last Review and Update: Jun 18, 2003