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Family Court Law

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Part 2 - Article 7 - Family Court

CUSTODY AND DETENTION

Section Description
720Detention.
723Duties of private person before and after taking into custody.
724Duties of police officer or peace officer after taking into custody or on delivery by private person.
725Summons or warrant on failure to appear.
727Rules of court authorizing release before filing of petition.
728Discharge, release or detention by judge after hearing and before filing of petition in custody cases.
729Duration of detention before filing of petition or hearing.
  S 720.  Detention. 1. No child to whom the provisions of this article
  may apply, shall be detained in any prison, jail, lockup, or other place
  used for adults convicted of crime or under arrest and  charged  with  a
  crime.
    2.  The  detention of a child in a secure detention facility shall not
  be directed under any of the provisions of this article.
    3. Detention of a person alleged to be or adjudicated as a  person  in
  need  of  supervision  shall,  except as provided in subdivision four of
  this section, be authorized only in a foster care program  certified  by
  the  office  of children and family services, or a certified or approved
  family boarding home, or a non-secure detention  facility  certified  by
  the  office  and in accordance with section seven hundred thirty-nine of
  this article. The setting of the detention shall take into  account  (a)
  the  proximity  to  the  community  in which the person alleged to be or
  adjudicated as a person in need of supervision lives with such  person's
  parents or to which such person will be discharged, and (b) the existing
  educational  setting of such person and the proximity of such setting to
  the location of the detention setting.
    4. Whenever detention is  authorized  and  ordered  pursuant  to  this
  article,  for  a person alleged to be or adjudicated as a person in need
  of supervision, a family court in a city  having  a  population  of  one
  million  or  more  shall,  notwithstanding  any  other provision of law,
  direct detention in a foster care facility  established  and  maintained
  pursuant  to  the  social  services  law.  In  all  other  respects, the
  detention of such a person in a foster care facility shall be subject to
  the identical terms and conditions for detention as  are  set  forth  in
  this article and in section two hundred thirty-five of this act.
    5.  (a)  The  court  shall  not  order  or direct detention under this
  article, unless the  court  determines  that  there  is  no  substantial
  likelihood that the youth and his or her family will continue to benefit
  from diversion services and that all available alternatives to detention
  have been exhausted; and
    (b)  Where the youth is sixteen years of age or older, the court shall
  not order or direct detention  under  this  article,  unless  the  court
  determines  and  states in its order that special circumstances exist to
  warrant such detention.
    (c) If the respondent may be a sexually exploited child as defined  in
  subdivision  one  of  section  four  hundred forty-seven-a of the social
  services law, the court  may  direct  the  respondent  to  an  available
  short-term  safe  house  as  defined  in subdivision two of section four
  hundred forty-seven-a of the social services law as  an  alternative  to
  detention.

  S 723. Duties of private person before and after taking into custody.
  (a) Before taking into custody, a private person must inform the  person
  to be taken into custody of the cause thereof and require him to submit.
    (b)  After taking into custody, a private person must take the person,
  without unnecessary delay, to his home,  to  a  family  court  judge  or
  deliver  him  to  a peace officer, who is acting pursuant to his special
  duties, or a police officer.

  S 724. Duties  of  police officer or peace officer after taking into
  custody or on delivery by private person. (a) If a peace  officer  or  a
  police  officer  takes  into  custody or if a person is delivered to him
  under section seven hundred twenty-three, the officer shall  immediately
  notify  the  parent or other person legally responsible for his care, or
  the person with whom he is  domiciled,  that  he  has  been  taken  into
  custody.
    (b)  After  making  every  reasonable  effort  to  give  notice  under
  paragraph (a), the officer shall
    (i) release the youth to the custody of his or  her  parent  or  other
  person legally responsible for his or her care upon the written promise,
  without  security,  of the person to whose custody the youth is released
  that he or she will produce the youth before the lead agency  designated
  pursuant  to  section  seven hundred thirty-five of this article in that
  county at a time and place specified in writing; or
    (ii) forthwith and with all reasonable speed take the youth  directly,
  and  without  first  being  taken  to  the  police station house, to the
  designated  lead  agency  located  in  the  county  in  which  the   act
  occasioning  the  taking  into  custody  allegedly  was done, unless the
  officer determines that it is necessary to question the youth, in  which
  case  he or she may take the youth to a facility designated by the chief
  administrator of the courts as a suitable place for the  questioning  of
  youth  or,  upon  the  consent  of  a  parent  or  other  person legally
  responsible for the care of the youth,  to  the  youth's  residence  and
  there question him or her for a reasonable period of time; or
    (iii)  take a youth in need of crisis intervention or respite services
  to an approved runaway program  or  other  approved  respite  or  crisis
  program; or
    (iv) take the youth directly to the family court located in the county
  in which the act occasioning the taking into custody was allegedly done,
  provided that the officer affirms on the record that he or she attempted
  to  exercise the options identified in paragraphs (i), (ii) and (iii) of
  this subdivision, was unable to exercise these options, and the  reasons
  therefor.
    (c) In the absence of special circumstances, the officer shall release
  the child in accord with paragraph (b) (i).
    (d)  In  determining  what  is  a  "reasonable  period  of  time"  for
  questioning a child, the child's age and the presence or absence of  his
  parents  or  other  person  legally  responsible  for  his care shall be
  included among the relevant considerations.

  S 725. Summons  or  warrant  on  failure to appear. The family court
  before which a person failed to produce a child pursuant  to  a  written
  promise  given  under  section  seven  hundred  twenty-four  may issue a
  summons requiring the child and the person who failed to produce him  to
  appear  at the court at a time and place specified in the summons or may
  issue a warrant for either or both of them,  directing  that  either  or
  both  be  brought  to  the  court  at  a time and place specified in the
  warrant.

  S 727. Rules of court authorizing release before filing of petition.
  (a) The agency responsible for operating a detention facility  or  in  a
  city  of  one  million  or  more, the agency responsible for operating a
  foster care facility, may release a child in custody before  the  filing
  of  a petition to the custody of his parents or other relative, guardian
  or legal custodian when the events occasioning the taking  into  custody
  appear to involve a petition to determine whether a person is in need of
  supervision  rather  than  a petition to determine whether a person is a
  juvenile delinquent.
    (b) When a release is made under this section such  release  may,  but
  need  not,  be  conditioned  upon the giving of a recognizance in accord
  with section seven hundred twenty-four (b) (i).
    (c) If the probation service for any reason does not release  a  child
  under  this  section, the child shall promptly be brought before a judge
  of the court, if practicable, and  section  seven  hundred  twenty-eight
  shall apply.
  
  S 728. Discharge,  release  or  detention by judge after hearing and
  before filing of petition in custody cases.  (a) If a child  in  custody
  is  brought  before  a  judge  of  the family court before a petition is
  filed, the judge shall hold a  hearing  for  the  purpose  of  making  a
  preliminary   determination   of  whether  the  court  appears  to  have
  jurisdiction over the child. At the commencement  of  the  hearing,  the
  judge  shall  advise the child of his or her right to remain silent, his
  or her right to be represented by counsel of his or  her  own  choosing,
  and  of  the right to have an attorney assigned in accord with part four
  of article two of this act. The  judge  must  also  allow  the  child  a
  reasonable  time  to  send  for  his  or  her parents or other person or
  persons legally responsible for his or her care, and  for  counsel,  and
  adjourn the hearing for that purpose.
    (b)  After  hearing, the judge shall order the release of the child to
  the custody of his parent or other person legally  responsible  for  his
  care if the court does not appear to have jurisdiction.
    (c)  An  order  of  release  under  this section may, but need not, be
  conditioned upon the giving of a recognizance in  accord  with  sections
  seven hundred twenty-four (b) (i).
    (d)  Upon  a  finding  of  facts and reasons which support a detention
  order pursuant to this section, the court shall also determine and state
  in any order directing detention:
    (i) that there is no substantial likelihood that the youth and his  or
  her family will continue to benefit from diversion services and that all
  available alternatives to detention have been exhausted; and
    (ii)  whether  continuation  of the child in the child's home would be
  contrary to the best interests of the child based upon, and limited  to,
  the  facts  and  circumstances available to the court at the time of the
  hearing held in accordance with this section; and
    (iii) where appropriate, whether reasonable efforts were made prior to
  the date of the court hearing that resulted in the detention  order,  to
  prevent  or  eliminate the need for removal of the child from his or her
  home or, if the child had been removed from his or her home prior to the
  court appearance pursuant to this section,  where  appropriate,  whether
  reasonable efforts were made to make it possible for the child to safely
  return home; and
    (iv)  whether  the  setting  of  the  detention takes into account the
  proximity to the  community  in  which  the  person  alleged  to  be  or
  adjudicated  as a person in need of supervision lives with such person's
  parents or to which such person will be  discharged,  and  the  existing
  educational  setting of such person and the proximity of such setting to
  the location of the detention setting.
  
  S 729. Duration of detention before filing of petition or hearing. No
  person may be detained under this  article  for  more  than  seventy-two
  hours  or  the  next  day  the court is in session, whichever is sooner,
  without a hearing under section seven hundred twenty-eight.

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