New York State Law
Family Court Law
Consolidated Laws of NY's FCA code
Part 2 - Article 7 - Family Court
CUSTODY AND DETENTION
| Section | Description |
|---|---|
| 720 | Detention. |
| 723 | Duties of private person before and after taking into custody. |
| 724 | Duties of police officer or peace officer after taking into custody or on delivery by private person. |
| 725 | Summons or warrant on failure to appear. |
| 727 | Rules of court authorizing release before filing of petition. |
| 728 | Discharge, release or detention by judge after hearing and before filing of petition in custody cases. |
| 729 | Duration 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. Top of Page
Index | Article 1 |
Article 2 | Article 3 |
Article 4 | Article 5 |
Article 5A | Article 5B |
Article 6 | Article 7 |
Article 8 | Article 9 |
Article 10 | Article 10A |
Article 10B | Article 10C |
Article 11 | Article 12
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