Legal Issues : Protective Custody
It may be necessary for a hospital to take protective custody of a child for their wellbeing. If a healthcare professional has reasonable cause to believe that there is imminent danger to a child’s life or health if they remain in their current place of residence and under the custody and authority of a parent or person responsible for their care, they must notify the police or local child protective services immediately. This responsibility is irrespective of whether additional medical treatment is needed.
The following information is for general informational purposes only and applies to situations regarding protective custody in New York State. For advice on specific legal issues, we recommend consulting with an appropriate professional, such as a social worker, case manager, hospital risk management personnel, child protective worker, law enforcement, court appointed advocates, family or juvenile court, or other legal authority. A hospital administrator, legal team and risk management should be consulted to help determine if the hospital will take protective custody.
The following information about protective custody in New York State is outlined in Social Services Law §417(1)(b): https://codes.findlaw.com/ny/social-services-law/sos-sect-417/.
Who Takes Protective Custody in New York State
In New York State, a limited number of mandated reporters are authorized to take a child into protective custody in order to protect the child from imminent danger. A private physician does not have the authority to take protective custody of a child whom they are treating. A medical professional treating a child believed to be in imminent danger must notify child protective authorities or the appropriate law enforcement authorities. If a child suspected of being abused or maltreated is brought to a hospital, the hospital-based medical professional who believes the child would be in imminent danger if returned to the care and custody of the parent or guardian can request the child be placed in temporary protective custody at the hospital (Pirotte 2017). A hospital administrator is required to take the “necessary measures” to protect the child, which may include retaining custody. If you are on staff at a hospital, inform a hospital administrator that you believe the child is in imminent danger. The hospital administrator then becomes responsible for retaining custody until the child is discharged. Procedures for removals are described in the 2025 NYS CPS Manual, Chapter 2: https://ocfs.ny.gov/programs/cps/manual/.
Any person or institution acting in good faith in detaining a child to keep them safe, has immunity from civil or criminal liability: New York Family Court Act §1024(c) https://codes.findlaw.com/ny/social-services-law/sos-sect-419/.
Laws regarding temporary protective custody in hospital settings vary by state and should be reviewed for specific conditions and steps taken in your region.
Consent to Treat
The local Commissioner of Social Services or the local Commissioner of Health may provide consent for urgent medical, dental, health and hospital services for any child who is in protective custody: Social Services Law §383-b https://codes.findlaw.com/ny/social-services-law/sos-sect-383-b/.
Notification
Hospitals that retain children in protective custody must inform the child's parent or caretaker and immediately make an oral report to the State Central Register explicitly stating that the hospital is taking protective custody and the reasons for the action. In New York State, written notification to the authorities must occur within 48 hours: Social Services Law §415 https://codes.findlaw.com/ny/social-services-law/sos-sect-415/.
