This bench brief concerns an appeal of a family court case involving allegations of child neglect. The Department of Child Protective Services removed a boy, Liam, from his mother's custody after learning he had witnessed domestic violence by his mother's boyfriend. On appeal, the court must determine whether exposing a child to domestic violence constitutes neglect under New York law, and whether immediate removal was necessary to protect Liam. The brief provides background on the case, summarizes the parties' arguments regarding neglect and removal, and reproduces relevant statutes.

1. The Twenty-Sixth Annual
DOMENICK L. GABRIELLI
NATIONAL FAMILY LAW
MOOT COURT COMPETITION
BENCH BRIEF
Prepared By:
Kathleen M. Rivers, Competition Chair
Faculty Advisor:
Professor Evelyn M. Tenenbaum

2.
New Scotland County Clerk’s Index No. 0612-14
STATE OF NEW SCOTLAND
NEW SCOTLAND COUNTY DEPARTMENT OF CHILD PROTECTIVE SERVICES,
Respondent-Appellant,
—against—
KIMBERLY M.,
Petitioner-Appellee.
BENCH BRIEF

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TABLE OF CONTENTS
FOREWORD ……………………………………………………………………………………. 1
ISSUES ON APPEAL…………………………………………………………………………… 1
PROCEDURAL POSTURE ...………………………...………………………………………… 1
FACTUAL BACKGROUND …………………………………………………………………… 3
SUMMARY OF THE ARGUMENTS……………………………………………………………8
ISSUE ONE: NEGLIGENCE…………………………………………………………………. 8
Summary of Petitioner-Appellee’s Argument……………………………………. 9
Summary of Respondent-Appellant’s Argument………………………………... 11
ISSUE TWO: REMOVAL…………………………………………………………………... 12
Summary of Petitioner-Appellee’s Argument……………………………….….. 14
Summary of Respondent-Appellant’s Argument………………………………... 15
STATUTES……………………………………………………………………………………... 17
NEW SCOTLAND FAMILY COURT ACT § 1010 ………………………………………… 17
NEW SCOTLAND FAMILY COURT ACT § 1017 ………………………………………… 17

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I. FOREWARD
The events and legal proceedings depicted in the 2014 Gabrielli Family Law Bench Brief
and Problem take place in the fictional State of New Scotland, located in the territorial United
States of America.
The State of New Scotland has a three-tiered judicial system. The “Family Court” is the
trial court, the “Third Appellate Division” is the first level of appellate review, and the “New
Scotland Court of Appeals” is the highest court. Under New Scotland R. Civ. P. 10(b), the
parties can appeal as of right to the New Scotland Court of Appeals from a final or nonfinal
decision, if the Third Appellate Division certifies the questions to be heard on appeal.
II. ISSUES ON APPEAL
1. Whether the State of New Scotland, Third Appellate Division, correctly determined that
Petitioner-Appellee had not neglected her child under the terms of the New Scotland Family
Court Act by allowing him to be exposed to domestic abuse on a continuing basis.
2. Whether the State of New Scotland, Third Appellate Division, correctly determined that a
preliminary order of removal was not necessary to avoid imminent danger to the child’s life
and health.
III. PROCEDURAL POSTURE
This case comes to the New Scotland Court of Appeals from a decision of the Third
Appellate Division, reversing an order of the New Scotland Family Court.
On January 28, 2014, Respondent-Appellant, New Scotland County Department of Child
Protective Services (CPS), petitioned the New Scotland Family Court for an ex parte order to
remove a child from the custody of Kimberly M. on the ground that she had neglected her child
by allowing him to witness domestic violence. The petition was granted and the child was taken

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into CPS custody. This proceeding was commenced when Petitioner-Appellee, Kimberly M.,
made an application to the New Scotland Family Court for the return of her son, pending a final
order of disposition of the case.
A preliminary hearing was held and the Family Court ruled in favor of CPS. The court
awarded custody of the child to CPS for the purpose of finding him an appropriate placement
until a full hearing could be held to determine the permanent disposition of the case. The Family
Court reasoned that the emotional impact of being exposed to domestic violence against a parent
and the possibility of actual physical harm were sufficient to constitute neglect and warranted the
immediate removal of the child from his home. Kimberly M. appealed the order to the New
Scotland, Third Appellate Division.
The Appellate Division reversed the lower court decision and held that the Family Court
incorrectly construed New Scotland’s neglect statute to include allowing the child to witness
domestic violence. The Appellate Division held that merely exposing a child to domestic
violence did not constitute a failure to exercise a “minimum degree of care.” The Appellate
Division further found that adopting a policy of removing children from battered mothers would
create a disincentive for the mothers to report domestic violence. The Appellate Division also
held that the harm—if any—posed to the child as a result of being exposed to domestic violence
did not rise to the level necessary to warrant emergency removal from his mother’s custody. The
court found that there was no concrete evidence that the child was at risk of immediate physical
harm and that potential emotional injury does not rise to the level of an emergency.
CPS appealed to the New Scotland Court of Appeals. Two questions were certified for
appeal: (1) whether Appellee had neglected her child by allowing him to be exposed to domestic
abuse on a continuing basis; and (2) whether immediate removal was necessary to avoid
imminent danger to the child’s life and health.

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IV. FACTUAL BACKGROUND
Kimberly M. raised her now thirteen-year-old son, Liam, as a single mother. Kimberly
has a high school education and worked at various jobs in the service industry until three years
ago when she was hired as a teller by the Bank of New Scotland. It was at the bank that
Kimberly met and soon began dating James K., a senior wealth management analyst.
At first, James seemed to be an ideal boyfriend. Kimberly believed that James truly
cared for her and wanted what was best for both her and her son. However, not long after the
start of the relationship, James began to take control of her finances and pushed for the
relationship to progress rapidly. The couple had been dating for only four months when James
successfully pressured Kimberly into moving in with him.
The move came just before the start of a new school year. At James’s insistence, and
with his financial backing, Liam was enrolled in the fifth grade at Omnis Preparatory Academy.
Kimberly was worried that it might be hard for Liam to make the adjustment from the public
elementary school he had attended since Kindergarten, but she was excited about the doors that
Omnis Prep might be able to open for her son.
Liam had always excelled socially in school, but he lagged behind the other children
academically. He has a mild form of dyslexia and was held back in the third grade. Kimberly
met with Liam’s teachers regularly and worked with Liam on his reading and math as much as
possible. However, as the months progressed, Liam’s scores did not improve. Kimberly
advocated for her son as much as she could but was repeatedly told that the school was stretched
too thin to provide Liam with the attention that she felt he needed.
In addition to her focus on Liam’s education, Kimberly also made sure that Liam was
involved in the youth athletic programs offered by the Recreation and Parks Department. From

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Liam’s first game of kindergarten soccer to his last game of youth lacrosse, Kimberly only
missed one game and she had another parent tape that game for her.
When Liam started at Omnis Prep, he was one grade level behind in both English and
math. With the help of math and literacy specialists, Liam was able to close that gap. Liam
testified that the specialists at Omnis Prep “taught [him] how to learn.” With his new tool set,
Liam was more confident about school than ever before. Last semester, for the first time, Liam
made the honor roll. Liam is also the star of the school’s basketball team, an editor of the
yearbook, and the Vice President of his seventh grade class.
On November 12, 2013, one of Liam’s teachers, Mr. Holiday, overheard Liam speaking
to another student in the cafeteria during lunch. Liam was telling a classmate about a recent fight
between his mother and her boyfriend. Later, Mr. Holiday asked Liam how things were going at
home, but Liam turned the conversation to two violent video games he was interested in.
Over the next few weeks, Liam visited with Mr. Holiday regularly. Their conversations
were innocuous until December 16, 2013, when Liam admitted to Mr. Holiday that James was
physically abusing his mother. Liam explained that the fights often centered on James’s jealousy
or control of Kimberly’s finances. In the past, Liam blocked out the fights, but recently they had
been escalating and he noticed that his mother had bruises.
Immediately after Mr. Holiday finished his conversation with Liam, he notified Mr.
Peeples, the school’s guidance counselor. Together, Mr. Peeples and Mr. Holiday contacted the
New Scotland Office of Children and Family Services (OCFS).
After an initial screening, OCFS referred Liam’s case to Child Protective Services (CPS),
the local agency charged with investigating reports of child abuse or neglect. A caseworker,
Laura Lowther, was assigned. She interviewed Liam, his mother, and family friend Christina G.
When Kimberly was interviewed, she refused to acknowledge any problems beyond the typical

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ups and downs of any relationship. Mrs. Lowther attempted to explain the severity of the
situation to Kimberly. She explained the negative impact that witnessing domestic violence can
have on a child as well as the possibility that Liam could be removed from her home. Kimberly
said she fully understood and that there was no way she would expose Liam to anything that
would harm him. She repeatedly referenced her involvement at Liam’s school and his academic
and social success as evidence that nothing was wrong.
When Christina was interviewed, she told Mrs. Lowther that in many ways James seemed
to be the perfect partner. Occasionally Kimberly had hinted at problems at home, but she would
always add that there were still moments when James would be as kind to her as when they first
met. Kimberly blamed herself and believed that if she simply tried hard enough to make James
happy, she could solve all of their problems.
Mrs. Lowther visited Liam’s home on three occasions between mid-December and the
end of January. During Mrs. Lowther’s first visit, Liam verified everything Mr. Holiday had
said as true. He also admitted the situation at home had been getting worse. In an effort to
protect his mother, Liam had begun putting himself between James and her during their fights.
James never attempted to hurt Liam. As soon as Liam intervened, James would stop. Liam
expressed pride at being able to protect his mother, but he also expressed guilt over the nights
when he could not get there in time to protect her. Liam was also worried about whether he
would continue to avoid physical contact with James during these episodes. Additionally, Liam
admitted that he had recently begun having nightmares. He told Mrs. Lowther that the
nightmares were generally about family or friends being violently injured—sometimes his loved
ones were injured in car crashes, other times they were victims of a military-style attack, and
occasionally they were being chased by something they could not escape from.

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After this conversation with Liam, Mrs. Lowther spoke to Kimberly. Mrs. Lowther again
explained the severity of the situation. She begged Kimberly to leave James and file for an order
of protection. Again, Kimberly denied there were any problems at home.
On her second visit, Mrs. Lowther noticed Liam biting his fingernails almost to the point
that they were bleeding. On her third visit, Mrs. Lowther observed a bruise on the side of Liam’s
face. When questioned about it, Liam explained that he had recently gotten into a fight with a
fellow student at school. Liam claimed he had punched a teammate in the locker room after the
teammate accused Liam of being the reason they lost a recent game. Liam said he had never
gotten into a fight before. He had no idea what came over him. He simply snapped. Mrs.
Lowther later confirmed the validity of his statements with the school.
On the morning of January 27, 2014, OCFS received new information on Liam’s case
from a New Scotland police officer named Sara Rolls. Officer Rolls had been called to New
Scotland Memorial Hospital to check on a patient whom the nurses had flagged as a potential
victim of domestic violence. The patient was Kimberly. She had been admitted to the
emergency room around 11:00 AM.
Upon her arrival, Officer Rolls spoke to Dr. Brynne Grady, Kimberly’s treating
physician. Dr. Grady diagnosed Kimberly as having two cracked ribs and a fractured ulna (one
of the bones in her forearm). Dr. Grady also read Kimberly’s medical file, which revealed that
during the last year, Kimberly had been treated for a mild concussion, a sprained wrist, and a
subconjunctival hemorrhage. (A subconjunctival hemorrhage occurs when a blood vessel breaks
underneath the clear surface of the eye.) The file also indicated that during Kimberly’s last
annual exam, her OB/GYN observed the unexplained presence of bruising on Kimberly’s upper
arms. Dr. Grady had received substantial training on how to identify victims of intimate partner
violence in an emergency room setting. While Dr. Grady did not consider any one item in

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Kimberly’s file to be definitive proof, her situation taken as a whole created a clear picture of
domestic violence.
Kimberly had been taken to the hospital by James. He refused to leave Kimberly’s side
and attempted to answer all of the hospital staff’s questions. Both James and Kimberly claimed
that her injuries were the result of her unfortunate lack of balance. James was very protective of
Kimberly in the hospital and did not want to leave her side. When Officer Rolls finally managed
to speak to Kimberly in private, she told Kimberly to consider an order of protection. Kimberly
explained that leaving James was not an option for financial reasons. She was adamant about not
wanting Liam to suffer because “[she is] a failure.” Kimberly told Officer Rolls: “Liam has the
chance to live a life I never could have dreamed of for him. I don’t want Liam to suffer because
of my failings. I know that if I try just a little harder, I can make James happy again.”
After speaking to Officer Rolls, CPS felt Liam’s situation was sufficiently dire to warrant
immediate removal from his home. CPS was granted an ex parte order for removal that same
day. Kimberly then petitioned the court for the return of her son pending a final order of
disposition of the case. A preliminary hearing was held to decide the matter. During the
hearing, CPS elicited the testimony of Dr. Jayne Purtill, an expert in the field of developmental
psychology. Dr. Purtill’s testimony focused on the risks associated with exposing children to
domestic violence, including: (1) an increased likelihood that the child will also be abused by the
partner; (2) diminished behavioral and emotional functioning; (3) posttraumatic stress disorder;
(4) adolescent males witnessing the abuse of a caregiver are more likely to use violence than
adolescent males who do not witness such abuse; (5) the long-term effects of depression, trauma
disorder, and low self-esteem; and (6) evidence that male batterers are much more likely to have
grown up in a home with intimate partner violence than men who do not commit domestic
violence.

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V. Summary of the Arguments
Issue 1: Whether the State of New Scotland, Third Appellate Division, correctly
determined that under the New Scotland Family Court Act, Petitioner had not
neglected her child by allowing him to be exposed to domestic abuse on a
continuing basis.
The first issue the Court must decide is whether Liam was neglected under section 1010
of the New Scotland Family Court Act. No court in the State of New Scotland has ever been
asked to determine whether a child can be considered neglected solely on the basis of continued
exposure to domestic violence against his or her caregiver.
In New Scotland, a party seeking to establish neglect of a child must establish by a
preponderance of the evidence that: (1) a child’s “physical, mental, or emotional condition has
been impaired or is in imminent danger of becoming impaired;” and (2) the harm established
under the first prong is a “a result of the failure of his parent or other person legally responsible
for his care to exercise a minimum degree of care toward the child.”
The first prong of this statute reflects the State of New Scotland’s respect for the rights of
parents to raise their children without government interference. The second prong adds the
requirement of causation. It is not enough for the child simply to suffer harm. For a finding of
neglect, there must be a connection between the harm suffered and the caregiver’s failure to
exercise a minimum degree of care.
The statute lists several examples of parental conduct that can constitute a failure to
exercise a minimum degree of care, including “excessive corporal punishment” and “misusing a
drug or drugs.” In addition to the enumerated examples, the statute provides for a finding of
neglect based on “any other acts of a similarly situated nature requiring the aid of the court.”
The crux of this issue is whether exposing a child to continuing instances of domestic
violence can constitute a failure to exercise a minimum degree of care.

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SUMMARY OF PETITIONER-APPELLEE’S ARGUMENT (NEGLECT)
• Kimberly did not fail to provide a minimum degree of care.
o The test in this case is not whether Kimberly provides ideal care for Liam; it is
whether she provides a minimum degree of care. Kimberly goes well beyond
meeting that burden.
o Kimberly is a devoted mother. She was heavily involved in Liam’s education in
elementary school. Despite being a working mother, she only missed one of his
youth sports games. The record is clear that Kimberly’s intention is to provide
Liam with the best life possible.
o It is not Kimberly’s actions that led to this proceeding being brought against her,
but her status as a victim of domestic violence.
o Furthermore, the court should look at whether Kimberly acted in a reasonable and
prudent manner given her status as an abused mother. The court must consider
such factors as the power the cycle of violence can have over domestic violence
victims and risks associated with leaving James.
• Even if the Court were to find that Kimberly breached the minimum standard of
care, there is still no causal connection between the alleged breach and the alleged
harm.
o James never physically hurt Liam or even threatened to do so.
o All of Liam’s “symptoms” can also be explained by his recent and regular
exposure to violent video games and movies.
o It would be unfair and a dangerous precedent to find that Liam was at risk of
physical harm based solely on the fact that some studies have shown a link
between men who batter their partners and men abusing children.
o Not all children exposed to domestic violence experience emotional impairment.
A finding of causation should not be based on mere speculation that Liam has
been, or will be, negatively impacted by witnessing domestic violence.

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• Finding neglect where the mother is a victim of domestic violence is bad public
policy.
o Finding neglect on the grounds that Kimberly is a victim of domestic violence
would discourage women from seeking help due to fear that their children could
be taken away from them.
o Any such policy would be the equivalent of punishing victims for being
victimized.
SELECTED RELEVANT CASELAW
1
• Nicholson v. Scoppetta, 820 N.E.2d 840 (N.Y. 2004), finding that exposing a child to
domestic violence cannot be the sole ground for a finding of neglect. The court
emphasized the importance of considering such factors as the risks attendant to leaving
an abusive spouse when analyzing whether a battered mother exercised a minimum
degree of care.
• Villanueva v. City of New York, No. 08 Civ. 8793, 2010 WL 1654162 (S.D.N.Y. Apr.
14, 2010), distinguishing its own finding of neglect from the facts of Nicholson v.
Scoppetta on the grounds that in addition to allowing the child to witness domestic
violence against her, the mother had: (1) mental health issues, (2) abandoned her
children, and (3) failed to protect her children from sexual abuse.
• In re Hofbauer, 393 N.E.2d 1009 (N.Y. 1979), emphasizing that in analyzing whether a
parent breached his or her minimum duty of care, the operative word is minimum—“not
maximum, not best, not ideal.”
• In re Jessica YY, 685 N.Y.S.2d 489 (App. Div. 3d Dep’t 1999), holding that parental
behavior should be analyzed objectively to determine how a reasonable and prudent
parent would have acted.
1
Cases in bold were cited in the competition problem.

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SUMMARY OF RESPONDENT-APPELLANT’S ARGUMENT (NEGLECT)
• Kimberly has failed to exercise a minimum degree of care in providing for Liam.
o By regularly allowing Liam to be exposed to domestic violence to the point that
he feels the need to directly and physically involve himself in the situation,
Kimberly has failed to act as a reasonable and prudent parent.
o While there may be risks associated with leaving an abusive partner, there is no
evidence in the record that indicates James has ever threatened to harm Kimberly
and Liam if they move out of the house.
o Kimberly has never taken any steps to limit Liam’s exposure to the violence. She
has never pressed charges or filed for an order of protection. Even when
organizations such as CPS have reached out to her offering assistance, she has
patently refused the help.
• Kimberly’s failure to protect her son from exposure to domestic violence has placed
Liam in imminent danger of harm.
o The physical danger posed to Liam by an escalating abuser as well as the
emotional harm Liam has already suffered is a direct result of Kimberly exposing
Liam to her violent relationship with James.
o Liam feels it is his responsibility to protect his mother from James’ wrath. He
feels guilty on the nights he cannot get home in time to protect her. That is a
burden no middle school child should ever have to bear. It is this burden that is
causing Liam to have symptoms consistent with a traumatic stress disorder.
SELECTED RELEVANT CASELAW
• In re Carlos M., 741 N.Y.S.2d 82 (App. Div. 2002), holding a child had been neglected
as a result of: (1) regularly witnessing severe domestic violence between his parents; and
(2) the violence being of such a nature that it regularly required the intervention of the
child.
• In re Lonell J., 673 N.Y.S.2d 116 (N.Y. App. Div. 1998), directly equating exposing a
child to domestic violence with drug or alcohol abuse by a parent. The court relied on

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evidence of the physical and mental effects of repeated spousal abuse on children to find
that repeated abuse observed by the children was sufficient to constitute neglect.
• In re A.D.R, 542 N.E.2d 487 (Ill. App. Ct. 1989), affirming the lower court’s finding of
parental neglect on the grounds that exposing a child to domestic violence over an
extended period of time was sufficient to establish the environment was injurious to her
welfare. “It is not unreasonable for a trial judge to conclude continuing physical abuse by
one parent to another will cause emotional damage to a child and thus constitute neglect .
. . . . The court need not wait until [the child] herself becomes the victim of physical
abuse nor wait until the repeated beatings of her mother cause so much emotional damage
that the child is permanently affected.”
• In re. Heather A., 60 Cal. Rptr. 2d (Ct. App. 1996), finding parental neglect on the
grounds that the children’s father had abused their stepmother on several occasions,
including five instances during which the children were present in the home. One such
instance involved one of the children attempting to get her father off her stepmother
whom he was continuing to beat after knocking to the floor. The court found the children
were subject to “secondary abuse” as a result of being in such an environment.
Issue 2: Whether the State of New Scotland, Third Appellate Division, correctly
determined that a preliminary order of removal was not necessary to avoid imminent
danger to the child’s life and health.
It is well-established that parents have a constitutionally protected liberty interest in the
care and custody of their children. However, this right is not absolute. While parents are
generally entitled to a full court proceeding before a child can be removed from their custody,
legislatures and the courts have carved out an exception in the case of an emergency.
New Scotland’s Family Court Act provides for three methods of removal. The first
option available to CPS is to remove the child without a court order. To justify this option, CPS
must find that an emergency situation exists and there is insufficient time to seek even an ex

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parte order of removal. The second option is to seek an ex parte order of removal. To exercise
this option, CPS must show that an emergency exists and that leaving the child in the custody of
his or her parent pending a final order of disposition of the case creates an imminent danger of
harm to the child. The third option is to delay removal until a final order of disposition is made
after a full hearing.
Each of these three options comes with a different standard for determining whether it is
an appropriate response to a legitimately perceived injury. The lower the procedural protections,
the higher the bar for determining that removal of the child is necessary. In the present case,
CPS pursued the second option for removal—an ex parte hearing. In order to be granted an ex
parte order of removal, the petitioner must demonstrate two things: (i) the child appears to suffer
from the abuse or neglect of his or her parent or other person legally responsible for his or her
care and his or her immediate removal is necessary to avoid imminent danger to the child's life or
health; and (ii) there is not enough time to file a petition and hold a full hearing.
If an ex parte order is granted by the court, the parent can petition for return of the child.
Once a petition is filed by the parent, the court must hold a preliminary hearing. The purpose of
the preliminary hearing is to determine whether continued removal is necessary to protect the
child until a final order of disposition can be issued.
For a child to be removed without a full hearing, the child must be in imminent danger.
The mere possibility of danger is not sufficient. In determining whether removal was proper,
courts generally focus on assessing whether the removal was “an appropriate response to a
legitimately perceived emergency.”
For this issue, the two key questions are: (1) whether Liam was in imminent danger of
physical harm: and (2) whether emotional harm can constitute a serious and immediate danger
warranting immediate removal.

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SUMMARY OF PETITIONER-APPELLEE’S ARGUMENT (REMOVAL)
• Emergency removal was not warranted because Liam was not in immediate
physical danger.
o In general, parents are entitled to a full court proceeding before a child can be
removed from their custody. This is a constitutionally protected right and courts
should not grant removal without clear and convincing evidence of immediate
harm.
o The danger of physical harm to Liam is pure speculation. James has never
threatened Liam in any way. Whenever Liam has stepped in to defend his
mother, James has immediately stopped his abuse of Liam’s mother.
• Emergency removal is not warranted when the danger in question is the child’s
emotional health.
o Emergency removal is a drastic remedy with emotional and psychological
repercussions. Even if the Court finds that Liam was at risk of emotional harm,
that finding would not indicate that an emergency exists requiring that he be
immediately removed from his home.
o Possible emotional injury to Liam is merely speculative.
SELECTED RELEVANT CASELAW
• Nicholson v. Scoppetta, 344 F.3d 154 (2nd Cir. 2003), distinguishing between emotional
and physical harm for the purpose of emergency removal. The court did not directly
reach the issue, but commented that unlike the possibility of physical injury, there is no
clear precedent for emergency removal based on emotional harm.
• Nicholson v. Scoppetta, 820 N.E.2d 840 (N.Y. 2004), finding that not all children who
witness domestic violence experience emotional or physical harm.
• Tenenbaum v. Williams, 193 F.3d 581 (2nd Cir. 1999), holding that the mere possibility
of danger is insufficient to warrant emergency removal.
• Smith v. Org. of Foster Families for Equality & Reform, 431 U.S. 816 (1977), stating
that children have a constitutionally protected interest in not being removed from the
“emotional attachments that derive from the intimacy of daily [family] association.”

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SUMMARY OF RESPONDENT-APPELLANT’S ARGUMENT (REMOVAL)
• Liam’s removal was proper because it was an appropriate response to a legitimately
perceived threat.
o Numerous studies have shown that children exposed to domestic violence against
a caregiver can experience serious physical and psychological repercussions.
o The record establishes that James has a history of controlling and abusive
behavior. Recently, James’s behavior has been escalating to the point that
Kimberly has been hospitalized and Liam feels the need to put himself at risk to
protect her.
o Liam has been exhibiting the symptoms of a child traumatized by exposure to
domestic violence. He has been having nightmares, is biting his nails to the point
that they are bleeding, and recently got into a fight at school.
o Liam feels it is his responsibility to protect his mother from James’s wrath. He
feels guilty on the nights he cannot get to her in time.
o Dr. Purtill testified at the preliminary hearing that when a woman is a victim of
intimate partner violence, her children are twice as likely to be abused by her
partner than the children of a woman who is not a victim.
o This is not a case in which removal was based solely on the fact that domestic
violence occurred in the household. Not only does Liam appear to be
experiencing actual emotional harm, but he is so negatively impacted that he feels
he has no other choice than to put himself between his mother and her abuser.
• The State’s interest in protecting children from harm allows for removal in cases
where children witness domestic violence.
o The fundamental right to parent must be balanced against the State’s interest in
protecting the physical and mental wellbeing of children.
o Here, Kimberly has failed to act in Liam’s best interests by remaining with James.
o While Liam has done well at Ominus Preparatory Academy, his recent behavior
indicates that he is suffering emotional harm, which may adversely affect his
ability to continue to perform well at school.

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SELECTED RELEVANT CASELAW
• Doe v. Whelan, 732 F.3d 151 (2d Cir. 2013), finding that state employees’ actions were
objectively reasonable when they removed children from their home without a court
order on the grounds that: (1) there was a history of domestic violence between the
children’s mother and her boyfriend; (2) the mother failed to remove the boyfriend from
her children’s lives, and (3) the mother had refused to comply with social services’
proposed solution of an order of protection.
• Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), holding that while parents do
have a constitutionally protected liberty interest in raising their children, the state’s
“profound interest in the welfare of the child” allows for removal with less procedural
protections in emergency situations.
• Stanley v. Illinois, 405 U.S. 645, 652 (1972), stating that the fundamental right to raise a
family without government interference is not absolute. A state has the right to protect
the mental and physical well-being of a child by removing him or her from a neglectful
parent.
• In re Sampson, 323 N.Y.S.2d 253 (App. Div. 3d Dep’t 1971), a medical neglect case in
which the court determined that it is not necessary for a child’s life to be in danger before
the court acts to safeguard his health or general welfare. The court rejected the argument
that state intervention is only permissible when the child’s life is endangered, finding
instead that a child has the right to lead a normal life.

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NEW SCOTLAND FAMILY COURT ACT
ARTICLE 10
CHILD PROTECTIVE PROCEEDINGS
§ 1010. Definition of Neglect
“Neglected child” means a child less than eighteen years of age whose physical, mental, or
emotional condition has been impaired or is in imminent danger of becoming impaired as a
result of the failure of his parent or other person legally responsible for his care to exercise a
minimum degree of care in providing the child with proper supervision or guardianship, by
unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including
the infliction of excessive corporal punishment, or by misusing a drug or drugs, by misusing
alcoholic beverages to the extent that he loses self-control of his actions, or by any other acts of
a similarly serious nature requiring the aid of the court.
§ 1017. Temporary Removal Orders
(a) The family court may enter an ex parte order directing the temporary removal of a child from
the place where he or she is residing before the filing of a petition under this article, if
(i) the child appears so to suffer from the abuse or neglect of his or her parent or other
person legally responsible for his or her care that his or her immediate removal is
necessary to avoid imminent danger to the child's life or health; and
(ii) there is not enough time to file a petition and hold a full hearing.
(b) When a child has been removed pursuant to this section, the parent may file a petition for the
return of his or her child and the court shall hold a preliminary hearing within a week after
the petition has been filed to determine whether removal of the child should continue pending
final disposition of the case. To continue the temporary order of removal, the court must find
that removal pending a full hearing is necessary to avoid imminent danger to the child’s life
or health.