How To Get Your Children Back In Juvenile or Family Court
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The legal definition of ‘Harm’:
Harm means any injury, loss or damage. It can also be any material or tangible detriment. There are different types of harm like accidental harm-where the injury or damage is not caused by a tortious act; bodily harm-where there is some physical pain, illness, or impairment to the body.
FEDERAL DEFINITION OF CHILD ABUSE AND NEGLECT
Federal legislation provides guidance to States by identifying a minimum set of acts or behaviors that define child abuse and neglect. The Federal Child Abuse Prevention and Treatment Act (CAPTA) (42 U.S.C.A. § 5106g), as amended by the CAPTA Reauthorization Act of 2010, defines child abuse and neglect as, at minimum:
- “Any recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation”; or
- “An act or failure to act which presents an imminent risk of serious harm.”
This definition of child abuse and neglect refers specifically to parents and other caregivers. A “child” under this definition generally means a person who is younger than age 18 or who is not an emancipated minor.
While CAPTA provides definitions for sexual abuse and the special cases of neglect related to withholding or failing to provide medically indicated treatment, it does not provide specific definitions for other types of maltreatment such as physical abuse, neglect, or emotional abuse. While Federal legislation sets minimum standards for States that accept CAPTA funding, each State provides its own definitions of maltreatment within civil and criminal statutes.
Did you notice that Federal law states that in order for the state to take your child/ren…..the harm must have been SERIOUS or the harm coming soon must be SERIOUS. The minimum harm done, or will be done to your child/ren MUST be SERIOUS.
Massachusetts State Definitions of Child Abuse and Neglect
Current Through February 2016
Physical Abuse
‘Abuse’ means the nonaccidental commission of any act by a caregiver upon a child under age 18 that causes or creates a substantial risk of physical or emotional injury, or constitutes a sexual offense under the laws of the Commonwealth, or any sexual contact between a caregiver and a child under the care of that individual.
‘Physical injury’ means:
- Death
- Fracture of a bone, a subdural hematoma, burns, impairment of any organ, and any other such nontrivial injury
- Soft tissue swelling or skin bruising depending upon such factors as the child’s age, circumstances under which the injury occurred, and the number and location of bruises
- Addiction to a drug at birth
- Failure to thrive
Neglect
‘Neglect’ means failure by a caregiver, either deliberately or through negligence or inability, to take those actions necessary to provide a child with minimally adequate food, clothing, shelter, medical care, supervision, emotional stability, and growth, or other essential care.
Sexual Abuse/Exploitation
A ‘child requiring assistance’ is a child between the ages of 6 and 18 who is a sexually exploited child. A ‘sexually exploited child’ is any person younger than age 18 who has been subjected to sexual exploitation because such person:
- Is the victim of the crime of sexual servitude, pursuant to chapter 265, § 50, or is the victim of the crime of sex trafficking, as defined in 22 U.S.C. § 7105
- Engages, agrees to engage, or offers to engage in sexual conduct with another person in return for a fee or in exchange for food, shelter, clothing, education, or care
- Is a victim of the crime, whether or not prosecuted, of inducing a minor into prostitution
- Engages in common night walking or common streetwalking
In regulation: The term ‘abuse’ includes a sexual offense under the laws of the Commonwealth or any sexual contact between a caregiver and a child under the care of that individual.
Emotional Abuse
‘Emotional injury’ means an impairment to or disorder of the intellectual or psychological capacity of a child as evidenced by observable and substantial reduction in the child’s ability to function within a normal range of performance and behavior.
Abandonment
Citation: Ann. Laws Ch. 119, § 39
‘Abandonment’ of an infant under age 10 occurs when:
- A person leaves the child within or without any building.
- A parent or other person who has a legal duty to care for the child, having made a contract for the child’s board or maintenance, absconds or fails to perform such contract, and for 4 weeks after such absconding or breach of contract, if of sufficient physical and mental ability, neglects to visit or remove the child or notify the department of his or her inability to support the child.
Standards for Reporting
Citation: Ann. Laws Ch. 119, § 51A
A report is required when a mandatory reporter, who in his or her professional capacity, has reasonable cause to believe that a child is suffering physical or emotional injury resulting from:
- Abuse inflicted upon the child that causes harm or substantial risk of harm to the child’s health or welfare, including sexual abuse
- Neglect, including malnutrition
- Physical dependence upon an addictive drug at birth
- Being a sexually exploited child
- Being a human trafficking victim
Persons Responsible for the Child
Responsible persons include the parent and any other person responsible for the child’s care.
In regulation: The term ‘caretaker’ [caregiver] means:
- A child’s parent, stepparent, or guardian
- Any household member entrusted with the responsibility for a child’s health or welfare
- Any other person entrusted with the responsibility for a child’s health or welfare, whether in the child’s home, a relative’s home, a school setting, a daycare setting (including babysitting), a foster home, a group care facility, or any other comparable setting
The term ‘caretaker’ includes, but is not limited to, schoolteachers, babysitters, schoolbus drivers, camp counselors, etc.
Exceptions
It is not considered neglect when the inability to care for the child is due solely to inadequate economic resources or solely to the existence of a handicapping condition.
Definitions of Domestic Violence
Current Through August 2017
Defined in Domestic Violence Civil Laws
This issue is not addressed in the statutes reviewed.
Defined in Child Abuse Reporting and Child Protection Laws
This issue is not addressed in the statutes reviewed.
Defined in Criminal Laws
‘Abuse’ means the occurrence of one or more of the following acts between family or household members:
- Attempting to cause or causing physical harm
- Placing another in fear of imminent serious physical harm
- Causing another to engage involuntarily in sexual relations by force, threat, or duress
Persons Included in the Definition
‘Family or household members’ includes persons who:
- Are or were married to one another
- Are or were residing together in the same household
- Are or were related by blood or marriage
- Have a child in common regardless of whether they have ever married or lived together
- Are or have been in a substantive dating or engagement relationship
A substantive dating relationship shall be adjudged by district, probate, or Boston municipal courts in consideration of the following factors:
- The length of time of the relationship
- The type of relationship
- The frequency of interaction between the parties
- If the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship
Child Witnesses to Domestic Violence
Current Through April 2016
Circumstances That Constitute Witnessing
This issue is not addressed in the statutes reviewed.
Consequences
This issue is not addressed in the statutes reviewed.