Child removal by ACS
A caseworker may remove a child without a court order only in a real emergency, where the child is immediately threatened with harm and there is no time to go to a judge safely. Where there was time and the worker did not use it, or where the worker got into the home or got the order by misstating facts, the parent has a claim under Section 1983. This page is about the parent's claim for damages. It is not about how to get a child home, which is a Family Court matter and comes first.
Yes, this can be a claim. Child protective workers are government officials acting under color of state law, and the Constitution applies to them as it applies to police. In New York City the agency is the Administration for Children's Services, ACS. A removal without a court order and without a true emergency, or an entry into your home obtained by false statements, can be the basis of a lawsuit for damages against the caseworker and, in some cases, the City.
This page is written for the parent, and it is about the parent's claim. No child is pictured on it. If your child is out of your home today, your first call is to a Family Court lawyer. The civil claim is second in time and should never get in the way of the first.
How it happens
- The removal with no order and no emergency. A caseworker takes a child from home or from school on the strength of a report, with no court order, when nothing was happening that day that could not have waited for a judge.
- The entry by threat. Workers arrive at night with police officers and say they will take the children, or have the parent arrested, unless the door is opened. There is no warrant and no order.
- The application that leaves things out. The worker asks a judge for an order and misstates what was found, or omits the doctor's note, the clean home visit, or the fact that the report came from an angry former partner.
- The child examined or questioned alone. A child is pulled from class, interviewed, or taken for a physical examination, without a parent's knowledge and without a court order.
- The agreement signed under pressure. A parent is told to sign a paper agreeing to a placement or a safety plan on the spot, or the children will be removed tonight.
- The delay in getting to court. After an emergency removal, days pass before any judge reviews it, and the parent is not told where the child is.
The claim
The claim is brought under 42 U.S.C. § 1983. In the Second Circuit, which covers New York, two decisions define it.
The emergency rule
In Tenenbaum v. Williams, 193 F.3d 581 (2d Cir. 1999), the court held that an emergency removal without a court order or parental consent is constitutional only if the child is immediately threatened with harm. Where there was reasonable time to obtain judicial authorization safely, a removal without it is unconstitutional. The question in every case is therefore about the clock on the day of the removal: what the worker knew, when the worker knew it, whether a judge was available, and what would have happened to the child in the hours it would have taken to ask.
The three constitutional theories
In Southerland v. City of New York, 680 F.3d 127 (2d Cir. 2012), the court sorted the claims against a caseworker. A claim for the removal itself, and for an entry into the home obtained through false statements, rests on procedural due process and the Fourth Amendment. A substantive due process claim, the claim that the separation itself was unconstitutional whatever the procedure, requires conduct that shocks the conscience. Most cases are won or lost on the first two.
The Fourth Amendment part draws on ordinary home-entry law. Absent exigency or consent, police may not enter a home without a warrant to make a routine felony arrest (Payton v. New York, 445 U.S. 573 (1980)), and Southerland applies the Fourth Amendment to a caseworker's entry. The Supreme Court has refused to recognize a freestanding "community caretaking" exception for homes (Caniglia v. Strom, 593 U.S. 194 (2021)). An emergency-aid entry needs only an objectively reasonable basis (Case v. Montana, No. 24-624 (U.S. 2026)), which is the ground the defense will claim. Where police officers came along, the home entry page applies to them.
Who the defendants are
The caseworker and the supervisor who approved the removal are sued individually. Each is liable only for his or her own conduct; there is no vicarious liability under Section 1983 (Ashcroft v. Iqbal, 556 U.S. 662 (2009); Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020)). The City is liable where its own policy or custom caused the violation (Monell v. Dep't of Social Servs., 436 U.S. 658 (1978)).
What is not published here
The Family Court Act procedures for removal and for getting a prompt hearing, the rules for New Jersey, Florida and Pennsylvania child welfare agencies, and the way limitation periods run on a child's own claim are not in our verified ledger, so this page does not state them. We also have no published Third or Eleventh Circuit decision on emergency removals in the ledger. Outside New York the constitutional framework is argued from the same principles, and the local case law has to be checked before anything is filed.
What they will argue
It was an emergency
The defense in nearly every case is that the worker reasonably believed the child was in immediate danger. Under Tenenbaum the answer is time: the hours between the report and the removal, the worker's own notes showing the case was treated as routine until the moment of removal, and the availability of a judge.
A judge approved it
Where there was a court order, the defense is the order. The claim then depends on showing the order was obtained by false statements or material omissions, as in Southerland, and that a truthful application would not have supported it.
Qualified immunity
Caseworkers claim qualified immunity as police do: that no clearly established law told a reasonable worker this removal was unlawful (Harlow v. Fitzgerald, 457 U.S. 800 (1982)). Courts may decide that question without ever deciding whether the removal was constitutional (Pearson v. Callahan, 555 U.S. 223 (2009)). The closer the facts are to the Tenenbaum rule, time to go to court and no order sought, the weaker the defense.
You consented
If you opened the door or signed the paper, the defense will call it consent. The answer is what was said to obtain it.
No policy, no City liability
The City will say the worker departed from its written policy, so there is no Monell claim, and that a failure to train claim requires deliberate indifference (City of Canton v. Harris, 489 U.S. 378 (1989)), ordinarily shown by a pattern of similar violations (Connick v. Thompson, 563 U.S. 51 (2011)).
The government had no duty to get it right the other way
One point runs in the opposite direction and explains why agencies act as they do. There is no general due process duty to protect a child from private violence (DeShaney v. Winnebago County, 489 U.S. 189 (1989)). That rule limits claims for failing to remove a child. It does not excuse an unlawful removal.
What people have recovered
No public figure is published here for a child removal case. Our ledger of public recoveries has no verified settlement or verdict of this kind, and we do not print an amount we cannot source. The public settlements page lists the matters we have verified, by state.
Those are other people's cases. What a case is worth depends on the injury, the evidence and the defenses; see what a case is worth. Two rules matter in particular here. Compensatory damages require proof of actual injury, and without it a procedural due process violation supports only nominal damages (Carey v. Piphus, 435 U.S. 247 (1978)). And damages may not be based on the abstract value of a constitutional right (Memphis Community School Dist. v. Stachura, 477 U.S. 299 (1986)). The injury in these cases is the separation and what it did, and it has to be proved with evidence, not assumed.
The clock
The periods below are the parent's. State notice rules do not apply to the federal claim (Felder v. Casey, 487 U.S. 131 (1988)), but a state-law claim against the City of New York needs a notice of claim within 90 days, which will pass while the Family Court case is still open.
| State | Federal Section 1983 claim | State-law claim against a public employer | Authority |
|---|---|---|---|
| New York | Three years | Notice of claim within 90 days; suit within one year and 90 days | Owens v. Okure, 488 U.S. 235 (1989); N.Y. CPLR 214(5); N.Y. Gen. Mun. Law §§ 50-e(1)(a), 50-i(1) |
| New Jersey | Two years, also for the Civil Rights Act claim | Tort Claims Act notice within 90 days; six-month wait; barred after two years. No notice for a Civil Rights Act claim | N.J.S.A. 2A:14-2; 10:6-2; 59:8-8; Owens v. Feigin, 194 N.J. 607 (2008) |
| Florida | Four years | Written claim to the agency within three years; six-month wait; suit within four years | Fla. Stat. §§ 95.11(3), 768.28(6), (14) |
| Pennsylvania | Two years | Written notice to the government unit within six months | 42 Pa.C.S. §§ 5524, 5522(a); Kach v. Hose, 589 F.3d 626 (3d Cir. 2009) |
Where the child welfare agency is a state agency, as it may be outside New York City, remember that a State and its agencies are not "persons" under Section 1983 (Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989)); the claim runs against the individual workers. The New York, New Jersey, Florida and Pennsylvania pages go through each state.
If a parent was arrested in connection with the removal and a criminal charge is pending, talk to your defense lawyer before you describe the arrest to anyone. The same goes for an open Family Court case and your lawyer there. The criminal case and civil case page explains why the order matters.
Home raids and entries
When officials may come through your door without a warrant, and when they may not.
Home entry →Failure to protect
The opposite problem: when the government knew of a danger and did nothing.
Failure to protect →School officials and students
Searches, restraints and discipline at school, and the claims they support.
Schools →Common questions
Can ACS take my child without a court order?
Only in an emergency. Under the Second Circuit's decision in Tenenbaum v. Williams, a removal without a court order or parental consent is constitutional only if the child is immediately threatened with harm. Where there was reasonable time to get judicial authorization safely, removing the child without it is unconstitutional.
The caseworker lied to get into my home. Is that a claim?
It can be. In Southerland v. City of New York the Second Circuit treated claims against a caseworker for a removal, and for an entry into the home obtained through false statements, as resting on procedural due process and the Fourth Amendment. The proof is the application the worker submitted, set beside what the worker actually knew.
My Family Court case is still open. Should I sue now?
Usually not yet, and not without your Family Court lawyer's agreement. The priority is the child's return, and what you say in a civil suit can be used in the Family Court case. But the civil deadlines run in the meantime, and a notice of claim against the City is due within 90 days. Have the two lawyers speak early.
How long do I have?
For the federal claim, three years in New York, two in New Jersey and Pennsylvania, four in Florida. A state-law claim against the City of New York needs a notice of claim within 90 days. How the clock runs on a child's own claim is not published here; ask a lawyer about it directly.
Tell us what happened.
One conversation with an attorney, in your language. We tell you which claims the facts support, which deadline runs first for the agency involved, what evidence to preserve this week, and whether a pending criminal case changes the timing. If it is not a case we can take, we say so and tell you where to go.
(718) 484-7510If a criminal charge is still open, talk to your defense lawyer before you describe the arrest to anyone, including us. English, Russian and Spanish in-house; an interpreter for any other language. Contingency fee, confirmed in writing before we begin.