Section 728 - Discharge, release or pre-dispositional placement 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 pre-dispositional placement order pursuant to this section, the court shall also determine and state in any order directing predispositional placement: (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 such placement 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 pre-dispositional placement 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.N.Y. Family Court Law § 728
Amended by New York Laws 2019, ch. 56,Sec. K-5, eff. 1/1/2020.