Family Law Blog

Ultimately, the judge has greater authority to control a CPS lawsuit involving an allegation of abuse or neglect to a child. However, the judge's authority is limited to only address requests and evidence that are present to the Court, so many decisions get made by CPS without the judge even knowing about it.

In the context of a CPS lawsuit, the judge must ultimately determine what is in the "best interest" of the child. Those two words--best interest--are packed with a ton of meaning, which is further explained here. All of the parties to a lawsuit will try to convince the judge about what is in the "best interest" of the child. When the parties agree, the judge's decision is simple. When the parties disagree, the judge gets to ultimately decide, and the judge is not bound by what CPS wants.

But CPS must routinely make decisions without having to resort to obtaining a judge's order. This interplay between CPS and the judge's decision making authority can be complicated, and may be best understand with an example:

Lets say that a child has been removed from the parent's home due to allegations of abuse and neglect. The child was placed in foster care, but the maternal grandparents later come forward and tell CPS that they want to care for the child. CPS has some work to do. CPS has to ask some questions, run some background checks, take a look at the grandparent's home, and follow the other procedures that CPS has for making a placement change. Then, a decision has to be made. At this point in the lawsuit, the children's parents will typically have attorneys and the child will have an attorney ad litem and may also have a guardian ad litem. There may also be parties that have intervened in the CPS suit and now have a "seat at the table" (e.g., the maternal grandparents or the foster parents). If all of the parties agree that the placement change is in the best interest of the child, then CPS will often make the placement change without the judge knowing about it or having to order it. If the parties disagree, or CPS has unmitigated concerns about the child or the grandparents, then the issue of a placement change will likely go in front of the judge and the judge will have to determine whether or not the placement change is in the child's best interest.