Getting Emergency Custody in Virginia

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People often search for "emergency custody" when a child is in danger. In Virginia, there is no court proceeding by that name. What you can actually do depends on your situation. This article explains your options.

If there is abuse or violence in the home

A protective order is your fastest legal tool. You can request one at any time of day or night at your local magistrate's office. You do not have to wait until court hours.

An abuse protective order can:

Order the abuser to stay away from you and your children
Order the abuser to leave your shared home, even if their name is on the lease
Set temporary custody and parenting time for your children while the order is in effect
Order the abuser to pay child support

A protective order is temporary. For a longer-term custody arrangement, you will need to file a custody petition with the Juvenile and Domestic Relations Court. If you can, file your custody petition before your protective order hearing or at least make an appointment to file. Judges will usually want to know you have done this.

If you need a custody decision sooner than the regular process

When you file for custody, you can ask the court to move faster if you need the case heard sooner because of an urgent situation. For example, if one parent is not allowing the other parent access, or moving away with the child. Ask the clerk's office about a motion for an expedited, or emergency, hearing form. The court may use either one of these terms.

If the child is in actual danger, file a petition for a child protective order at the same time as you file your custody petition, and/or call Child Protective Services. A court can order temporary custody in a protective order while the custody hearing is pending. They can also add other conditions to protect the child.

Unlike a family abuse protective order, a court can use a child protective order to allow contact, while still protecting the child by putting conditions on the contact. For example, a child protective order may allow the child to visit the other parent, but require the parent to avoid using any alcohol or drugs during the visit. Or, if the problem is the parent not getting the child to school, it could allow visitation so long as the parent gets the child to school while with them.

The court will only treat your case as an emergency if there is an immediate concern about the child’s custody situation. If there is physical or sexual abuse happening now, file a petition for protective order and/or make a report to Child Protective Services to keep the child safe. Do this before or at the same time as you file the custody petition. If you are asking for an expedited or emergency hearing because the child is unsafe, the court will wonder why you did not seek to protect the child while waiting for the hearing.

Situations that may qualify include:

Physical abuse
A parent not allowing contact with the child
Sexual abuse
Neglect that puts the child's health or safety at serious risk
Abandonment
A parent threatening to take the child out of state to avoid a custody case

Describe why you are asking for a protective order and expedited hearing

The judge needs to understand exactly why this cannot wait. Be specific. Depending on the form, there may or may not be a place to add this information. If the expedited or emergency hearing form does not provide a space to add this information, ask the clerk or Court Services Unit for help, such as an affidavit or addendum.

Write down:

Specific incidents that happened, with dates if possible
Any injuries or physical evidence
Why the danger is still present right now
What you believe will happen if the court does not act

Here is the difference between specific and not specific enough:

Specific enough: The child has visible bruises on their arms and legs. The parent hit them yesterday and threatened to do it again. I am afraid the child will be seriously injured if they go back home tonight.
Not specific enough: The parent is mean to the child and I do not think they are safe.

If a child is in immediate danger right now

If a child is in immediate danger and you cannot safely get them out of the situation, call 911 and/or Child Protective Services (CPS).

Calling 911 will most likely trigger a CPS report. If CPS removes a child from the home in an emergency, they will begin a court case against the parents. The first hearing in a CPS case must happen within 72 hours of the emergency removal. Only CPS can request that kind of hearing.

If CPS removes a child, you can ask DSS to consider placing the child with you. That decision is up to DSS and the judge. It is also a good idea to file a custody petition to show the court that you are committed to caring for the child. In these situations, a custody petition will typically be heard at the same time as the DSS case. If the DSS is not willing to place the child with you, think of close family members or others who could keep the child safe. Consider who might be a good placement option while the case is going through the court process.

If you are a grandparent or other relative

If you are not the child's parent, your options are more limited.

You can file a custody petition and ask for an expedited hearing, but this does not mean you will see a judge immediately.

If the child is in immediate danger and you cannot safely remove them, call 911 and CPS. If court staff hear that a child is in danger, they will make a report to CPS.

Do I need a lawyer?

For custody cases, the court will not appoint a lawyer even if you cannot afford one. Getting legal advice before you go to court is worth the effort. You may be able to get some free or low-cost legal help, but most people who cannot afford to pay for a lawyer must go to court on their own. In most Juvenile and Domestic Relations Court cases, the parties do not have a lawyer.

Where can I get free or low-cost help?

Find your local legal aid office: virginialawhelp.org/get-legal-help or call 866-534-5243.
Ask a lawyer a question online for free: virginia.freelegalanswers.org.
Get a low-cost lawyer consultation for $35: vsb.org/Site/legal-help.
If the situation involves abuse, call the Virginia domestic and sexual violence hotline: 800-838-8238.

Things to remember

There is no separate court case in Virginia called "emergency custody." Your options depend on your situation.
If there is abuse by a family or household member, a protective order is your fastest legal tool. It can address temporary custody and can be requested at any hour of the day or night.
If you need a custody case heard faster, ask the clerk's office about a motion for an emergency hearing. The court will only treat it as an emergency if the child is in immediate danger.
If a child is in immediate danger right now, call 911 and/or CPS. Do not wait for a court.
If you are not the child's parent, your options are more limited. If the child is in immediate danger and you cannot safely remove them, call 911 and/or CPS.
Bring any evidence you have to any hearing, even if it is not complete.