Virginia Emergency Custody Motion

Introduction

Key Things to Know

1. 1

   If your child is in immediate danger, call 911 now. A court filing takes time and cannot replace emergency help.

2. 2

   Virginia has no separate emergency custody motion. The ex parte route is a preliminary protective order for a child under Va. Code 16.1-253(B), which may be issued on motion of any person in a matter before the court, or on petition.

3. 3

   The court must have an affidavit or sworn testimony establishing that the child would be subjected to an imminent threat to life or health, such that delay for an adversary hearing would likely cause serious or irremediable injury. The court decides whether that is met, and no order is guaranteed.

4. 4

   An ex parte order may issue without prior notice. After it issues, notice of the hearing must be given at least 24 hours in advance to the guardian ad litem, the parents, the guardian or legal custodian, other affected family or household members, and the child if 12 or older, stating the time, date, place and factual circumstances.

5. 5

   The adversary hearing must be held within the shortest practicable time, not to exceed five business days after the ex parte order issues. For a family abuse preliminary protective order under 16.1-253.1, the full hearing is within 15 days of issuance.

6. 6

   If the child is present in Virginia, temporary emergency jurisdiction exists under Va. Code 20-146.15 when the child is abandoned or emergency protection is necessary because the child, a sibling or a parent is subjected to, or placed in reasonable apprehension of, mistreatment or abuse.

7. 7

   The Juvenile and Domestic Relations District Court has jurisdiction over custody and visitation (16.1-241(A)), concurrent with circuit court. Ask the clerk about the correct locality, current forms and any fee.

Virginia Requirements for Emergency Custody Motion

• Ex Parte Child Protective Order

  A preliminary protective order may be issued ex parte on motion of any person or the court's own motion in any matter before the court, or upon petition (Va. Code 16.1-253(B)).

• Imminent Threat Standard

  An affidavit or sworn testimony must establish that the child would be subjected to an imminent threat to life or health, such that delay for an adversary hearing would likely cause serious or irremediable injury (Va. Code 16.1-253).

• 24 Hours Notice of the Hearing

  After an ex parte order issues, notice of the hearing must be given at least 24 hours in advance, stating the time, date, place and factual circumstances (Va. Code 16.1-253).

• Hearing Within Five Business Days

  The adversary hearing must be held within the shortest practicable time, not to exceed five business days after the ex parte order issues (Va. Code 16.1-253(B)).

• Temporary Emergency Jurisdiction

  A Virginia court may act in an emergency if the child is present in the state and abandoned, or needs protection because the child, a sibling or a parent is subjected to, or in reasonable apprehension of, mistreatment or abuse (Va. Code 20-146.15).

• Family Abuse Protective Order Hearing

  A family abuse preliminary protective order may issue ex parte on an affidavit or sworn testimony showing good cause: an immediate and present danger of family abuse, or probable cause that it recently occurred. A full hearing follows within 15 days (Va. Code 16.1-253.1).

• Facts Tied to the Imminent Threat Standard

  The motion and affidavit state the facts of the emergency and tie them to an imminent threat to the child's life or health and the likelihood of serious or irremediable injury from delay.

• Notice Given or Reason It Was Not

  The motion states whether notice was given to the other parent, or why an ex parte order is requested under Va. Code 16.1-253(B).