West Virginia Emergency Custody Motion

Q: What is the West Virginia name for an emergency custody order?

The tools are an ex parte order granting temporary relief under W. Va. Code 48-5-512 and a motion for temporary relief under Family Court Rule 14. Section 48-5-512 sits in the divorce temporary-relief part; ask the clerk or an attorney whether it applies to non-divorce or unmarried-parent custody cases.

Q: What must I show a West Virginia court for ex parte temporary relief?

Under 48-5-512, it must appear from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or such party's attorney can be heard in opposition. The court decides whether that is shown.

Q: Does West Virginia require notice to the other parent?

Ex parte relief may be granted without written or oral notice only if the moving party or attorney certifies in writing any effort made to give notice and the reasons notice should not be required. Rule 14's copy-service requirement has an exception when ex parte relief is sought.

Q: How far ahead must a West Virginia temporary relief motion be filed?

Under Family Court Rule 14, an ordinary motion for temporary relief must be filed at least 10 days before the hearing. A shorter time is within the court's discretion.

Q: How soon is the full hearing after a West Virginia ex parte order?

Ask the circuit clerk or an attorney when the full hearing will be set and how long the temporary order lasts. For a magistrate emergency protective order, the family court final hearing must be held not later than 10 days after entry (W. Va. Code 48-27-403).

Q: Can a West Virginia court act if the child is only temporarily in the state?

Under W. Va. Code 48-20-204, a West Virginia court has temporary emergency jurisdiction if the child is present in the state and abandoned, or if emergency protection is needed because the child, a sibling or a parent is subjected to or threatened with mistreatment or abuse.

Q: Where do I file an emergency custody motion in West Virginia?

A Rule 14 motion is filed with the circuit clerk for the family court. Ask the clerk about forms, fees and local procedure.

Q: Is a protective order different from an emergency custody motion in West Virginia?

Yes. A magistrate court may enter an ex parte emergency protective order under W. Va. Code 48-27-403 on a verified petition protecting the petitioner or minor children, on clear and convincing evidence of immediate and present danger of abuse.

Q: Can I keep my child from the other parent while I wait for a West Virginia court?

Ask the court for the specific temporary orders you need rather than acting on your own. If a child is in danger, call 911.

Ex parte relief needs specific facts by affidavit or verified complaint showing irreparable injury

Find out where you stand in West Virginia

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Introduction

West Virginia ex parte temporary relief is under W. Va. Code 48-5-512, part of the divorce temporary-relief law, and Family Court Rule 14. Specific facts by affidavit or verified complaint must show immediate and irreparable injury.

Key Things to Know

1
If a child is in immediate danger, call 911 now. A court filing takes time and cannot replace emergency help.
2
The tools named here are an ex parte order granting temporary relief (W. Va. Code 48-5-512), a motion for temporary relief (Family Court Rule 14) and temporary emergency jurisdiction (W. Va. Code 48-20-204). Section 48-5-512 sits in the divorce temporary-relief part; ask the clerk or an attorney whether it applies to custody cases outside divorce or between unmarried parents.
3
Under 48-5-512, the standard is that it appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or such party's attorney can be heard in opposition. The court decides whether the showing is enough.
4
Examples of irreparable injury in the statute include a real and present threat of physical injury and the other party preparing to quit the state with the minor child.
5
Notice may be dispensed with only if the moving party or attorney certifies in writing any effort made to give notice and the reasons notice should not be required. An ordinary Rule 14 motion must be filed at least 10 days before the hearing, and the court may allow a shorter time.
6
Motions are filed with the circuit clerk for the family court. Ask the clerk when a full hearing will be set and how long a temporary order lasts.
7
For abuse, a magistrate court may enter an ex parte emergency protective order under W. Va. Code 48-27-403 on a verified petition, with a family court final hearing not later than 10 days after entry. Child protective services can also be contacted. For non-emergency changes, see the modifying child custody guide.

Key decisions before you file

Before you file a Emergency Custody Motion in West Virginia, a few decisions shape the document: which option to choose and what each one means. The Emergency Custody Motion guide walks through them.

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IN THE FAMILY COURT OF [COUNTY] COUNTY, WEST VIRGINIA

[PARENT NAME], Petitioner/Plaintiff, v. CIVIL ACTION NO. [CASE NUMBER] [OTHER PARENT NAME], Respondent/Defendant. JUDGE: [JUDGE NAME]

MOTION FOR EX PARTE TEMPORARY RELIEF (EMERGENCY TEMPORARY CUSTODY) WITH SUPPORTING AFFIDAVIT

Movant, [PARENT NAME], moves under Family Court Rule 14 and, where it applies to this action, W. Va. Code 48-5-512 for temporary relief and states:

CHILD: [CHILD NAME], born [DATE OF BIRTH], who lives at [ADDRESS] in [COUNTY], West Virginia.
EXISTING ORDERS AND CASES: [CASE NUMBER AND COURT OF EACH CUSTODY, PROTECTIVE ORDER OR ABUSE AND NEGLECT CASE, OR NONE].
FACTS OF THE EMERGENCY: [WHAT HAS HAPPENED OR IS THREATENED, DATES, PLACES, WHO WAS PRESENT].
IMMEDIATE AND IRREPARABLE INJURY: Immediate and irreparable injury, loss or damage will result to Movant before the other parent or that parent's attorney can be heard in opposition because [SPECIFIC FACTS]. [ ] 5. TEMPORARY EMERGENCY JURISDICTION: The child is present in West Virginia and the Court is asked to act under W. Va. Code 48-20-204 because the child, a sibling or a parent is subjected to or threatened with mistreatment or abuse: [SPECIFIC FACTS].

REQUESTED TEMPORARY ORDERS (ALTERNATIVES): [ ] A. Temporary custody of the child to Movant until a hearing. [ ] B. Parenting time for the other parent only as follows: [SUPERVISED, LIMITED TERMS OR NONE UNTIL HEARING]. [ ] C. An order restraining the other parent from [HARMING THE CHILD OR REMOVING THE CHILD FROM WEST VIRGINIA]. [ ] D. Other: [REQUEST].

NOTICE (ALTERNATIVES): [ ] A. Notice of this motion was given to the other parent on [DATE] by [METHOD]. [ ] B. Notice was not given. Movant certifies the following efforts to give notice: [EFFORTS]. Notice should not be required because: [REASONS].

______________________ [PARENT NAME], [ADDRESS, PHONE, EMAIL]

AFFIDAVIT STATE OF WEST VIRGINIA, COUNTY OF [COUNTY], to-wit: I, [PARENT NAME], being duly sworn, state that I have read this motion and that the facts in it are true, except those stated on information and belief, and as to those I believe them to be true. ______________________ [PARENT NAME] Taken, subscribed and sworn to before me on [DATE]. ______________________ Notary Public. My commission expires: [DATE]

CERTIFICATE OF SERVICE I certify that a copy of this motion was sent on [DATE] by [METHOD] to [OTHER PARENT OR COUNSEL, ADDRESS]. [ ] No service was made before filing because: [REASON]. ______________________ [PARENT NAME]

West Virginia Requirements for Emergency Custody Motion

Specific facts by affidavit or verified complaint
W. Va. Code 48-5-512 requires specific facts shown by affidavit or verified complaint that immediate and irreparable injury, loss or damage will result before the adverse party can be heard.
Written certification of notice efforts
To dispense with notice, the moving party or attorney must certify in writing any effort made to give notice and the reasons notice should not be required.
Motion filed 10 days before hearing
Family Court Rule 14 requires an ordinary motion for temporary relief to be filed at least 10 days before the hearing; a shorter time is within the court's discretion.
Temporary emergency jurisdiction
W. Va. Code 48-20-204 applies when the child is present in West Virginia and abandoned, or needs emergency protection because the child, a sibling or a parent is subjected to or threatened with mistreatment or abuse.
Facts of the emergency
State dates, places, people present and the specific harm threatened, in the affidavit.
Specific temporary orders requested
List each order sought, such as temporary custody, limited or supervised parenting time, or a restraint, as separate alternatives.

Frequently Asked Questions

What is the West Virginia name for an emergency custody order?

What must I show a West Virginia court for ex parte temporary relief?

Does West Virginia require notice to the other parent?

How far ahead must a West Virginia temporary relief motion be filed?

How soon is the full hearing after a West Virginia ex parte order?

Can a West Virginia court act if the child is only temporarily in the state?

Where do I file an emergency custody motion in West Virginia?

Is a protective order different from an emergency custody motion in West Virginia?

Can I keep my child from the other parent while I wait for a West Virginia court?

Find out where you stand in West Virginia

Introduction

Key Things to Know

Key decisions before you file

Customize your Emergency Custody Motion Template with DocDraft

West Virginia Requirements for Emergency Custody Motion

Specific facts by affidavit or verified complaint

Written certification of notice efforts

Motion filed 10 days before hearing

Temporary emergency jurisdiction

Facts of the emergency

Specific temporary orders requested

Frequently Asked Questions