West Virginia Code 49-4-302 – Authorizing a family court judge to order custody of a child in emergency situations; requirements; orders; investigative reports; notification required
(a) Notwithstanding the jurisdictional limitations contained in section two, article two-a, chapter fifty-one of this code, family court judges are authorized to order the department to take emergency custody of a child who is in the physical custody of a party to an action or proceeding before the family court, if the family court judge finds that there is clear and convincing evidence that:
Terms Used In West Virginia Code 49-4-302
- child: means an individual who meets one of the following conditions:
(A) Is under thirteen years of age. See West Virginia Code 49-1-202
- Court: means the circuit court of the county with jurisdiction of the case or the judge in vacation unless otherwise specifically provided. See West Virginia Code 49-1-207
- Custodian: means a person who has or shares actual physical possession or care and custody of a child, regardless of whether that person has been granted custody of the child by any contract or agreement. See West Virginia Code 49-1-204
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Facility: means a place or residence, including personnel, structures, grounds, and equipment used for the care of a child or children on a residential or other basis for any number of hours a day in any shelter or structure maintained for that purpose. See West Virginia Code 49-1-206
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Imminent danger to the physical well-being of the child: means an emergency situation in which the welfare or the life of the child is threatened. See West Virginia Code 49-1-201
- Parent: means an individual defined as a parent by law or on the basis of a biological relationship, marriage to a person with a biological relationship, legal adoption or other recognized grounds. See West Virginia Code 49-1-204
- Placement: means any temporary or permanent placement of a child who is in the custody of the state in any foster home, kinship parent home, group home, or other facility or residence. See West Virginia Code 49-1-206
- Preliminary hearing: A hearing where the judge decides whether there is enough evidence to make the defendant have a trial.
(1) There exists an imminent danger to the physical well-being of the child as defined in section two hundred one, article one of this chapter;
(2) The child is not the subject of a pending action before the circuit court alleging abuse and neglect of the child; and
(3) There are no reasonable available alternatives to the emergency custody order.
(b) An order entered pursuant to subsection (a) of this section must include specific written findings.
(c) A copy of the order issued pursuant to subsection (a) of this section shall be transmitted forthwith to the department, the circuit court and the prosecuting attorney.
(d) Upon receipt of an order issued pursuant to subsection (a) of this section, the department shall immediately respond and assist the family court judge in emergency placement of the child.
(e)(1) Upon receipt of an order issued pursuant to subsection (a) of this section, the circuit court shall cause to be entered and served, an administrative order in the name of and regarding the affected child, directing the department to submit, within ninety-six hours from the time the child was taken into custody, an investigative report to both the circuit and family court.
(2) The investigative report shall include a statement of whether the department intends to file a petition pursuant to section six hundred two of this article.
(f)(1) An order issued pursuant to subsection (a) of this section terminates by operation of law upon expiration of ninety-six hours from the time the child is initially taken into protective custody unless a petition is filed with the circuit court under section six hundred two of this article within ninety-six hours from the time the child is initially taken into protective custody.
(2) The filing of a petition within ninety-six hours from the time the child is initially taken into protective custody extends the emergency custody order issued pursuant to subsection (a) of this section until a preliminary hearing is held before the circuit court, unless the circuit court orders otherwise.
(g)(1) Any worker for the department assuming custody of a child pursuant to this section shall immediately notify the parents, parent, grandparents, grandparent, guardian or custodian of the child of the taking of the custody and the reasons therefor if the whereabouts of the parents, parent, grandparents, grandparent, guardian or custodian are known or can be discovered with due diligence and, if not, a notice and explanation shall be given to the child's closest relative if his or her whereabouts are known or can be discovered with due diligence within a reasonable time. An inquiry shall be made of relatives and neighbors and, if an appropriate relative or neighbor is willing to assume custody of the child, the child will temporarily be placed in that person's custody.
(2) In the event no other reasonable alternative is available for temporary placement of a child pursuant to subdivision (1) of this subsection, the child may be housed by the department in an authorized child shelter facility.