W. Va. Code » §49-4-303. Emergency removal by department before filing of petition; conditions; referee; application for emergency custody; order.
West Virginia Code

W. Va. Code § 49-4-303 (2026)

Emergency removal by department before filing of petition; conditions; referee; application for emergency custody; order

✓ current as of May 2026
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ARTICLE 4. COURT ACTIONS.

§49-4-303. Emergency removal by department before filing of petition; conditions; referee; application for emergency custody; order.

Prior to the filing of a petition, a child protective service worker may take the child or children into his or her custody (also known as removing the child) without a court order when:

(1) In the presence of a child protective service worker a child or children are in an emergency situation which constitutes an imminent danger to the physical well-being of the child or children, as that phrase is defined in section two hundred one, article one of this chapter; and

(2) The worker has probable cause to believe that the child or children will suffer additional child abuse or neglect or will be removed from the county before a petition can be filed and temporary custody can be ordered.

After taking custody of the child or children prior to the filing of a petition, the worker shall forthwith appear before a circuit judge or referee of the county where custody was taken and immediately apply for an order. If no judge or referee is available, the worker shall appear before a circuit judge or referee of an adjoining county, and immediately apply for an order. This order shall ratify the emergency custody of the child pending the filing of a petition.

The circuit court of every county in the state shall appoint at least one of the magistrates of the county to act as a referee. He or she serves at the will and pleasure of the appointing court, and shall perform the functions prescribed for the position by this subsection.

The parents, guardians or custodians of the child or children may be present at the time and place of application for an order ratifying custody. If at the time the child or children are taken into custody by the worker he or she knows which judge or referee is to receive the application, the worker shall so inform the parents, guardians or custodians.

The application for emergency custody may be on forms prescribed by the Supreme Court of Appeals or prepared by the prosecuting attorney or the applicant, and shall set forth facts from which it may be determined that the probable cause described above in this subsection exists. Upon the sworn testimony or other evidence as the judge or referee deems sufficient, the judge or referee may order the emergency taking by the worker to be ratified. If appropriate under the circumstances, the order may include authorization for an examination as provided in subsection (b), section six hundred three of this article.

If a referee issues an order, the referee shall by telephonic communication have that order orally confirmed by a circuit judge of the circuit or an adjoining circuit who shall, on the next judicial day, enter an order of confirmation. If the emergency taking is ratified by the judge or referee, emergency custody of the child or children is vested in the department until the expiration of the next two judicial days, at which time any child taken into emergency custody shall be returned to the custody of his or her parent or guardian or custodian unless a petition has been filed and custody of the child has been transferred under section six hundred two of this article.

Notes of Decisions
Cited in 14 cases (6 in the last 5 years), 2017–2025 · leading case: In Re Guardianship of K.W., M.W., & A.W., 813 S.E.2d 154 (W. Va. 2018).
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In Re Guardianship of K.W., M.W., & A.W., 813 S.E.2d 154 (W. Va. 2018). “The temporary guardianship put in place by the family court was an attempt to protect these children from their parents in the face of imminent need, not unlike removal by DHHR prior to filing a petition under West Virginia Code § 49-4-303 and temporary custodial placement…”
In re Z.H. (W. Va. 2021). · cites it 4× “2 (discussing W. Va. Code § 49-4-303 , the pre-petition emergency 15 removal statute).”
In re K.L. (W. Va. 2022). · cites it 4× “As to disposition, petitioner claims the circuit court erred by terminating his parental rights 1) based on an issue—substance abuse—which was not the subject of his adjudication; 2) in lieu of a lesser “disposition 5” 10 ; and 3) without considering the wishes of K.”
In re W.M. (Separate Included) (W. Va. 2025). · cites it 3× “of the county where custody was taken and immediately apply for an order.” (emphasis added). The DHS took this child from Rockingham County, Virginia.”
In Re: R.Y. (W. Va. 2017). · cites it 2× “9 Another statute, West Virginia Code § 49-4-303 (2015), authorizes the DHHR to take emergency custody of a child before an abuse and neglect petition is filed.”
In re B.C., E.C. & G.C. (W. Va. 2019). · cites it 2× “W. Va. Code § 49-4-303 (2). Therefore, the DHHR needed to prove that there was probable cause that the children were in imminent danger of additional abuse and neglect, and it failed to present any evidence in support of this burden.”
In re E.H. (W. Va. 2020). · cites it 2× “West Virginia § 49-4-303 provides that a DHHR worker “may take the child into his or her custody” prior to the filing of the petition when (1) In the presence of a child protective service worker a child or children are in an emergency situation which constitutes an imminent…”
In re: B.H. (W. Va. 2020). · cites it 2× “The first, West Virginia Code § 49-4-303, provides that a DHHR worker “may take the child into his or her custody” prior to the filing of the petition when (1) In the presence of a child protective service worker a child or children are in an emergency situation which…”
In re G.S. (W. Va. 2021). · cites it 2× “4 Three days later, Petitioners moved to intervene in the abuse and neglect matter and be See W. Va. Code § 49-4-303 (2015) (authorizing emergency removal by 2 DHHR and ratification of emergency custody by magistrate court order).”
In Re: B.N. (W. Va. 2017). “Moreover, according to West Virginia Code § 49-4-303, prior to the filing of an abuse and neglect petition, a child protective service worker may take the child .”
In Re: R.c., T.c., E.C. & X.C. (W. Va. 2017). “According to West Virginia Code § 49-4-303, a child protective service worker may take the child or children into his or her custody (also known as removing the child) without a court order when: (1) In the presence of a child protective service worker a child or children are in…”
In Re: R.c., T.c., E.C. & X.C. (W. Va. 2017). “According to West Virginia Code § 49-4-303, a child protective service worker may take the child or children into his or her custody (also known as removing the child) without a court order when: (1) In the presence of a child protective service worker a child or children are in…”
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