Child Removed From a Home Where the Parent Was Only Visiting

Attorney Answer

Removal turns on whether your daughter was in imminent danger, not on whose house she was in — so being a visitor rather than a resident does not by itself defeat the case, though it is a fact that can matter a great deal.

A child protective services worker may take a child into custody without a court order only where the child is in an emergency situation constituting an imminent danger to the physical well-being of the child, and the worker must then immediately seek a court's ratification. That is W. Va. Code § 49-4-303. Notice what it asks: whether the child faced imminent physical danger at that moment. If the danger the worker identified was created by conditions or people at that house, the fact that you do not live there is relevant — but the State's theory will usually be that you brought or allowed your daughter into it, which is a claim about your judgment, not your address.

What happens next is set by statute. W. Va. Code § 49-4-601 governs the abuse and neglect petition, the notice you must receive, and your right to counsel — including appointed counsel if you cannot afford a lawyer. W. Va. Code § 49-4-602 governs temporary care, custody and control and the preliminary hearing. It requires at least five days' actual notice to respondents before that hearing, and it limits a temporary custody order to a period not exceeding sixty days absent an improvement period.

So the shape of your case is this: there is a hearing coming, you are entitled to a lawyer for it, and the order that removed your daughter is temporary and capped rather than permanent. What you do between now and that hearing determines a great deal.

What you can do

1. Ask for a lawyer at your very first court appearance and say you cannot afford one if that is true. Under § 49-4-601 you have a right to counsel in these proceedings — this is the single most important step, and parents lose ground by trying the first hearing alone. 2. Get a copy of the petition and read exactly what the State alleges. You cannot answer allegations you have not read, and the specific conditions listed are what you must be prepared to address. 3. Do not miss the preliminary hearing. Under § 49-4-602 you are entitled to at least five days' actual notice, and appearing is how you contest temporary custody. 4. Document where you actually live: lease, utility bills, mail, driver's license. If your residence is genuinely separate and appropriate, that fact needs proof, not assertion. 5. Attend every visit you are offered and comply with every service or evaluation the court orders, even the ones you think are unnecessary. Attendance records are read closely. 6. Do not discuss the case with the other adults at that house, and do not have your daughter around anyone the petition identifies as a danger. 7. Keep a file of everything — court papers, worker names and dates, service referrals, visit logs.

⏱ Time limits apply. W. Va. Code § 49-4-602 requires at least five days' actual notice to respondents before the preliminary hearing and caps a temporary custody order at sixty days absent an improvement period. Exactly when your hearing falls and what deadlines run from it depend on your specific case, so read every paper you are served the day you get it.