Text Size:
Back to Virginia Law Help home page
Text Size:
Emergency Removal: What Happens if CPS Takes My Child? | Virginia Law Help

Emergency Removal: What Happens if CPS Takes My Child?

Read this in: Español

Reviewed by: Valerie L'Herrou, Anna Daniszewski

If someone reports that your child may be abused or neglected, Child Protective Services (CPS) will respond. Child Protective Services (CPS) is part of your local Department of Social Services (DSS).

Emergency removals can happen in two ways: CPS can do an emergency removal before all parties have gone to court, or they can file a petition and wait until the first hearing.

If CPS has taken your child or you think they might, this article explains what happens next and what you can do.

What is an Emergency Removal? 

If a CPS worker, doctor, or police officer believes your child is in immediate danger, they may take your child from your home right away. They can take your child away without your consent and without a court order. This is called an emergency removal.

This should only happen if your child is in immediate danger and there is no time to wait.

If this has happened or you think it might happen, contact a lawyer right away.

Free legal help:

What happens after my child is removed? 

After an emergency removal, things move fast.

CPS cannot keep your child for more than 72 hours without a court order. If the 72-hour deadline falls on a weekend or holiday, it extends to the next working day.

Within that time, DSS must file paperwork with the court called a Petition of Abuse and Neglect. This is a written statement from the CPS caseworker explaining their claims against you.

A judge can hold a hearing with only DSS present and issue an emergency removal order to keep your child in temporary custody. You may not be notified of this hearing. If you can find out when it is happening, it is worth going. You do not have a legal right to participate, but some parents and lawyers have been allowed in and permitted to speak.

What is the 5-day hearing? 

Within 5 business days of the removal, you have the right to a court hearing. This is officially called a preliminary removal hearing but is often called the "5-day hearing."

You must receive at least 24 hours notice before this hearing. The notice must include the date, time, and location of the hearing, along with the CPS caseworker's written statement of claims against you.

DSS is also required to schedule a Family Partnership Meeting. This should happen before the 5-day hearing. Read more about Family Partnership Meetings.

DSS will ask you who could care for your child, such as a relative or a close family friend. Think carefully about who you trust to support your family and your relationship with your child. These relationships are often tested during this process.

The court will appoint a free lawyer to represent you. Your lawyer's name and contact information should be in your court papers. Contact your lawyer right away. If you have not been notified of a lawyer, call the court and ask if one has been appointed.

Tell your lawyer:

  • Your side of the story and any evidence about you, your child, and your family.
  • What your goals are, such as getting your child back as soon as possible and/or requiring DSS to help you with something specific.
  • Where you would prefer your child go if you are unable to get them back immediately, such as relatives you trust to support you.

What does CPS have to prove to remove my child? 

For a court to approve the removal, Virginia law requires all four of these to be true:

  1. Your child's life or health is at immediate risk in your care.
  2. The risk is serious enough that severe injury is likely.
  3. CPS made reasonable efforts to avoid removal, or the situation was so urgent that there was no time. (There are some other exceptions.)
  4. There is no other way to keep your child safe.

What happens at the 5-day hearing? 

This is your first chance to tell your side of the story and argue why your child should come home. Do not treat it as just a formality.

There is one thing you must do at this hearing: ask for an adjudicatory hearing. This is like a trial, where you get a full chance to fight the abuse or neglect allegations. You are not automatically given one. But if you ask before the judge makes a ruling, the court must schedule one. If you do not ask, the judge can make a formal finding that abuse or neglect occurred right then and there, and skip ahead in the case.

 

Hay una cosa que debe hacer en esta audiencia: pedir una audiencia adjudicatoria. Esta audiencia es como un juicio, donde usted tiene una oportunidad completa de defenderse contra las alegaciones de abuso o negligencia. No se la darán automáticamente. Pero si la pide antes de que el juez tome una decisión, la corte debe programarla. Si no la pide, el juez puede determinar formalmente, en ese mismo momento, que ocurrió abuso o negligencia, y avanzar a la siguiente etapa del caso. 

At the 5-day hearing, the question is not whether the alleged abuse or neglect happened. The only question is whether removal is justified right now. For example, if the concern was based on one incident that you have already addressed, you can argue there is no longer an immediate risk.

DSS has the burden to prove the removal is necessary. You have the right to challenge their claims and present your own evidence.

How should I prepare for the 5-day hearing? 

Five days is not much time, but try to do the following:

  • Contact your lawyer immediately and share your side of the story, your evidence, and your goals.
  • Gather any witnesses or records that challenge the claims against you.
  • Bring proof of any steps you have taken to keep your child safe.
  • Think about alternatives to removal that you could offer the judge, such as agreeing to regular check-ins or having a family member stay with you temporarily.

What can I ask the judge for? 

At the hearing, you can ask the judge to: 

  • Return your child home to you, with or without conditions.
  • Place your child with a specific relative or family friend you trust, if they cannot come home right away.
  • Set specific visitation, such as twice a week, with the least restrictive conditions possible. For example, supervised by a family member rather than an agency, or in your home rather than an office.
  • Order DSS to provide specific types of help or services.
  • Make sure any orders are specific rather than left to DSS's discretion.

Make clear on the record that you want an adjudicatory hearing and that you object to the judge making any finding of abuse or neglect at this early stage.

DSS may ask the judge to: 

  • Find that your child's life or health would be at immediate risk at home, and must be placed elsewhere.
  • Give temporary custody to the other parent, a relative, or a friend.
  • Place your child in foster care. This means your child is in DSS's custody but placed in an approved home. That home could be with a relative, a family friend, or someone you do not know.
  • Issue a child protective order with conditions you must follow and services you must complete.

The court may decide to: 

  • Let your child stay with you, possibly with conditions like supervision or required services.
  • Give custody to the other parent or a relative.
  • Place your child in foster care.

The court must also decide visitation for you and your child. Parents should ask for specific orders (like 2x per week) and the least restrictive conditions that the judge considers safe (for example: supervised vs unsupervised; supervised by a family member instead of an agency; in the community instead of an office; in your home; unsupervised; or some combination of these). 

What happens next? How do I get my child back? 

There are a few possible points where your child could come home.

  • At the adjudicatory hearing. This must happen within 30 days of the preliminary hearing. This is the trial where DSS must prove the abuse or neglect allegations against you. If the judge rules that DSS did not prove its case, DSS no longer has authority to keep your child and must return them to you.

  • At the disposition hearing. If the judge rules against you at the adjudicatory hearing, your child will likely stay in the out-of-home placement until the disposition hearing. The disposition hearing must happen within 60 days of the preliminary hearing. At this hearing, the judge decides what happens next. Even if a finding of abuse or neglect was made against you, you can still get your child back at this stage if you can show it is safe and in your child's best interest.

Read more about the court process.

What if I disagree with the court's decision? 

You have the right to appeal, but you must wait until there is a final order. This is usually the order issued at the disposition hearing, which happens later in the case.

Look at any order you receive. If it says "final" or "appealable," you can appeal it. But even if it does not say this, you might still be able to appeal. Talk to your lawyer if you are unsure.

To appeal, a Notice of Appeal must be filed within 10 days at the Juvenile and Domestic Relations Court clerk's office. Talk to your lawyer right away. If you cannot reach your lawyer, go to the clerk's office yourself and ask for a Notice of Appeal form. You can fill it out and file it without your lawyer. Let your lawyer know if you do, and give them a copy.

What is a Foster Care Service Plan? 

Within 60 days of removing your child, DSS must give you a written Foster Care Service Plan. Read this plan carefully. The things you are asked to do in this plan will often be used later to decide whether your child can come home.

The plan must explain:

  • DSS's goals for your child and the timeline for reaching them.
  • What DSS expects from you as a parent, and the timeline for meeting those expectations.
  • The services DSS will provide to your child and to you.
  • When and how you can visit your child, and whether they can see their siblings.
  • Where your child will be placed and why that placement was chosen.
  • For children 14 and older, a plan for education, housing, employment, and other life skills.
  • For children 14 and older, an explanation of your child's rights in the case.

Push back if anything in the plan does not fit your situation or feels unrealistic. Do not agree to more than you can follow through on. Keep records of everything you do that the plan asks of you.

Where can I find legal help?

Was this information helpful?