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Legal Information: U.S. Virgin Islands

Custody

Updated: 
November 30, 2023

Who can file for custody?

Any person can petition the court for custody of a child, not just a parent. If there is no court order, the natural parents of the child are considered to have co-equal rights. Co-equal rights give both parents the same right to have physical or legal custody. Any person who wants physical or legal custody of a child must file a custody petition with the Family Division of the Superior Court. This petition would be served on all persons who have an interest in the custody of the child, typically the parents, and/or other persons with whom the child lives.

Many parents separate and never formalize custody. Often parents or caregivers are able to agree to a custody arrangement without involving the courts. However if there is a problem with the arrangement and the parents or caregivers do not agree, a custody order may be necessary.

What are the usual steps when filing for custody?

Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often times, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or your fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.

If you decide to file in court for custody, although custody laws vary by territory/state, the process usually looks similar to this:

  1. File for custody. Depending on the state or territory, you may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:
    • If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
    • If you are a married parent who is not filing for divorce, you can file for custody on its own.
    • If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.
  2. Prepare for the custody process

The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence on our Preparing for Court – By Yourself section. If you are able to hire an attorney, you can use this list of questions as your guide when deciding who to hire.

During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see What factors will a judge consider when deciding custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.

  1. Prepare for trial

There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney will be able to present evidence and to cross-examine the other party to help the judge make a decision.

If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:

  • communications between the parents can only be in writing;
  • all communications can only be related to the child; and
  • a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.

You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child as to avoid future conflicts.

  1. Options if you lose the custody case

There could be a couple of options that are filed immediately after the judge makes the custody order:

  • A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
  • An appeal moves the case to a higher court and asks that court to review the lower court’s decision due a judge’s error.

A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state.

You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider, child support, and moving out of state with your child.

What factors will a judge consider when deciding custody?

When deciding custody, a judge will generally look at what custody arrangement in the “best interests of the child.” The law in the Virgin Islands, however, doesn’t give much guidance as to what specific factors must be considered, except to say that the judge should give “due regard to the age and sex of such children and giving primary consideration to the needs and welfare of such children.”2 The only time when there is a specific list of factors that a judge must consider is in cases of domestic violence. To see these factors, go to What factors will a judge consider when deciding custody and visitation when there is domestic violence?

Here is an example of what factors a judge in one court case considered when deciding custody, which were considered appropriate by the highest court in the Virgin Islands – however, we cannot say if the judge in your case will consider the same factors:

  • the home environments of each parent;
  • the ability of each parent to nurture the child;
  • whether either parent was guilty of any abuse or neglect;
  • the relationship between the child and the parents;
  • the relationship between the child and other individuals who are present in the home;
  • the ability of the child to relate to any siblings; and
  • the willingness of each parent to provide a stable home environment for the child.3

1 See generally, 16 V.I.C. § 109
2 16 V.I.C. § 109(a)(1)
3 See Madir v. Daniel, 53 V.I. 623 (2010)

What factors will a judge consider when deciding custody and visitation when there is domestic violence?

In addition to any other factors that a judge may consider when deciding custody or visitation, if the judge determines that there has been domestic violence, the judge has to consider each of the following:

  • the safety and well-being of the child and of the parent who is the victim of domestic violence;
  • the abuser’s history of causing physical harm, bodily injury, assault to another person or causing reasonable fear of any of these;
  • if a parent is absent or relocates because of an act of domestic violence by the other parent, this cannot be held against the victim-parent in determining custody or visitation.1

In addition, the judge will assume it is not in the best interest of the child to live with a parent if:

1) the parent has committed domestic violence;

2) the parent has been convicted for the death of the other parent; or 3) the child has been conceived by rape and the rapist is asking for custody. 2

In any of these situations, the judge will assume that it is in the best interest of the child to live with the non-abusive parent in the location of that parent’s choice, either in the Virgin Island or in another state/territory. However, the offender/parent can present evidence to try to change the judge’s mind.2

When deciding whether or not to allow visitation by a parent who committed domestic violence, the judge can allow visitation only if the judge believes that sufficient protections can be put in place to keep the child and the non-abusive parent safe. The judge can do any of the following:

  1. order the exchange of the child to be in a protected setting;
  2. order the visitation to be supervised and order the abuser to pay for some/all of the cost of the supervised visitation;
  3. order the abuser to attend/complete a batterers’ intervention program or other counseling as a condition of visitation;
  4. order the abuser to not drink alcohol or use drugs during the visitation and for 24 hours before the visitation;
  5. prohibit overnight visitation;
  6. require the abuser to post a bond (money) to ensure that s/he returns the child to the other parent and keeps the child safe; and
  7. require anything else that is considered necessary to provide for the safety of the child, the victim of domestic violence, or another family or household member.3

1 16 V.I.C. § 109(c)
2 16 V.I.C. § 109(b)
3 16 V.I.C. § 109(d)

If my child was conceived by rape, can the offender get custody?

If your child was conceived by rape and the offender is asking for custody, the judge will assume it is not in the best interest of the child to live with the offender. Instead, the judge will assume that it is in the best interest of the child to live with the non-abusive parent in the location of that parent’s choice, either in the Virgin Islands or in another state/territory. However, the offender/parent can present evidence to try to change the judge’s mind.1

1 16 V.I.C. § 109(b)

Can I get custody in a restraining order proceeding?

Virgin Islands law allows a victim of domestic violence to request temporary custody of a child through a restraining order. The abused parent should file a complaint for a restraining order with the Family Division of the Superior Court and request temporary custody and child support. At the restraining order hearing, the judge may grant custody, child support, and determine visitation for the period of time that the restraining order is in effect, which is usually up to two years, provided that the parents are not already litigating these issues in another court case.1

1 16 V.I.C. § 97(b)(4), (d)

Under what circumstances can an abuser’s parental rights be terminated?

A petition to terminate parental rights may be filed by the Department of Human Services, the child’s guardian ad litem, or any “interested party,” which includes the child’s other parent.1 The judge can terminate the abuser’s parental rights if it is in the best interests of the child to do so and one of the following is true:

  1. the abuser has abandoned the child;
  2. the abuser has not cooperated with the Department of Human Services’ efforts to reunite parent and child;
  3. the child has been removed from the abuser’s home for more than six months and:
    1. the conditions that caused the child to be removed are still in place and likely to cause the child to be abused and neglected again;
    2. it is not likely that this situation will be fixed within 18 months to allow the child to safely return to the home in the near future; and
    3. the child has been in foster care or not in the physical custody of the abuser for 15 of the 22 most recent months and the abuser cannot prove that it is likely the child will be returned within 6 months;
  4. the abuser has been convicted of aggravated child abuse and neglect against the child or any of the child’s siblings or half-siblings, or any other child living in the home;
  5. the abuser has been convicted of the intentional and wrongful death of the child’s other parent or legal guardian;
  6. the abuser is unable to parent the child because of:
    1. emotional or mental illness; or
    2. drug or alcohol abuse;
  7. the abuser does not want, or cannot have, legal and physical custody of the child;
  8. the child would be in danger of substantial physical or emotional harm if placed with the abuser; or
  9. the abuser has given up parental rights or consented to the child’s adoption.2

In addition, the Department of Human Services is required to file a petition to terminate the abuser’s parental rights if:

  1. the child has been in a placement out of the home for 15 of the 22 most recent months;
  2. the abuser has:
    1. killed the child’s sibling or half-sibling;
    2. attempted, aided and abetted, solicited, or conspired to kill the child’s sibling or half-sibling; or
    3. committed felony assault that seriously injured the child or any sibling or half-sibling;
  3. the judge decides that the abuser has abused or neglected the child two or more times; or
  4. the child is removed from the abuser’s home within 18 months of returning after a previous out-of-home placement.3

The parental rights of the abuser may be terminated without affecting your parental rights.4 The judge may not terminate parental rights, however, if your child:

  • is 15 or older;
  • is sufficiently mature to have an opinion; and
  • objects to the termination of parental rights.5

1 5 V.I.C. § 2550(b), (c)
2 5 V.I.C. § 2550(c)
3 5 V.I.C. § 2550(d)
4 5 V.I.C. § 2550(b)
5 5 V.I.C. § 2550(f)

If I move to a new state, can I transfer my child custody case there?

After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.