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:
- order the exchange of the child to be in a protected setting;
- order the visitation to be supervised and order the abuser to pay for some/all of the cost of the supervised visitation;
- order the abuser to attend/complete a batterers’ intervention program or other counseling as a condition of visitation;
- order the abuser to not drink alcohol or use drugs during the visitation and for 24 hours before the visitation;
- prohibit overnight visitation;
- 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
- 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)