This section has basic information about custody in the Virgin Islands. In our general Custody page, we have information about custody that is not specific to any state. The page includes a section about how to try to transfer your custody case to a new state where you are living so that you can modify the custody order from your new state.
Basic info and definitions
What is custody?
Custody in the Virgin Islands is the right and responsibility to care for and control a child. There are two types of custody, physical and legal.
Physical Custody: The right to have the child live in the parent’s or caregiver’s home. The person with physical custody will make the day-to-day decisions for the child. A person with physical custody of a child is also entitled to receive child support from the other parent.
Legal Custody: The right to make the major decisions in the child’s life, such as where the child goes to school, the religion the child practices, etc. A person with legal custody also has legal access to any documents for the child, including medical and school records, and has control of a child’s assets.
What is the difference between sole and joint custody?
Physical and legal custody can either be sole or shared. The legal description of this authority is sole custody or joint. Any combination of the two is possible. Parents or caregivers can have joint physical custody (for example the child spends half the week at one person’s house and half the week at the other) or have joint legal custody.
The most common arrangement in the Virgin Islands is for one parent to have sole physical custody and both parents sharing joint legal custody. Generally, the courts favor both parents having maximum contact with the child.
What is visitation?
Visitation is a parent or relative’s right to spend time with the child. Visitation can occur through face-to-face contact with the child, or over the telephone, depending on the circumstances. When requesting visitation from the court, a parent can ask for a specific schedule for visitation, or may leave the visitation schedule open, and simply state that the visitation will be reasonable or liberal.
A parent’s right to visitation is not affected by non-payment of child support. The custodial parent cannot deny visitation due to non-payment. In extreme cases, the court will order supervised visitation.
Should I start a court case to ask for supervised visits?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to VI Finding a Lawyer to seek out legal advice.
What is jurisdiction?
Jurisdiction is the authority of a court to decide who should have custody. Typically the Virgin Islands courts will have jurisdiction if the child has lived in the Virgin Islands for six months or longer before the case is filed. However there are exceptions such as if the child is kidnapped and taken to another state or territory or the child is in immediate danger.
When can a grandparent file a petition for visitation rights?
In the Virgin Islands, a grandparent can file a petition for visitation in court if any of the following are true:
- the parents of the minor child are currently living separately and they plan to stay that way, or they are not sure how long they will be living separately;
- one of the parents has been absent for more than one month and the other parent doesn’t know where that parent is;
- the child is not living with either parent and has not been legally adopted; or
- the minor child’s parent died, and the petitioning grandparent is the deceased person’s parent. However, if the minor child’s living parent remarries, and the minor child gets legally adopted by a step-parent, the grandparent cannot file for visitation.1
Note: A “grandparent” is defined under the law as:
- the biological or adoptive parent of either parent of the minor child;
- a biological grandparent of a child adopted by a step-parent; or
- a relative of the child, including a step-parent of the minor child’s parent, where a substantial relationship exists between the relative and the child.2
1 16 V.I.C. § 604(a)
2 16 V.I.C. § 603
When can a grandparent be granted visitation rights?
Once a grandparent files a visitation petition, the judge may hold a hearing if the parties cannot reach an agreement. At the hearing, the judge will grant visitation to the grandparent if it is in the child’s best interests. The judge will consider the following factors when deciding whether visitation is in the best interests of the child:
- whether the visitation would interfere with any parent-child relationship or with a parent’s authority over the child;
- the nature of the relationship between the grandparent and the minor child, including:
- how often they had contact;
- whether the child has lived with the grandparent and the length of time of that they lived together;
- the motivation of the grandparent; and
- the grandparent’s ability to give the child love, affection, and guidance;
- whether the child’s physical or emotional health would be endangered by the visitation or lack of it;
- the nature of the relationship between the grandparent and the parent of the minor child, including friction between the grandparent and the parent, and the effect such friction would have on the child;
- the age of the child;
- the circumstances that resulted in the absence of a nuclear family, whether by divorce, death, relinquishment or termination of parental rights, or other cause;
- the recommendation regarding visitation made by any guardian ad litem appointed for the child or by a child welfare agency;
- any preference or wishes expressed by the child, if the child is old enough and mature enough to express a meaningful preference; and
- any such other factors as the judge may find appropriate or relevant to the petition for visitation.1
1 16 V.I.C. § 605
The custody process
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 (which are explained above). Any person wishing to obtain physical or legal custody of a child must file a custody petition with the Territorial 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 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 USVI, 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 USVI (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 interrelationship of the child to the parents and other individuals who were present in the home,
- the ability of the child to interrelate to siblings, and
- the willingness of each parent to provide a stable home environment for the child.3
Note: If a judge determines that 1) domestic violence has occurred, 2) that one parent has been convicted for the death of the other parent, or 3) that the child has been conceived by rape, the judge will assume it is not in the best interest of the child to remain with parent who has committed such violence. The judge will assume that it is in the best interest of the child to reside with the other parent in the location of that parent’s choice (either in the USVI or in another state/territory) but the offender/parent can present evidence to try to change the judge’s mind.4
1 See generally, 16 V.I.C. § 109
2 16 V.I.C. § 109(a)(1)
3 These were factors considered in Madir v. Daniel, 53 V.I. 623
4 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 person should file a complaint for a restraining order with the Family Division of the Territorial Court and request temporary custody and child support. At the restraining order hearing, the court 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 2 years.1
1 VI ST T. 16 § 98(b)(4),(d)
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 in determining custody or visitation, if the judge determines that there has been domestic violence, the just 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 (or causing reasonable fear of any of these) to another person;
- If a parent is absent or relocates because of an act of domestic violence by the other parent, this cannot be held against the parent in determining the custody or visitation.1
In addition, if a judge determines that 1) domestic violence has occurred, 2) that one parent has been convicted for the death of the other parent, or 3) that the child has been conceived by rape, the judge will assume it is not in the best interest of the child to remain with parent who has committed such violence. The judge will assume that it is in the best interest of the child to reside with the other parent in the location of that parent’s choice (either in the USVI or in another state/territory) but 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)