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)