Custody: The custody process

Laws current as of December 5, 2024

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:

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.
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.

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.

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)

How will the judge decide on custody and visitation when there is domestic violence?

If the judge believes domestic violence occurred, s/he must consider other factors in addition to the usual factors that a judge considers to decide what custody and visitation are in the child’s best interests. The additional factors are:

making sure the child is safe and well;
making sure you are safe and well;
looking at the abuser’s history of assaulting, physically injuring, or making someone reasonably afraid of being assaulted or physically injured; and
not holding it against you if you moved or left to escape domestic violence by the other parent.¹

In some cases, the judge will assume that an abusive parent should not have physical custody.² To learn more, go to Can a parent who committed domestic violence get custody or visitation?

When it comes to visitation, the judge must be sure there are enough protections in place to keep you and your child safe.³ You can read more about these protections in What protections can the judge order to make sure my child and I are safe?

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

What protections can the judge order to make sure my child and I are safe during visitation?

To keep you and your child safe during visits with the abuser, the judge can order any of these protections:

You and the abuser pick up and drop off (exchange) the child in a “protected setting.”
The visits are supervised, and the abuser has to pay for some or all of the cost of the supervised visitation.
The abuser must complete a batterers’ intervention program or other counseling to get visitation.
The abuser can’t drink alcohol or use drugs during the visits and for 24 hours before the visits.
The abuser can’t have the child for overnight visits.
The abuser must post a money bond as a guarantee that s/he will return the child to you and keep the child safe.
The judge can also order anything else s/he believes is needed to protect the child, you, or another person in your family or household.¹

¹ 16 V.I.C. § 109(d)

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)

When does a Virgin Islands court have power (jurisdiction) over a child?

Jurisdiction is the authority of a court to decide who should have custody of a particular child. Typically, the Virgin Islands courts will have jurisdiction if the Virgin Islands is the child’s “home state,” meaning that the child has lived in the Virgin Islands with a parent for six months or longer before the case is filed.¹ This is true when the child is currently in the Virgin Islands, or if the child is currently away but the Virgin Islands was the child’s home state within the six months before the case was filed and a parent still lives in the Virgin Islands.² However, there could be exceptions to this six-month rule if, for example, the child has been in the Virgin Islands for less than 6 months and has been abandoned or is the victim or threatened victim of abuse or neglect.³

¹ 16 V.I.C. § 116(7)
² 16 V.I.C. § 127
³ 16 V.I.C. § 130

Legal Information: U.S. Virgin Islands

Custody