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Legal Information: U.S. Virgin Islands


December 7, 2020

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)