Custody: Who can get custody or visitation

Laws current as of December 5, 2024

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. Any person who wants physical or legal custody of a child must file a custody petition with the Family Division of the Superior 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.

If my child was conceived by rape, can the offender get custody?

If your child was conceived by rape and the offender is asking for custody, the judge will assume it is not in the best interest of the child to live with the offender. Instead, 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 Islands or in another state/territory. However, the offender/parent can present evidence to try to change the judge’s mind.¹

¹ 16 V.I.C. § 109(b)

Can a parent who committed domestic violence get custody or visitation?

If the judge believes a parent committed domestic violence, the judge must think about this when deciding where the child should live and if the abuser should get visits.¹

There is a “rebuttable presumption,” which means the judge will assume it is in the child’s best interest to live with the non-abusive parent. However, the abuser can present evidence to try to change the judge’s mind.²

The judge can only allow the abuser to get visits if there are enough protections in place to keep you and your child safe.³ To read about how the judge can protect you and your child, go to What protections can the judge order to make sure my child and I are safe during visitation?

¹ 16 V.I.C. §§ 109(b),(d),(e); 91(b)
² 16 V.I.C. § 109(b)
³ 16 V.I.C. § 109(d)

Under what circumstances can an abuser’s parental rights be terminated?

A petition to terminate parental rights may be filed by the Department of Human Services, the child’s guardian ad litem, or any “interested party,” which includes the child’s other parent.¹ The judge can terminate the abuser’s parental rights if it is in the best interests of the child to do so and one of the following is true:

the abuser has abandoned the child;
the abuser has not cooperated with the Department of Human Services’ efforts to reunite parent and child;
the child has been removed from the abuser’s home for more than six months and:
1. the conditions that caused the child to be removed are still in place and likely to cause the child to be abused and neglected again;
2. it is not likely that this situation will be fixed within 18 months to allow the child to safely return to the home in the near future; and
3. the child has been in foster care or not in the physical custody of the abuser for 15 of the 22 most recent months and the abuser cannot prove that it is likely the child will be returned within 6 months;
the abuser has been convicted of aggravated child abuse and neglect against the child or any of the child’s siblings or half-siblings, or any other child living in the home;
the abuser has been convicted of the intentional and wrongful death of the child’s other parent or legal guardian;
the abuser is unable to parent the child because of:
1. emotional or mental illness; or
2. drug or alcohol abuse;
the abuser does not want, or cannot have, legal and physical custody of the child;
the child would be in danger of substantial physical or emotional harm if placed with the abuser; or
the abuser has given up parental rights or consented to the child’s adoption.²

In addition, the Department of Human Services is required to file a petition to terminate the abuser’s parental rights if:

the child has been in a placement out of the home for 15 of the 22 most recent months;
the abuser has:
1. killed the child’s sibling or half-sibling;
2. attempted, aided and abetted, solicited, or conspired to kill the child’s sibling or half-sibling; or
3. committed felony assault that seriously injured the child or any sibling or half-sibling;
the judge decides that the abuser has abused or neglected the child two or more times; or
the child is removed from the abuser’s home within 18 months of returning after a previous out-of-home placement.³

The parental rights of the abuser may be terminated without affecting your parental rights.⁴ The judge may not terminate parental rights, however, if your child:

is 15 or older;
is sufficiently mature to have an opinion; and
objects to the termination of parental rights.⁵

¹ 5 V.I.C. § 2550(b), (c)
² 5 V.I.C. § 2550(c)
³ 5 V.I.C. § 2550(d)
⁴ 5 V.I.C. § 2550(b)
⁵ 5 V.I.C. § 2550(f)

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; or
a biological grandparent of a child adopted by a step-parent or another relative.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 in filing the petition for visitation; 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 other factors as the judge may find appropriate or relevant to the petition for visitation.¹

¹ 16 V.I.C. § 605

Legal Information: U.S. Virgin Islands

Custody