U.S. Virgin Islands Custody

Custody

Basic info and definitions

What is custody?

Custody in the Virgin Islands is the right and responsibility to care for and control a child under the age of 18.¹ There are two types of custody, physical and legal.

Physical custody is the physical care and supervision of a child and the right to have the child live in the parent’s or caregiver’s home.² 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 is 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, the type of medical care the child receives, etc. A person with legal custody also has legal access to any documents for the child, including medical and school records.³

¹ 16 V.I.C. § 116(2)
² 16 V.I.C. § 116(14)
³ See Knoepfel v. Knoepfel, 2015 WL 1389806 (2015)

What is the difference between sole and joint custody?

Physical and legal custody can either be sole, where one parent has it alone, or joint, where it’s shared between the parents. Any combination of the two is possible. Parents or caregivers can have joint physical custody in which, for example, the child spends half the week at one person’s house and half the week at the other’s, or they can have joint legal custody in which they share decision-making responsibility for the child.

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’s or relative’s right to spend time with the child. Visitation can take place 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 judge could order supervised visitation if it’s necessary to protect the child.¹

¹ 16 V.I.C. § 109(d)(1)

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/territory, 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 paternity?

Paternity means being a child’s legal father and having the rights and responsibilities of a parent. If the parents aren’t married when a child is born, paternity will need to be determined (established) before or during a child support, custody, or visitation case.¹

¹ See 16 V.I.C. § 297

How is paternity established?

There are four main ways to establish paternity:

Marriage- Paternity is automatically established if parents are married when their child is conceived or born. The law assumes the mother’s spouse is the child’s legal parent. The parents don’t have to take extra steps unless they want someone else to be the legal father.¹ However, if the parents marry after their child is born, they need to file an acknowledgment of paternity unless they already filed one before getting married.²
Acknowledgment of paternity- An “acknowledgment of paternity” is an official form parents can use to agree that someone is a child’s father.³ It is also called an “affidavit of paternity.”⁴ Both parents need to sign the form in front of a notary.⁵ This can be done at the hospital or birthing center when the child is born or later at another location. The signed form must be filed with the Department of Health, Office of Vital Statistics within 30 days.⁶
Court case- Paternity can be decided in court.⁷ If there is disagreement about who the father is, the judge will order a DNA test (genetic testing) to confirm the biological father.⁸ A paternity case can be started by:

the child’s mother;
a man claiming to be the child’s father; or
someone else with legal custody of the child (legal custodian).⁸

Administrative process- The government’s Paternity and Child Support Division can help establish paternity. The child’s mother, father, or legal custodian can apply for paternity and child support services. Or, if the child receives public assistance, the case may be referred automatically for these services.⁹

¹ 19 V.I.C. § 833(a)
² 16 V.I.C. § 296; 19 V.I.C. § 833(b)
³ 16 V.I.C. § 292(a)
⁴ 16 V.I.C. § 291(b)
⁵ 16 V.I.C. § 292(a)(4)
⁶ 16 V.I.C. § 292(b), (c)
⁷ 16 V.I.C. § 293
⁸ 16 V.I.C. § 293(f)
⁹ 16 V.I.C. § 293(a)
¹⁰ 16 V.I.C. § 293; Department of Justice’s Paternity and Child Support website

Who can get custody or visitation

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

The custody process

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

Steps to file for custody

Considerations before filing

Before you file for custody, you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole custody may be in court for months or even years. And they may still end up with some sort of joint custody order after a settlement or trial.

However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.

Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.

You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page.

In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and territory, you may want to contact a local lawyer.

Step 1: Prepare for the case

Learn about what types of custody are available and how domestic violence might affect custody in your territory. Think about what you will ask for, what would be best for your child, and what would be safest for both of you.

You can prepare for court by gathering evidence that helps explain why you should have custody. Your evidence should relate to the “best interest factors” that a judge looks at to determine what’s best for your child. You can see What factors will a judge consider when deciding custody? for more information.

Custody cases are complicated, so you may want to get a lawyer. If you can hire someone, you can use this list of questions as your guide when deciding which lawyer to choose. If you can’t hire a lawyer, you may at least want to try getting a free or low-cost consultation to help you make a legal strategy for your case.

Step 2: File and serve the custody petition

The legal paperwork that starts a custody case is called a petition. You may file your custody petition 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.

The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.

If you and the other parent are…	Then you can usually file for custody in…
married and getting divorced	the divorce case.
married but not divorcing	a separate custody petition.
not married	a separate custody petition, but legal fatherhood (paternity) may need to be established first or during the custody case.

Sometimes, non-parents can also file for custody or visitation rights. To find out about filing for visitation as a grandparent, go to When can a grandparent file a petition for visitation rights? or talk to a lawyer.

The custody petition forms you need will be available at your local courthouse. Many forms are also available online. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our U.S. Virgin Islands Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

Depending on what’s going on with the child and the other parent, you may be able to ask for an emergency or temporary custody order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for a restraining order and get temporary custody as part of the restraining order.

After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your territory.

Step 3: Preliminary court dates

The next step in the custody process is to have “preliminary” court dates. Preliminary means introductory or preparatory. These might have a different name in your territory, such as “first appearance,” “status conference,” or something else. They are when certain issues can be dealt with in the early stages of the case. Some of the issues that might be dealt with are:

problems with service of process;
referrals to mediation;
temporary custody and visitation orders; and
pretrial motions.

During this stage, the judge will often give temporary custody and visitation orders that last while the case continues. In some cases, the judge may assign a guardian ad litem or an attorney for the child.

For more information to help you prepare for the preliminary court dates, go to The first appearance in our Before the Trial section.

Step 4: Reach an agreement or go to trial

There are two different ways that you might be able to get a final custody order – by coming to an agreement, or by going to trial.

Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.

Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.

Step 5: Options if you disagree with the order

If you disagree with the judge’s order, there are a couple of legal actions you would need to file right away, such as a motion for reconsideration or an appeal.

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 to a judge’s error.

Each state or territory has a set time limit to file these actions, usually ranging from 10 to 60 days. To know your case’s exact timeframe, you should ask a local attorney.

You might also be able to ask the judge to change your order in the future if there is a “substantial change of circumstances” after the case is decided. You can do this by filing a motion or petition to change (modify) the order. However, usually, this can only be filed under certain circumstances. Here are a few examples of events that might be considered substantial changes in circumstances:

The other parent gets sent to jail or charged with child abuse or neglect;
The other parent is not following the custody and visitation order; or
Your child’s needs change in a big way.

After a custody order is in place

How can I change my custody order?

You can file a motion asking the judge to change (modify) your custody order.¹ To get the judge to agree to change a final custody order, you need to show that:

there has been a change in circumstances since your order was given;
the change in circumstances is “substantial and continuing”; and
changing the custody order in the way you want would be in the child’s best interests.²

¹16 V.I.C. § 110
² Rogers v. Rogers, No. 153-77, 1977 WL 425576 (Terr. V.I. Sept. 21, 1977)

If I move to a new state, can I transfer my child custody case there?

After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.

Legal Information: U.S. Virgin Islands