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EspañolWhat 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
