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)

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)

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

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)

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:

1. the abuser has abandoned the child;
2. the abuser has not cooperated with the Department of Human Services’ efforts to reunite parent and child;
3. 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;
4. 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;
5. the abuser has been convicted of the intentional and wrongful death of the child’s other parent or legal guardian;
6. the abuser is unable to parent the child because of:
   
   1. emotional or mental illness; or
   2. drug or alcohol abuse;
7. the abuser does not want, or cannot have, legal and physical custody of the child;
8. the child would be in danger of substantial physical or emotional harm if placed with the abuser; or
9. 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:

1. the child has been in a placement out of the home for 15 of the 22 most recent months;
2. 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;
3. the judge decides that the abuser has abused or neglected the child two or more times; or
4. 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)

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

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:

1. 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.
2. 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.

3. 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.

4. 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.

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)

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)

Es posible que en algún momento se mude con sus hijos/as del estado donde se dio la orden final de custodia. Para información sobre cómo solicitar que se transfiera el caso de custodia a un nuevo estado, por favor vaya a Transferir un caso de custodia a un estado diferente, en nuestra página general de Custodia. Sin embargo, es importante tener en cuenta que es probable que necesite obtener permiso de la corte o de el/la otro/a padre/madre para mudarse de estado. Por favor hable con un/a abogado/a para asegurarse que sus planes de mudanza no violen su orden de custodia o las leyes de secuestro parental de su estado.