What is Custody?

Custody in the Virgin Islands is the right and responsibility to care for and control a child.  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 (which are explained below) Any person wishing to obtain physical or legal custody of a child must file a custody petition with the Superior Court.    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.   There are two types of custody, physical and legal. 

Physical Custody is the right to have the child live in the parent's or caregiver's home.  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, etc.  A person with legal custody also has legal access to any documents for the child, including medical and school records, and has control of a child's assets.

Visitation Visitation is a parent or relative's right to spend time with the child.  Visitation can occur 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.   In extreme cases, where the person is not considered trustworthy to visit the child without supervision, the court will order supervised visitation.  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.

How Do I Obtain Custody from the Court? In order to obtain a custody order, a person must file a petition for custody with the 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.  

What is Jurisdiction? Jurisdiction is the authority of a court to decide who should have custody.  Typically the Virgin Islands courts will have jurisdiction if the child has lived in the Virgin Islands for six months or longer before the case is filed.  However there are exceptions such as if the child is kidnapped and taken to another state or territory or the child is in immediate danger.  

How Does the Court Determine Which Parent Gets Custody? When deciding custody, a court looks at the "best interests of the child."  Determining the "best interests" of children is a difficult task.  Courts in the Virgin Islands will examine a number of factors to decide which parent or person should receive custody.  A parent will typically be given preference over a non-parental caregiver.  The court will also consider the following:  

•The age of the child

•The length of time the child has lived with a person

•Who has cared for the child in the past

•The person's capacity for supervision and training

•The person's desire for custody

•The child's preferences (depending on age)

•The condition of the person's home

•The time the person can spend with the child per day

•The person's criminal record and whether they have committed domestic violence or abused the child  

Sole legal vs. Joint Custody Physical and legal custody can either be sole or shared.  The description of this authority is sole custody or joint.  Any combination of the two is possible.  Parents or caregivers can have joint physical custody (for example the child spends half the week at one person's house and half the week at the other) or have joint legal custody.

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.  

Can I Obtain 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 person 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 court may grant custody, child support, and determine visitation for a period of time up to 24 months.     

Custody and Child Support

Child support is money paid by the non-custodial parent to the parent or caretaker with physical custody.  This money assists with the costs of care for the child.  The custodial parent may apply for child support without a court order or an agreement establishing custody.  A person interested in seeking child support should contact the Department of Justice, Division of Paternity and Child Support (P&CS).   

Who Determines Child Support?

Typically P&CS will determine child support in-house, with an administrative law judge.  Sometimes the Family Court judge will set child support.  The amount is determined by assessing the "available income" (monthly gross income minus income tax, FICA, union dues and mandatory retirement).  The non-custodial parent will pay a percentage of the "available income" depending on the number of children the person has.  A parent with one child of the same mother will pay 15%, two children 20%, three children 25%, etc.  If a parent is already paying child support for children by another person, the amount will be less.  

When Should I File for Child Support?

The person seeking child support should file an application with P&CS as soon as possible.  Child support is determined from the date the application is accepted by P&CS.  The non-custodial parent is not responsible for child support until an application is accepted.  Child support debts are not subject to statute of limitations.  In other words, the debt will not disappear, it is always collectable no matter how much time passes from the child support order.  P&CS will assist custodial parents in obtaining past due child support, but a child support order must have been made.    

Parental Kidnapping

Unfortunately, parental kidnapping is not uncommon in child custody disputes.  Every year thousands of children are kidnapped in the U.S. Often the abductor will prevent contact between the child and the other parent.  Often the abductor will tell the child that the other parent does not love or want the child. 

Parental kidnapping is extremely disruptive for a child and is a form of domestic violence.     In order to control this crime, the federal government passed the Uniform Child Custody Jurisdiction Act, Parental Kidnapping Prevention Act, Missing Children Act, and International Parental Kidnapping Crime Act.  Additionally, all 50 states and some territories passed local laws making parental kidnapping or custodial interference a crime. 

Currently the Virgin Islands does not have a parental kidnapping law, but the federal laws still apply.  

How Do I Know if My Child is in Danger of Kidnapping?

It is difficult to determine if a child is in danger of parental kidnapping.  The likelihood of an abduction may be increased if there is evidence that the parent has:  

•   Previously abducted the child or threatened to do so

•  No strong ties to the child's home jurisdiction

•   A prior criminal record

•   Friends or family living out of state or abroad

•   Recently quit a job, sold a house or terminated a lease

•   A history of instability or domestic violence in the relationship.  

If the parent has one or more of these indicators, they may be more likely to commit an abduction.  If you are concerned your child may be abducted, contact an attorney.  

What Should I Do if My Child is Taken?

If your child is kidnapped, immediately file a missing persons report with the police.  Also contact the National Center for Missing and Exploited children at 1-800-THE-LOST.  This organization has counselors who can assist you with the legal and emotional issues.  Also you should contact an attorney.     

Call These Numbers for Assistance

Virgin Islands Police Department * St. Croix: C'sted 773-2530, F'sted 772-2800, Villa La Reine 778-9757 * St. Thomas 774-2211 * St. John 693-8880  

National Center for Missing and Exploited Children * 1-800-THE-LOST (1-800-843-5678) for abducted children  

Victim's Advocate Organizations

* Woman's Coalition, St. Croix Call 773-9272 available 24 hours

* Family Resource Center, St. Thomas Call 776-STOP (7867) available 24 hours

* Safety Zone, St. John Call 693-SAFE (7233) available 24 hours

* Victim's Advocates Program, St. Thomas Call 775-6103   Emergency Rooms/Clinics * St. Croix, 778-6311, ext. 2665 or 922 * St. Thomas, 776-8311 * St. John, 693-8900  

Virgin Islands Bar Association * 778-7497   Superior Courts * St. Croix, 778-9750 * St. Thomas, 774-6680  

Dept. of Justice, Division of Paternity and Child Support * St. Croix, 773-0295 * St. Thomas 774-5666  

Legal Services of the Virgin Islands, Inc. * St. Croix, 773-2626 * St. Thomas and St. John, 774-6720  

Child Custody in the Virgin Islands A Guide Prepared By: Legal Services of the Virgin Islands, Inc. 3017 Estate Orange Grove, St. Croix, VI 00820 57 Dronningens Gade, St. Thomas, VI 00802

Paid for by grant no. VAWA-96-WF-NX-0078