best interests of the child for us virgin islands

Under the US Virgin Islands Code, a rebuttable presumption that it is in the best interest of the child to reside with the parent who is not the perpetrator of domestic violence in the location of that parent’s choice, within or outside the territory or with a legal guardian is raised in cases where the court determines that domestic violence has occurred.

Also, once a parent has been convicted of the murder of the other parent, or when the child was conceived through rape, the presumption of parental unfitness shall apply.

Additionally, the court takes into consideration all other circumstances, as well as the findings of domestic abuse, in deciding which parent should have custody of the child or which party should see the child. The court shall consider each of the following: V.I. Code tit. 16, § 109

  1. The safety and well-being of the child and of the parent who is the victim of domestic violence.
  2. The perpetrator’s history of causing physical harm, bodily injury, assault, or causing reasonable fear of physical harm, bodily injury, or assault, to another person.
  3. If a parent is absent or relocates because of an act of domestic violence by the other parent, the absence or relocation may not be a factor that weighs against the parent in determining the custody or visitation.

James v. Faust Case

In a 2016 opinion, the Virgin Islands Supreme Court formally adopted the following factors to consider when determining the best interests of the child in the absence of family violence: James v. Faust, 65 V.I. 349

  1. The respective home environments;
  2. The ability of each parent to nurture the child;
  3. Whether either parent was guilty of any abuse or neglect;
  4. The interrelationship of the child to the parents and other individuals who were present in the home;
  5. The ability of the child to interrelate to siblings;
  6. The willingness of each parent to provide a stable home environment for the child;
  7. The findings of the guardian ad litem;
  8. The quality of the time that the child spends with each parent; and
  9. The effort put forth by the non-custodial parent.

However, the Superior Court did not provide sufficient reasoning as to how the evidence supported its findings of those factors. When the Superior Court fails to fully explain its rationale, substantial review is simply not possible.

Grandparent Visitation Rights

In order to ensure that the best interests of the child are served and that there is no interference with the parent-child relationship or with the parent’s lawful authority over the child, the court may allow a grandparent to have visitation or access rights to the child.

These criteria shall be applied by the court to take into consideration the following factors: V.I. Code tit. 16, § 605

  1. Whether such visitation would be in the best interest of the child;
  2. Whether such visitation would interfere with any parent-child relationship or with a parent’s authority over the child;
  3. The nature of the relationship between the grandparent and the minor child, including but not limited to, the frequency of contact, and whether the child has lived with the grandparent and length of time of such residence, and the motivation of the grandparent and capacity to give the child love, affection and guidance;
  4. Whether there is reasonable cause to believe that the child’s physical or emotional health would be endangered by such visitation or lack of it;
  5. 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;
  6. The age of the child;
  7. The circumstances that resulted in the absence of a nuclear family, whether by divorce, death, relinquishment or termination of parental rights, or other cause;
  8. The recommendation regarding visitation made by any guardian ad litem appointed for the child or by a child welfare agency;
  9. Any preference or wishes expressed by the child, if the child is of sufficient age and maturity to express a meaningful preference; and
  10. Any such other factors as the court may find appropriate or relevant to the petition for visitation.

It is possible that the grandparent will be recognized as having the same standing as a parent in determining what custody arrangements are in the best interests of the child if the child is actually residing with them in a stable relationship, regardless of whether the grandparent has been awarded custody or visitation. (See V.I. Code tit. 16, § 606(c))