What are the factors that the court considers while determining the custody of the child?

Full question:

I live in Virgin Islands with my daughter who is 10 years old. I have been physically abused by my husband for a couple of months. I want to live away from my husband and file for divorce. I would like to know what are the factors that the court will consider in determining the custody of the child under these circumstances?

• Category: Divorce
• Subcategory: Child Custody
• Date: 04/07/2025
• State: National

Answer:

The court awards custody of minor children as it may deem just and proper, taking into consideration the age and sex of such children and the needs and welfare of such children. When the court finds domestic violence, the custody and visitation of the child shall be determined by considering the safety and well-being of the child, perpetrator’s history of causing physical harm, bodily injury, assault or causing reasonable fear of physical harm, bodily injury or assault to another person. However, if the parent is absent or relocates because of domestic violence by the other parent, relocation or absence may not be a factor that would weigh against the parent to determine the custody or visitation of the child.

This is provided in V.I.C. §109. It reads:

“(a) Whenever a marriage is declared void or dissolved the court may, without regard to any determination that the breakdown of the marriage was the fault of one party or the other, further decree:
(1) for the future care and custody of minor children of the marriage as it may deem just and proper, having due regard to the age and sex of such children and giving primary consideration to the needs and welfare of such children;
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(b) Determination raises rebuttable presumption that child reside with parent not perpetrator or legal guardian. In determining the future care and custody of minor children under subsection (a), a determination by the court that the domestic violence has occurred raises 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. This presumption shall also apply when a parent has been convicted for the death of the other parent, or when the child has been conceived by rape.

(c) Factors court must consider.
In addition to the other factors that the court considers in determining the custody of a child or visitation by a parent, and where the court has made a finding of domestic violence, the court shall consider each of the following:
     (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.
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