As a family law practitioner in the Territory, I have found all too often that when looking to the Virgin Islands Code for specific guidelines, procedures and criteria to assist in proceeding in various domestic matters, that our local family code of laws leaves much room for improvement.
On June 24, 2010, the Virgin Islands Supreme Court in Madir v. Daniel (S.Ct. Civ. No. 2008-0012) took a step in the right direction by setting forth a precedential opinion which requires Virgin Islands courts to utilize the "best interests of the child" standard when making an original child custody determination between the child’s parents.
The majority of jurisdictions in the United States have specifically enacted laws which require courts to consider the "best interests of the child." In fact, many jurisdictions go even further and set forth specific factors that a court should consider in making such best interest determination. Yet the V.I. Code fails to set forth any provision addressing the standard that a Court should apply in making a child custody determination.
In Madir v. Daniel, the Virgin Islands Supreme Court considered:
- the respective home environments of each parent;
- the ability of each parent to nurture the child;
- whether either parent was guilty of any abuse of neglect;
- the interrelationship of the child to the parents and other individuals who were present in the home;
- the ability of the child to interrelate to siblings;and
- the willingness of each parent to provide a stable home environment for the child.
However, the mother in Madir v. Daniel appealed the Virgin Islands Superior Court’s decision to grant physical custody to the father and argued among other things that the Superior Court abused its discretion because it did not consider numerous other factors, including the age and sex of the child, the mental and physical health of the child and the parents, the parents' lifestyle, the emotional ties between the parents and the child, the child’s ties to the school, home and the community, the parent’s ability to support the child, and the child’s preferences.
The Virgin Isalnds Supreme Court ultimately decided that while it would encourage judges to take account of all relevant consideration, that the lower court did not abuse its discretion in limiting its evaluation of the "best interests of the child" to the factors which it considered. And in a footnote in Madir v. Daniel, the Virgin Islands Supreme Court noted that it has intentionally forgone setting forth the defining criteria for determining the best interests as it believes that such is “best left to the Legislature.”
It is my hope that the Madir v. Daniel decision will prompt the 29th Legislature to reform and improvement to the Virgin Isalnds Family Code. A carefully drafted provision setting forth structured decision making criteria which a judge must consider in determining the "best interests of a child" in a child custody matter will limit judicial discretion thereby ensuring greater uniformity, and will further ensure that the values which our society deems important to children and families are furthered.