Dear Mrs Macaulay,
I am seeking some advice for a male friend of mine. He had a relationship with a young lady which produced a child. They have been living together for five months now. He has been maintaining the mother and his son as she is unemployed. He wants to leave because of her behaviour (cursing and smoking around the baby) and including the fact that he does not see her fit to take care of the baby when they part. He now wants to apply to the courts to gain full custody of the child and wants to know the steps he should take in doing so. He also wants to know if the court will order a DNA to prove paternity of the child to gain custody.
The answers to your questions are as follows:-
1. He must have available his son's birth certificate, as this has to be taken to the court's office when he goes to apply for custody;
2. He can then go to the Family Court which serves the parish in which he resides and make his application. He should tell the clerk at the court's office that he has come to make an application for sole custody and care and control of his son.
3. He will be assisted in doing so by an intake officer, who will take down the facts from him and the grounds (reasons) he has and will be relying on to satisfy the judge of the court that he ought to be granted sole custody and care and control of his son.
4. After he has signed the relevant documents he will be informed when the summons and his affidavit in support of his application will be ready for service on the mother, with the hearing date endorsed on it. He will be asked whether he will arrange for her to be served (he cannot do so himself), or whether he wishes one of the court bailiffs to effect the service for him. I suggest that he chooses the latter as the court bailiff knows exactly how to serve a defendant and to complete and depose to the facts of the service and submit it to the court for use at the hearing on the date fixed for this. All these acts by the court staff are free of any charge.
5. In relation to a DNA test, if his name and particulars are on his son's birth certificate, no DNA test will be ordered as he would have admitted paternity by his having provided these. But he can ask that a DNA test be done if he wants to be certain that he is in fact the true biological father of the child. If his particulars are not in the birth records, he should apply also for a declaration of paternity and for this he would need to have the DNA test done, so the court can act with certainty in making its declaration and orders on the basis that he is truly the father and make the declaration of paternity first and then (in the same hearing) deal with his application for custody, care and control of the child.
Your friend must be commended for taking the position that he has, as this is in the best interests of his child. No one should be smoking cigarettes of any kind around anyone else, nay more a baby. This being done by the mother is predicated to cause injury to her baby son's physical health. Her cursing will also have adverse effects on her son's development and future life which may cause him emotional and psychological harm. Children assimilate good and bad speech and conduct from their parents and others who care for them and spend time with them. Such conduct when reproduced by the child to others, as they would definitely do, will cause them to be judged in either a complimentary or non-complimentary way and they will be treated accordingly. So if the child adopts his mother's habit of cursing, he will, I am sure, suffer adverse consequences for such behaviour in school, church and socially, which must affect him psychologically and emotionally, for something which was not his fault but that of his mother.
Anyway, whether his name and particulars are in his child's birth records or not, he should go to the Family Court and get their assistance to apply for a declaration of paternity if they are not in the record, plus for him to be granted sole custody and care and control of his child. You see, he can have custody, which enables him to make all important decisions about the life of the child; and care and control which enables him to have the child in his home and day-to-day care. He should also enable the mother to have access to her child, which can be supervised or unsupervised. The court could decide to grant joint custody to both parents, but your friend must fight hard to get the care and control order so he can control how his son grows up each day.
Your friend is clearly maintaining the mother of his child. He is not obligated to do so in law as they are not common-law spouses having only lived together for five months (they must continuously live together as man and wife for five years and be single throughout this period to be able to get a declaration of being such spouses). So it is up to him if he continues to assist her after he ends her residence in his home until she finds employment which she should be encouraged to do in her own best interest.
I hope your friend can now be clear about the steps he can take to apply for sole custody and care and control of his son. He can, of course, retain a lawyer to assist him with the process, if he can afford to do so. I wish him and his son the very best and that the mother tries to give up her bad habits and stops endangering her health and that of others by her smoking.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to email@example.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.