Mom wants structured parenting agreement

Margarette
MACAULAY

Monday, January 21, 2019

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Dear Mrs Macaulay,
The father of my child and I have split and I would like for there to be some structure to our parenting arrangements, without having to go through the legal system. I want us to have a written agreement on who keeps the child, how often and for how long the other parent can/should visit, how much each contributes, and so on. We already have an informal system, but he has not been sticking to it, and I don't have the strength or desire to argue with this man anymore. I keep all my receipts and record all visits and so on, and e-mail him the monthly breakdown of expenses. But I want to protect myself should we ever have to go to court. Would an agreement outlining the agreed terms with both our signatures and the date suffice? Or would we need to have a lawyer do it, or have it witnessed by a JP? Is there a template of such a document that is used in the Jamaican legal system that I can access?

I am rather concerned that you say that you wish to have a written agreement with the father of your child specifying all the necessary terms for the custody, care, control, access and maintenance of your child, without “having to go through the legal system”. You also add that you do not have the strength or desire to argue with him anymore.

I am concerned because you have also stated that you and the father already have an informal system about these things, but that he has not been sticking to it. So I ask you, why do you think he will 'stick' to a written agreement? He has already demonstrated that he is not a man of his word. Why do you think he will stick to a document with his signature (which would also denote his word) instead?

Apart from the fact that you are tired of arguing with him, you also say that you wish to have the written agreement spelling out all the terms about the categories necessary for arrangements for the care, provision for, welfare and development of your child.

In my many years of experience practising family law, your experience with your child's father is a classic case for you to apply for legal orders which would bind him because if he breaches any of the orders he would suffer the legal consequences for having done so. In cases such as yours, you are merely postponing taking the sensible course of action and ultimately the financially better step.

You have asked, among other questions, whether an agreement containing all the agreed terms signed by you both and duly dated would be a valid. My answer to your questions is that you will need the services of a lawyer because any agreement you have would differ from a service or commercial agreement. Such an agreement dealing with the interests of a minor child is one which is taken very seriously in law. All adult persons having the legal capacity to understand the terms of a contract can agree by signing evidencing the fact of their agreement and that they are bound by them from the date of the agreement or from some other date specified in it. However, agreements of arrangements for the upbringing of a minor child have been put by legislation in a special category. The Maintenance Act requires that each parent must have independent legal advice before signing such an agreement and the lawyer must place and sign a certificate on or attached to the agreement that he or she explained the implications of the agreement to their respective client. It must be in writing and signed by both parties and their signing must be witnessed by a Justice of the Peace or an attorney-at-law. It is also provided that if these provisions are not complied with, the agreement will not be enforceable.

Though the provision in the Maintenance Act is said to apply to parties already married, or persons planning to marry, or those cohabiting, it is my view that though you do not fall within these categories, the courts will expect parents like you and your child's father to follow these dictates of the law for your agreement for your child's upbringing, in order to secure the principle of the best interests of the child.

In further answer to you questions, there is no template of such agreements. Each lawyer practising family law drafts such agreements to meet and cover the specific terms necessary to secure all that is necessary to fully protect the rights of each child, and the entitlements and the respective obligations and rights of each parent as agreed by them.

In your circumstances and for the best interests of your child, it is my view that you ought to go to the Family Court now and apply for orders for custody, care and control, maintenance, and specific and detailed orders for access to the father. This will save you money in the long run because from what you have said about the father, he is not someone who will abide by his word, however given. If and when he breaches your agreement, you will then have to take him to court for his breach of it and ask the court to make orders to enforce the terms of the agreement. You will have had to pay your respective lawyers for explaining the import of the terms of the agreement so that they are understood and for their respective certificates that this provision was met.

You therefore need the force of a legal order for which he will know that he can be arrested on a warrant and taken to court and sentenced to a term in jail if he breaches the order, for example, if he fails to make his ordered maintenance payments. This will also save you the aggravation of too many arguments as all you will need to do is remind him of the terms of the orders. Make sure that you get and serve on him a certified copy of the court order and keep your copy at hand for easy reference.

So go to the Family Court in your parish and proceed with your application. The proceedings are free and the clerk will assist you to draw up and file and effect service of your application. You need only to pay if you obtain the services of a lawyer to assist you for the hearings before the judge.

I hope I have assisted you about this most important decision for your child's future and for your peace of mind.

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 allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

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.


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