Wife wants custody of husband's child

All Woman

DEAR MRS MACAULAY,

I've had my husband's child in my care from he was two weeks old and he is now 15. I would like to apply for legal custody or guardianship of him. How do I go about it?

You are clearly a very sensitive and caring person to have taken your husband's son really just after his birth. You're a truly forgiving and understanding person who put the interests of the baby before any feelings of hurt you must have been experiencing at the time.

I wonder, however, why you have waited so long to think of having legal custody of the child, who for all intents and purposes is your child. I assume that this may be because your marriage was fine during most of those 15 years, but it is not so now.

You ask how to go about getting legal custody or guardianship of the child. So let me go on and deal with this for you.

You should first understand that having legal custody will not suffice to give you care and control of the child. You must therefore prepare to apply for custody, and care and control of the child. Such an application would mean that you will have the rights to make all important decisions related to the child's upbringing and development by being the legal custodian. Having care and control would enable you to have the day-to-day care of the child and to have him live with you for the majority of the days of the year. You should also decide about the issue of what kind of access his father ought to have to him and this decision must be based on what would be in child's best interests to ensure that he is safe and not endangered at any time. As you have not made any reference to the kind of relationship which exists between father and son, you must consider this and decide what you think would be best for the child in this regard.

The issue of maintenance for the child must also be considered and you must resolve whether you need to apply for and obtain an order for the contribution of the father to his child's maintenance. You should work this out as accurately as you can and split it proportionally between you and his father based on your respective financial circumstances and existing obligations. You should take into account the cost for his shelter, be it rental or mortgage, utility costs including cable, cost of food, and general household expenses. If only you and he would be living together, then you should split the total cost for these items in two, so one-half would be the child's expenses for these. Then you must add to these the cost of his transportation, extra curricular activities and his hair grooming, general clothing, footwear and uniforms and school shoes. You must also add the costs of his sports clothing and footwear and any equipment, and you must also add the costs of his entertainment and for purchase of snacks. All these costs added together will be the sum you claim from the father in your application for his contribution to his son's maintenance. Please remember to insist that the application for maintenance also covers the years for university undergraduate studies or for technical training courses up to the age of 23 or the completion of his studies, whichever is sooner. There should also be an application for there to be annual increases of the father's maintenance contributions at a fixed percentage rate on the annual anniversary of the date of the order.

If the situation with your husband is such that he would agree to your application, you ought to try to obtain such an agreement from him so that the application would be a mere legal formality but with enforceable orders, as you will be making the application against him, the defendant. But even before you speak with your husband, you must first speak with the child and find out how he feels about what you wish to do. He is of an age that he must be asked, as the Child Care and Protection Act requires. When decisions affect the children their opinions can be sought and taken into account. You must do this and obtain his agreement with your plan. You will be asked about this and this should be settled first.

Anyway, let us say you have the child's agreement and whatever your husband's position is, you are now ready to make your application. You should then decide in which court you wish your application to be made. It could be either the Family Court which serves the parish in which you live, or the Supreme Court. I would suggest that you go to the Family Court because your application is likely to be dealt with and completed quicker than it would be in the Supreme Court. You must move as quickly as you can, as the boy is already 15 years old. Another thing to consider is that your attorney's fees for a Family Court application would be lower than that done in the Supreme Court.

You ought to obtain the services of a lawyer so that your application can be properly drafted, especially your affidavit in support of the application. It is vital that this be done really well as it must include all the necessary evidence to support your application and the reason why the orders should be made in your favour. In other words, it must, apart from relating how and why the child came into your care at two weeks old, and of the fact that you were his nurturer and took care of all his baby and childhood development, say why it is in his best interests for him to now be in your sole legal custody and care and control.

Please then try and retain the services of a lawyer as quickly as you can and speak with him or her about the applications I have suggested and between you both you can decide which court you would apply to and get on with it as quickly as you can. I wish you and the child the very best and happy lives together.

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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