Dear Mrs Macaulay,
My daughter is a few months shy of being 12. The last time I saw her dad was eight years ago. He contacted me once five years ago to question my being pregnant with my second child. Since then, I have neither seen nor heard from him. I have no contact for him and do not know where he resides or even if he’s alive. We broke up when my daughter was only two years old and since then he has provided no financial support or shown any interest in her or her well-being.
She has resided with me and has been cared for by me financially and otherwise all her life. Do I have to go to court to apply for sole legal custody of her? I’ve been told that I need to have this on paper to prevent him from having access to her should he so desire. My husband worries that should something happen to me, the father might come back and take her away from him. My daughter does not have any relationship with her dad, but has a very healthy relationship with her stepfather. This would rip his heart out especially because my daughter would not grow up with her younger siblings who she adores.
Finally, I plan on applying for a US visitors visa for my daughter. Do I need any legal paperwork to do so? Her dad held a green card when we were together. I don’t know if he’s now a citizen or even if he lives there. Could this affect the application?
You do not mention if the father ever sought to have access with his daughter but from what you say, it seems he has abandoned or deserted her. As such, you should apply for legal custody, because even though he has abandoned her for so long, he may appear like a bad penny and apply for custody or for access. If he does that, you will be placed in the defensive position of arguing against his claim for access.
Such an application by him would not surprise me, as he was the type who dared to question your right to become pregnant with your second child, having completely abandoned his own child. He may make an application just to cause you grief and punish you. He, from what you say, clearly does not care about his child, but I know of such applications being made just for the purpose of causing pain and giving trouble to the custodial parent.
So you must apply for the sole custody, care and control of your daughter. Since you do not know where he is, exactly, you will have to apply for substituted service by way of advertisements for the number of times and in the newspaper publication ordered by the court.
Even though he has a right to apply for custody, care and control just as you have, because of his conduct, he will not have any chance of succeeding in any court which properly has regard to the principle of the welfare of the child. The best interests of the child is the first and paramount consideration when considering this issue and in whose favour such an order ought to be made. This is clearly stated in the Children (Guardianship and Custody) Act.
For your application for custody, care and control, you can, in your affidavit in support, show that by his lack of interest and complete failure to make contact, he has in fact abandoned or deserted her and that it would be against her best interests for him to even have access to her. You must also depone to the fact of the close relationship she has with your husband, also that he has in point of fact been her father all the days of the years you have been together, and so it would be cruel and abusive to separate them.
Of course her close, loving relationship with her siblings must also be related by you in your affidavit and you must conclude that it would be emotionally destructive for her not to continue to grow up with her siblings and that it is in fact in her best interests to do so rather than be forced to spend time with a disinterested stranger, who happens to be her biological father but no more than that. There is case law to support this conclusion.
As to your husband’s concern about what would happen if something happens to you, you can in your application apply for sole legal custody and for care and control to you and your husband. You must also, as soon as you can, have your will drawn up and executed. In it you must appoint your husband as your daughter’s guardian with care and control and state why her biological father should not be permitted to upset such an appointment which you are making to ensure your daughter’s best interests.
After you have done your applications for custody, care and control, and your will, you and your husband should consider whether you should contact the Adoption Board and start the process for him to adopt your daughter as his child. This may be difficult as you do not know how to contact her biological father, but if the court has determined that he has abandoned her, then this will help with the adoption application process.
As to your other question yes, you need legal paper work. If you have your order for sole legal custody, her biological father, whatever his status, will have no say in the matter of your application for a visa for her, because you will have the sole parental legal right to make such an application.
I hope I have made the situation clear for you and your husband. Remember, bad pennies like this child’s father tend to turn up when you least expect them to do so.
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.