Dear Mrs Macaulay,

My brother has a daughter in Jamaica and he tries to be very active in her life, but the mother makes it very difficult for him to do so. She has caused many problems for our family.

She belittles him because he is not working. Our family has provided some support for him and the child.

My brother has now migrated to the US. My mother lives in Jamaica and she actively tries to be in her grandchild’s life, but the mother refuses to let that happen.

We really don’t understand why she and her family have this negative attitude towards us. We’ve tried setting up counsellors to talk with her, but she still denies us any access to my niece.

It has been very difficult for my brother. This is his first child, and the fact that his daughter cannot be part of his life creates an emotional strain for him.

Is there any legal advice you could give us so we can get some type of custody of my niece?

These situations are so heartbreaking. One would think that the older I get, and with all my experience, I would be used to the cruel decisions and actions taken against children by mothers, fathers, husbands, wives, and other family members. These people have no idea of the adverse effects of their actions on the very children they would swear that they love.

This is a selfish and inconsiderate kind of love. These people are certainly not acting in the best interests of the child.

I should point out that the Child Care and Protection Act enjoins that any decision which would affect a child’s rights must get and give due regard to the child’s opinion about the matter.

This leads me to the actual position of their misconception of their ‘right’. They have absolutely no right to keep the child from knowing and having a relationship with her father and her paternal family. The child possesses this right, and they have an obligation to give it effect, not to prevent it. The father also has the right of access to his child, just as his family does. His right does not depend on provision of support, though there is the legal obligation on him to provide. From what you say, while he was not working, your family supported him and his child. This is what a real family does.

You say that he is now settled in the United States of America and that your mother, who still resides in Jamaica and who had a relationship with the child, is being prevented from continuing her role as grandparent to her grandchild.

So, what can be done? She should continue her efforts and your brother should continue, through her, to provide for the child. She must keep a record of the sums paid over, and when, and to whom given. Then your brother and your mother should retain the services of an attorney-at-law to apply on his behalf for joint custody of his child with the mother.

So, all main decisions for her upbringing must be made with his input in conjunction with the mother. If she acts contrary to such an order, she would be acting in contempt of such a court order.

In addition, on the father’s behalf should be added his application for access, which can be done via the Internet, plus regular phone calls and that his daughter should spend one-half of her summer holidays with him annually.

For your mother, and with your brother’s acquiescence and joinder, the application should be for access. That is to say, for one-half of the other two major school holidays to be spent with her as well as alternative weekends. Or, your brother can make the whole application for joint custody with access of one-half major school holidays and alternative residential to him and that the long summer one be with him in the USA and the rest with his mother in Jamaica.

The attorney-at-law retained would need to get more details than you have given to me for a decision as to which of the above paths to take. The fact that your brother is now in the States does not deprive him of his paternal rights or his right to apply to the court (Supreme Court or Family Court) for orders for him and his mother to be granted them. Such orders are made every day. You and your family must act as soon as possible in this regard, and the court will make the orders necessary to uphold your niece’s right of access to her father and paternal relatives, who have shown their interest and willingness to be in the child’s life, which would be in the best interests of the child.

So, please get on with legal representation as soon as you can. Please accept my best wishes to you all, and my hope for success to your brother and mother with their applications.

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.