Dear Mrs Macaulay,

I have a court order which grants me custody, care, and control, and the father of my child overseas residential visits in the summer and every other Christmas. We don’t have a cordial relationship and things are still contentious, so much so that at the last court date the judge just made the order because we couldn’t agree on anything. The problem is that with COVID, I can’t foresee my child travelling this summer, and even with the borders closed, the father is insisting that he has to buy a ticket and that our son must travel. He said if I don’t comply and advise him of the dates when our son will travel, he will cite me for contempt and request jail time for me, and full custody to him. What can I do in this circumstance, as even with the borders reopening, I will be scared to have my son, who is just seven, travel this year.

It seems to me that your decision is clearly in the best interests of your son. The Child Care and Protection Act, 2004, provides that several factors are to be considered when deciding what is in the best interests of any child, and the first stated in the Act is “the safety of the child”.

In the situation where no vaccine has been created, and fully tested and determined to be safe and effective to protect people from being infected by the virus, it would, I am sure, be deemed clear that your decision that the child does not travel during his summer school holiday period this year is eminently in his best interests, and legally within your right to determine as the legal custodial parent. As such, you must do all in your power to ensure that your son’s best interests are the paramount consideration at all times.

The Act also provides that your child is entitled to be protected from abuse, neglect, and harm or threat of harm. It is evident to all responsible and thinking individuals that all humans are presently still living with the threat of harm by being infected with the virus, especially as it has scientifically and medically been proven that some people are asymptomatic and can infect others whom they are in close contact with — like within airplanes. Since they exhibit no symptoms of the virus, even they themselves and others will have no suspicion that they are by their very presence dangerous and possibly lethal to be in the same confined space as others.

The threats of your son’s father to pressure you to permit your son to travel this summer are all worthless and mere hot air. It is your duty as the custodial parent with care and control to protect your child from any threat of harm, and ensure that he is safe at all times.

His threat to cite you for contempt is not for him to do — only a court can cite a person for contempt. A party in a matter can apply to the court that the other party be cited for contempt and the court must hear such an application fully and determine whether or not to act. I am sure that because of the present situation with COVID-19 and your legal duty to act in your child’s best interests, no court would accede to any application like that.

His threat that he will request jail time for you is also nonsense. No court would order the incarceration of any parent who was acting in the best interest of their child. In fact, the father’s suitability to have residential access, especially abroad, would in such circumstances be brought into question, and he may lose this. So his threat of applying for full custody of the child would be groundless and in fact an abuse of the court, as your response that you were acting in the best interests of your son can easily be understood and accepted. His insistence that he is going to buy your child’s ticket for him to travel regardless of the present circumstances is irresponsible to say the least, and selfishly self-centred instead of putting his son’s best interests before his own desires.

If you are still nervous about just informing the father in writing that as the legal custodial parent you have decided that it is not safe for a seven-year-old boy to travel this summer, and that the issue of his Christmas access will have to be reassessed nearer that time, as staying within the borders of Jamaica is in your view in the best interests of your child, you can make an urgent application to the court where your orders were made for directions on whether you can keep the child here over the summer. You can in fact also apply to the court for the father’s access order to be varied to one where his residential access abroad is suspended until it is scientifically and medically declared safe for the child to travel. The father can have access to him here in Jamaica where it can be ascertained that he is keeping up all necessary precautions for his and the child’s safety, as there can be no guarantee that safety precautions for the child will be continuously adhered to during the flights to and from, and while he is at his father’s home. You can also ask the court to satisfy itself of the conditions in each of your homes and of the conditions in place to ensure the child’s safety and therefore his best interests.

I trust that I have assisted you in evaluating the father’s legal position and yours vis-a-vis your child’s best interests, and that you have the right to make decisions about your child’s welfare and best interests. You have the primary duty in having legal custody and care and control of your child to make decisions and ensure his best interests at all times.

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.