Dear Mrs Macaulay,

I have been raising my daughter by myself since birth. She is now six. Her dad is married, with his own family, and has never been involved, even financially. A few months ago I got the opportunity to work overseas, and left my daughter in my mom’s custody. Shortly after, her dad, who had not been in her life, showed up to my parents’ house and they allowed him to take her out. He visited a few times, then they allowed a weekend visit with him and his family, and he has not returned her. He has told me that since I am not in Jamaica, it’s only right that he, the other parent, take care of our child until I return. I am not in agreement with this, because I don’t know his wife or family, or if my child is being mistreated. The authorities that I have called refuse to help. What can I do? I have four more months left on my work contract and can’t return to Jamaica until then.

It always confounds me why mothers in your position fail abysmally to protect their children from selfish, irresponsible and disinterested fathers, who have made it clear from the births of the children (and some from before the births) that they are not interested in the children at all, and make absolutely no provision for them. And yet the mothers make no attempt to apply for sole legal custody and care and control, to ensure that they, and only they, have the legal right to have the children live with them, or with periodic guardians when their occupations make it necessary for them to be absent for a period of time.

You see, when a mother has applied for and has been granted orders of sole legal custody and care and control of her child, a deadbeat father cannot just go and get and keep the child without making an application to the court, for the existing order to be varied to grant him joint custody with the mother and for fixed periods of access. He would have to convince the court that such a variation would be in the best interests of the child. This is the law when the mother has the legal orders I have stated, because in such circumstances, if the father acts as this man has done, he would be in breach of the mother’s order and could be arrested on a warrant and if considered necessary, imprisoned or fined.

But when neither mother nor father has an existing sole custody order, then the law is that both have the same powers to apply to the court for orders with regard to any matter which affects the child. Neither parent has more rights to apply than the other, according to the Children (Guardianship and Custody) Act. However, on the hearing of any such application, the judge applying the principle of “the best interests of the child”, upon considering the evidence proffered by both parties in support of their application, should determine who would best secure the child’s wholesome welfare and development and order care and control to such a parent and periodic and specific access to the other. The judge must also decide whether the grant of custody should be sole or joint — all based on the principle of the best interests of the child.

In your situation, you had de facto custody of your child due to her father’s disinterest. But this man who had not sought to meet and know his daughter for six years, had the gumption to say that since you are abroad, it was only right that he (a stranger to your child) as the other parent should take care of her until your return.

You say that you have received no assistance from any of the authorities you contacted. No doubt, their position was that he is the father and he has the right to have his child.

So what should you do? In my opinion, you should first write to him, stating what your mother informed you happened. Explain that though he had failed to act in any way as her father for six years of her life, that you would have wished for your daughter’s emotional stability that he had acted otherwise and discussed this with you as he and his family are strangers to her. Explain that without proper arrangements, he just kept her from your parents’ home where she had stability and trust and loving care, and inserted her into his family (who are completely unknown to you) and his home. You must make it clear that your mother and father must be able to spend some time with her during the duration of your contract. Be courteous in the letter, but be firm about the fact that as he told your parents, this was only until you return.

It seems that her schooling must also have been disrupted, and if so, this must be mentioned. Also, note the importance of her continuing to see her own doctor, which is important for her health. And explain that you expect to have your daughter back with you as soon as you return, and that thereafter, his access to her can be arranged by you both.

You should be firm and state the facts clearly, but do not abuse and antagonise him.

Then, you must retain the services of a lawyer experienced in child law, to act for you and prepare your application for legal custody, care and control and maintenance (which must include his contribution for all the costs of your confinement and the six years of her life and continuing), and access in specific terms to him. You cannot ignore his parental rights and obligations now, but embrace them as is recognised by the law. With your lawyer’s assistance, you can make sure that you get to know the persons who make up his family and place of residence. Your lawyer can file your applications to be heard shortly after your return.

Please note that if he files before you return, he must serve you the application in order to obtain a binding order, but if he misleads the court that you were served when you were not, then you can apply for such an order to be struck out on the basis that it was obtained by fraud and is an abuse of the court.

Anyway, your lawyer can apply, whilst you are abroad, for you to appear and be heard by video conferencing. But I advise that you make your application for the orders I have mentioned, even if he applies first. Remember, you can effectively contest any application he makes for custody and care and control of your child on the basis of non-presence for six years of her life, and that he only made himself known to her when you were not in the island, and took her from her grandparents who were well known to her, who love her, and were caring for her on your behalf until your return at the end of your contract.

I wish you and your child and your parents the very best.

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.