Mom wants full custody

Dear Mrs Macaulay,

I want full custody of my five-year-old daughter, and want to change her name, because my ex has a history of alcohol and drug abuse. However, he is fighting for joint custody. We have a court date in September and I just want to cut all ties. What factors will the court consider in deciding custody, and what can I do to strengthen my case?

I understand why you feel the way that you do about your ex and the father of your child.   But what you are hoping to do in changing her name and cutting all ties with him, is very drastic.

You say that this is because he has a history of alcohol and drug abuse.   Do you mean that he was addicted to both in the past and that he is no longer addicted presently?  If this is the case, and depending on how long he has been clean, then this might not be a serious enough reason for a court to accept your evidence of this past fact and grant you the necessary orders you wish to have.

If, however,  he is still abusing both alcohol and drugs, and you can prove this fact in your evidence, and it is believed that his addictions adversely affect his behaviour towards both you and your child, especially if violence in deeds and/or words are involved, such evidential proofs and their consequences on you and your child would be considered quite sufficient for the judge to refuse his application for joint legal custody, and award sole legal custody to you, and go further to deny him any access to his child if you ask for this to also be ordered.

You should, if there has been violence, also apply for orders under the Domestic Violence Act to effectively protect you and your child from the possibility of and any actual occurrence of violence as your circumstances require – that is to say, protection, occupation and ancillary orders (all three, or only one as deemed appropriate).

Then, there is the issue of maintenance, which your child in law is entitled to receive from her father.  This must also be pursued in the court, as its your child’s legal right to be maintained by her parents to the extent that they are capable of providing, and his provision ought not to have any adverse effect on any protection order for him to keep distant from you both, not to contact you, etcetera, and/or the court denying him any access to his child, or ordering only supervised access for a specified period of time.  Maintenance can be dealt with under the Maintenance Act or the Domestic Violence Act.

As to your wish to change your daughter’s name, that, in my view, is going a little too far, especially as current thinking is that addictions to drugs and alcohol are health issues and not due to a weakness of character.   As such, a court would, if it affects the father’s conduct and causes him to be violent both physically and verbally to you and to your child, and/or to you in her presence, order that such consequences of his ill health are too dangerous for you and your daughter to live with.  But this does not really affect her name, as your reaction in this regard smirks of embarrassment and shame on your part, and after both of you are protected by orders from any possible danger of being in his presence, there would be no need for her surname, to which she is entitled under both human rights law and under our own national law, to be changed.  When she has attained her majority, if she herself decides that she does not wish to be known by her surname any more, then she can obtain such a change by deed poll.

However, you have your matter in court already, so you must ensure that you apply for all the orders you wish to have, that they are included in the case now, and presented to the judge dealing with current case to consider, so that all necessary orders are made in these proceedings rather than if another application has to be filed later by you for subsequent orders to be made as between all the same parties as are involved in the present ongoing case.  Please speak to the clerk to ensure that all your matters are dealt with at once in September.  Multiplicity of actions are not welcomed as the court’s docket of cases is always overcrowded.

You have asked what factors the court will consider in custody cases.  You also ask what you can do to strengthen your case.

My answers to your first question is that the court would consider all evidence given in the case in support of the parties’ respective claims for orders by examining the conduct of both parents generally in their day to day life, and specifically to and with the child, and in the child’s presence.

The court must at the end of the day consider whether each parent is acting in the best interest of the child. Are they doing all they can to care properly for the child, are taking the necessary steps to protect her from dangers and dangerous situations, substances which may cause her to suffer serious injury? Does the parent engage in questionable pursuits from which physical, mental or emotional harm may be suffered by the child? Does the parent neglect or leave the child unsupervised and unsafe for appreciable periods of time? Do they provide for the material and bodily, mental and emotional needs of the child? These are all the usual provisions which a careful and caring parent would provide for their child (maintenance).

The Children (Guardianship and Custody) Act provides that the court may make, upon a custody and access application by a mother or a father, such order as it thinks fit regarding the custody and access to a child. Its decision would be based on the welfare of the child and the conduct of the parents. It should also consider the wishes of the mother and of the father and how these fit with the welfare and best interest of the child, which is the paramount consideration.  It also provides that if the court makes an order giving custody to the mother, and whether or not they are residing together, it may further order that the father must pay to the mother (or you can ask that these sums be paid to the court or into a bank account) for the maintenance of the child, such weekly or monthly or other periodical sums which the court thinks reasonable based of the means of the father, which should go on until the child concludes her tertiary level education.  Afterwards, either parent could apply to the court for the order to be varied or discharged.

On your second question, I can only say that you must ensure that every fact in your evidence is specific and clear, and most important, is true. If you have any witnesses who know the facts, especially of his addictions and his behaviour, especially of violence or other unacceptable conduct which are against your child’s best interest and safety, tell the clerk of the court in the court office so that they can subpoena them to attend court and give evidence on your behalf. They must be able to speak of facts that they saw themselves and not what someone else told them.

Additionally, if you can afford to retain the services of a good attorney-at-law, you should do so. This is a very important case which will affect your daughter’s life now and into the future.  Ask for recommendations of good attorneys and make your choice.  They know how to harness and deliver the facts and submit at the end, in the best way to prove your case and cross examine the father to make the picture clear that he is not a fit parent to have custody and/or access and maybe not even unsupervised access. If you cannot afford this, you can ask in the court office whether they have a list of good attorneys who do pro-bono cases in the court, or if this is also not possible, then do your best to present your case yourself. Just be sure to be cogent and clear in giving your evidence, start from the beginning, and go step by step to the end.  Do not talk about what happened in June of a year and then talk next about January of the same year.  Go from January, step by step, to December of the same year so there would be no confusion.

I hope I have clarified the position for you and I wish you and your daughter 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. All responses are published. Mrs Macaulay cannot provide personal responses.