DEAR MRS MACAULAY, My daughter’s father has been mostly absent from her life for almost ten years. Whenever he is to spend time with her, he keeps making excuses. When it’s a holiday, he offers to keep her for three weeks, then changes it to two, then one week, then for the weekend, and finally a day, or none at all. If he does come visit he’s always in a rush to leave. He doesn’t spend time with her, yet he says my family is fighting against him.

I went to the Family Court for maintenance, but unfortunately he wasn’t at his home to get served. When I threaten him, that’s when he starts to give me child support and spend time with her for a period of time, until he realises that he can’t be caught.

I have been trying for years to get him to support and spend time with her. When I stop trying, my daughter falls into depression and starts calling every man she sees daddy.

I am now married and my husband wants to adopt my daughter. Do you think that the court will look into this and allow my daughter to be adopted by my husband?

I understand your feelings, but it would have been helpful if you had indicated your child’s age. I am going to assume that she is about 10 years old, as you say that he has been mostly absent from her life for almost 10 years; but you have not indicated if this was from her birth, or later on.

The question you have asked about whether your husband, who wishes to adopt your daughter, would find favour with the court and obtain an adoption order, is a presumptive one. You are leaping before you can walk.

You have related the father’s lack of interest and unreliability in circumstances in which I believe you both had agreed how you would co-parent your child. You stated that whenever he is to spend time with her, in other words have his periods of access to his child, that he would make excuses why he cannot do so for the whole period he was to have care and control of her.

He clearly seems to be one of those persons who never chooses to recognise their misdeeds, but always blames someone else for their failures.

Having gone to the Family Court, you should not only have filed for maintenance, but also for legal custody and care and control of your child. You see, both parents have equal powers to apply to the court in relation to any matter about a child’s development.

Without a court order, as you and he were not married, each of you only have equal
de facto custodial rights. So you should, and you must, apply for and obtain sole legal custody and orders for the care and control of your child.

You both of course have legal obligations to care for and provide for your child during the years of her growth and development, and to make the requisite and appropriate decisions for her proper advancement. You dropped the ball there and so did the intake clerk of the Family Court, who should have advised you to also apply for custody and care and control, wherein the issue of the father’s access would also have been dealt with, and relevant orders made of his dates and times, etcetera, plus the fixed maintenance sums he should pay, and when and where. If he disobeyed any of the orders (as he probably would have done), then you could have him summoned to answer to his contempt of the court order. This is taken very seriously by the court and in some instances such fathers end up in jail. You could have had your application re-issued for another date, but you did not.

Instead of threats, you should use the law to either force him to meet his legal obligations as a father, to apply to the court under the Children (Guardianship and Custody) Act, to make certain orders. If you have sufficient evidence that he has not met his obligation to provide maintenance for his child and consequently left all her expenses for an appreciable and specific period of time to be met by you alone or by your husband, the court on you application could order him, you, or your husband the whole or a part of the total expenditures.

In addition, under the same Act, an application can be made by you for the court, based on his unreliable conduct and the adverse emotional and psychological effects on your child, to rule that he has abandoned or deserted his child, or that he is an unfit parent as he is unmindful of his parental duties, and I would add that he is completely disinterested in his child, and the effect on her of his failures may adversely affect her throughout her life. This last order would then assist you and your husband to move towards the legal adoption of your child by your husband. But firstly, you should both apply now for the legal custody, care and control of your child, to be jointly granted to you and your husband.

I strongly suggest that you and your husband retain the services of an attorney-at-law who is very experienced in child law to advise and act for you, so that you can eventually obtain the necessary orders to eventually lead to your husband being legally able to adopt your daughter. Currently, her biological father has the same rights as you have, because you have so far not used the legal provisions which exist for yours and your child’s protection. At present he would have to consent to your husband adopting your daughter, and it seems very clear that he would not do so.

The Act I have referred to is not the only one which applies to yours and your child’s circumstances. So please, please, obtain the services of a lawyer as I have suggested so that your child can be properly protected and her rights secured in law. You have to act to save your child from the adverse effects she is suffering!

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.