DEAR MRS MACAULAY, Since our separation, my ex constantly tells our son that I abandoned the family and only care about my new relationship. Now my son, who is 13, refuses to visit me and won’t answer my calls. Is there anything the court can do when one parent is poisoning the child’s relationship with the other? I understand that at this age, the child’s wants are usually taken into consideration in court, but I just want a relationship with my child, without the influence of his toxic mother.

This situation is too often caused by the parent who has custody, care and control of a child, either de facto or by order of a court,  whose relationship broke up and who is bitter, angry and antagonistic towards his or her ex-spouse who has gone into another relationship.

In your letter, you state that your ex has constantly been telling your son, who is now 13, that you abandoned them (your family) and that you only care about your new relationship and that as a consequence, your son now refuses to visit you or to accept your phone calls.

The result of your ex’s action is a denial of your right and that of your son to access, and a close familial relationship with each other, and the extended paternal family.

This mother clearly needs serious counselling, if not therapy.  She has allowed the hurt, anger and upset she feels about the break-up of your relationship to rule her mind and behaviour to the detriment of her son’s right not to be weighed down by his adult parents’ problems, and in addition, she adds mistruths to what she tell this young, inexperienced child that his father does not care for him and only cares for others in his current relationship.  This is so irresponsible, selfish, vindictive and stupid!  She clearly is not thinking at all about the best interests of her child.  What is important to her is only how she feels and that she wants to punish you by making sure that she has gotten your son to reject you.   If she thinks this is acceptable, then she really needs to be brought up short by the law and with therapeutic treatments.

It is really vicious because from what you allege, she worked on her son over time, because she did not herself have the courage to deny your access, and she manoeuvred her son to the position where he seemingly made the decision to stop his visits to you, and to deny your legal right to access with him; and with lies, without considering the mental anguish and/or injury  she was causing, has caused and shall continue to cause him to believe that his father does not love and care for him.

This has resulted in your son not only being denied his legal right to access with his dad, but she has denied her child his legal human rights to have a relationship with his father and paternal relatives.  This is egregious harm to the child.

The Children’s (Guardianship and Custody) Act makes clear that both parents, mother and father, have the same and equal rights to apply to the court about any matter which is affecting their child.   This is the clear legal position.  You have not stated whether the custody, care and control which the mother has of the child, is merely de facto, and that the child just continued to live with his mother with you having visits with him as you had both agreed, until now.  Or, is there a legal order in place which awarded legal custody, care and control of your son, with your consent, to his mother?

I assume that you also had arrangements in place to continue to provide maintenance for your son and continue to do so.

Anyway, you have the legal right to have access with your son, and you should therefore, as quickly as you can, if you can afford it, retain the services of a lawyer to assist you to file and argue an application for you to have fixed legal access times with your son ordered by the Family Court (which would be quicker that a Supreme Court application).

You should apply for regular visits of every or every other weekend during school terms, except for special days like your birthday or a close family member’s or his own birthday to be split by hours of the day or annually alternated; and then special periods like Christmas, New Year, Easter, can be ordered shared or alternated annually.  Then for school vacation periods, you must apply that these be shared as equally as can be devised between you and your ex.  Then you must also apply for your maintenance contributions, which should be apportioned between you and your ex, depending on your respective capabilities to be also included in the orders, as per the Maintenance Act and its amendments.

Your lawyer should also consider whether or not you also ought to apply for a protection order for your son under the Domestic Violence Act.  As a parent you have the legal right to make such an application on your son’s behalf.   What you ex has done to your son  is clearly behaviour of such a nature and degree as to result in ill treatment of your son — (Section  4(1) (iv) of this Act.   If the judge finds that what she has done and is likely to go on doing is likely to cause mental injury to your son, the court would issue the protection order.

You mention the fact that at your son’s age the child’s ‘wants’ are taken into consideration by judges.  Yes, this is so, as is provided in the Child Care and Protection Act.  However, in practice, if the judge hearing your application deems it necessary to speak with your son, this would be done by the judge, your son, the clerk of court and your lawyer (or not) going into the judge’s chambers where the judge would speak with, question your son, and explain the legal provisions which apply to him.  All this would be done in your absence. It would be explained to him that he must speak the truth and that no one present would be allowed to repeat anything he says to either of his parents or anyone else, so he should not be afraid of that. This action has been found to be very helpful in assisting judges to arrive at the truth so that they can ultimately decide what are the best orders to be made in the child’s best interests and for their general welfare, and to ensure that they enjoy their legal rights.

The respondent would also be made to admit the wrongs she has engaged in and their adverse effects on her child, and the effects of denying the rights of her child to have a relationship with his father and his paternal family members.  It would also assist the judge to decide what remedial orders should be made for each parent, and counselling sessions may be ordered for both or for one more than the other.

There is no way that you will not obtain your rights to have access to your son, as there is nothing adverse in your conduct which the law recognises as a ground to terminate access.  You are on safe grounds, dear father, so please act as soon as you can.  Make your application.

If you cannot afford a lawyer, the clerk at the Family Court is responsible to assist applicants to apply for orders from scratch, or if an order is already in place, for a variation of an existing order. The clerk shall assist you with preparing your applications, but if this is what you must do, please ask the clerk to put in the applications for orders I have referred to, under the relevant Acts.

Please do not let too much time pass before you apply. Do it as soon as you can in the Family Court of your parish. Please act!

All the very best to you and your son.

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. All responses are published. Mrs Macaulay cannot provide personal responses.