A father’s right to custody

Dear Mrs Macaulay,

I’ve been to the Family Court for my children three different times because my ‘baby mother’ is a liar. When I give her money for the youths, she spends it and tells them I don’t give her any, and since that they take up for her every time.

She is keeping a man there with them and I think that the man has been hitting my youths and cursing them. When they spend time with me they get upset when they have to go back to her, because she doesn’t set a good example and they know that. She also says bad things about me to them, even when I send more money to her than the court says I must.

I don’t like this situation, but based on how the court is biased against fathers, I don’t want to go back for fear that they will make me pay more money to her and I still won’t have a say in my youths’ welfare. How can I show them that she is not dealing with them right and get more control over how she spends the money I give her for them?

Distraught Father

Dear Distraught Father,

I am really sorry to hear about your children’s situation as you allege that they are possible victims of physical and mental abuse from their mother’s boyfriend, and that she herself is subjecting them to harmful effects by what she says of you to them and by “keeping” the man there with them.

You have also complained about her lying about the monies you give to her for their maintenance and that the Family Court believes her and is biased against fathers. Let me deal with this part of your complaint first.

You did not indicate whether the application to the Family Court was made by you or by her, nor the ages of your children. Anyway, please be clear in this, either parent has the right to claim custody, care and control of their children.

When a court considers which parent should be granted this and which should have access, (this could be residential, with the children spending week-ends and half of school holidays or merely spending some hours of a defined day), it has to be guided by what would be in the best interest of the children.

Traditionally women are accepted as the caregivers and nurturers of children, and of the family. This is the role which was ascribed to them because of their sex and which the Women’s Movement has been at pains to change. The movement has been advocating for men to take on these roles as well and indeed, I know for a fact that more men have and wish to do so, as is evident by your wish to take full care of your children.

In addition, new legislation, particularly the Maintenance Act 2005 and the Property (Rights of Spouses) Act 2004, have by statutory provisions, given these “domestic roles and chores” of women material value which must be taken into account by the court.

If you are certain that you suffered as a result of bias in a decision taken by a court, you should file an appeal against the decision on the grounds of such bias. You will have to prove this in the Court of Appeal, that is to say, prove actual bias and not merely that you believe there was bias because the court found against you and you happen to be a man.

If she lies about the money you give to her, it is clearly because you do not demand a receipt from her. You have a right to, and she has an obligation to give you a receipt for the money for maintenance you pay to her. In addition, you could have insisted that you pay the money to the court office. She could not challenge any such payment.

Your concerns about the possibility that your children are being abused both physically and mentally should not be treated lightly. You say you think this is so.

I suggest that on the bit of information which you seem to have, that you act under the Child Care and Protection Act 2004, and make a report against the man for his assaults and verbal abuses (and of your ‘baby mother’, because if she knows of his actions and permits them, then she also commits an offence). This report can presently be made to the Child Development Agency (CDA), Tel: 948-7206, 940-2841-2) which will investigate your complaint.

You may also, since you say the children are unhappy to return home after being with you, carefully extract the reasons from them, and if it is as you suspect(that they are suffering abuses and cruelty at the hands of the man), they would thereby clearly be in need of care and protection.

You should report it to the police or the Family Court or the CDA, so that charges can be laid against him and possibly her. You seem to be also upset that she is “keeping man there with them”. This by itself is not a reason to question your baby mother’s fitness as a mother.

If, however, your ‘baby mother’s’ and the man’s conduct together, in the presence of the children, exposes them to moral danger, then this would cause them to be in need of care and protection. Under the Act, once you have any information which causes you to suspect that your children or any of them have been or are being or are likely to be physically ill-treated and/or are in need of care and protection, you must report it so that action can be taken to protect them.

You should not be afraid to go back to the court. It is the welfare and best interests of your children that you are worried about and you must do everything you can to ensure that their safety and overall development is assured.

Under the Maintenance Act 2005, the mother is also required to contribute to their maintenance. If you have any doubt about their safety, you must act. If you have any doubt about the money you provide not being used to provide proper food etcetera for them, you must act. Apply for their custody, care and control, but you make sure that you have arrangements in place whereby they will be properly looked after.

So you should either go back to the family court on your application for their custody, care and control or make a report to the CDA. Do not leave things to fester while your children are unhappy and unsafe. You must use every avenue to protect them and enable them to live in happier circumstances.

Margarette May Macaulay is an attorney-at-law and a Women’s and Children’s Rights Advocate, Send questions and comments via email to allwoman@jamaicaobserver.com or fax to 968-2025. We regret we cannot supply personal answers.