Mom is denying me access

Dear Mrs Macaulay,

I am having a serious problem with getting to spend time with my son. I have tried speaking to his mom but since we broke up in the last part of May 2013, I have seen my child 14 times and I just live down the road from them.

They were living with me and my six-year-old son at my home which is just down the road from her mom’s house where she now lives with my other son.

I am very frustrated because I was the one taking care of both her and my sons and even after the break-up, I am still taking care of my son, but she keeps saying I am not and denies me access because we are not together anymore. I have tried in vain to reason with her each time I give her stuff for the baby, but I can’t hear or see him until either the stuff runs out or almost out. I feel as if I am only the father when he needs things, but I can’t see him when I want to. It is now at the point where I had to take her to the court for access on October 1, 2013, but instead of me getting access she went and got custody on October 8, 2013, after the judge said we were to come back to court in January 2014.

This is very strange to me because she gave the baby to me on October 7 and said I was to bring him back by 9:00 pm. I told her no, as the court had said that neither of us had custody and I could have the baby stay over if I wanted without the mother stopping me.

But she went to the police station in Portmore and at 1:36 am she and the police were at my gate calling me. When I explained the situation, they left.

On October 8 she went to the court in Spanish Town and got an ex parte order for custody, stating that I was an unfit father, without me being served. I am wondering how this could happen to me.

I was told that my child’s mom went to the courts crying and said I took the baby from her, which is a lie, because she gave me the baby to spend the day with his brother on his birthday and she lied to the courts and got away with it too.

I am still in a shocked and depressed state.

I am pleading for your help. When I was at court I did not get a chance to speak in court as the judge just listened to her and each time I put my hand up, I was told to put it down.

Your letter has perturbed me greatly because you are the latest of several fathers who make the complaints you have that firstly, the mother of your child has been denying you access to the child and secondly, that you, having applied to the court in order to be able to exercise your right of access as a father, have been denied the opportunity during the proceeding to speak and state your case. Both parties must be given fair and adequate opportunities to speak to their case during the proceedings. I make a conclusion about your assertion but the frequency of such assertions is a matter of grave concern in the administration of justice generally and in particular in issues relating to the best interest of minor children. I am even more concerned about your assertion that the mother of your child went to the court in Spanish Town and obtained an ex parte order for custody of the child despite the fact that you had filed an application for access to your child on October 1.

I cannot understand the basis on which she was granted custody on an ex parte application when you were obviously available for service on any application she made, and in addition you and she were already parties in an application which was before the court and which related to the interest of the same child. I venture to state that apart from the fact that you say she lied about you being an unfit father — which is an allegation that must be tested when made in any proceedings relating to a minor child — you have been denied in the making of an interim order the opportunity to cross-examine and therefore test the mother’s veracity, as well as using your rights to state and prove your case about the matter to the court.

In my view, the ex parte order cannot and ought not to stand in law and should be set aside on the ground that it was made erroneously and is an unsafe basis upon which a permanent order can be made on an inter-parties hearing.

You say that you were not in fact afforded any opportunity of addressing the court and to put forward your case. If this was in fact so, you were not afforded a fair hearing to which you are entitled in law and to which every citizen is entitled who is a party in any court proceedings.

I can only suggest this. Please get yourself a lawyer who will be able to protect your fundamental human right to have a fair hearing. It is unfortunate that I have to suggest this, because the Family Court jurisdiction was set up to ensure access to justice for all citizens without the need for legal representation, which might be too costly for some citizens. Additionally, it is a fundamental right for any citizen to appear in person and conduct their legal proceedings themselves without professional legal representation. On the other hand, because the majority of citizens do not know the law, their rights within the law and the procedures of the courts, it is a sensible thing for them to seek the assistance of professional legal representation.

This matter of access to your child, of being present in your child’s life and developing a father/son relationship is clearly extremely important to you, and you need to ensure that you do everything in your power to obtain the orders which you ought to as a responsible and caring father. You ought to seek an order of joint custody and for residential access to your child. Additionally, I would advise you to have the court deal with the issue of the maintenance you would contribute towards the needs of your son so that this matter can be clear and specific.

I must highlight this: the access to a child is NOT based upon that parent’s provision of maintenance. It is based on the right in the parent who does not have care and control of the child to have access to that child. Maintenance is a separate issue. You should, or through your legal representative, obtain an order for a social enquiry report to be done relating to the mother’s home environment, yours and both of your financial situations.

Please try to get yourself a lawyer to go to court with you. Try to do this so that you can get joint custody and participate in all the important decisions in your son’s life and a proper order for residential access to you which will enable that son to have a relationship with you and his older sibling who resides with you.

All best wishes and God bless.

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.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.