Mom keeping dad out of son’s life

Dear Mrs Macaulay,

I found out last year that my fiancée of six years had been cheating. She has a baby for me who was six months old at the time she started cheating. After finding out, I spoke to her about it and whilst I was very cordial and calm, she went and reported to the police that I threatened to kill her and myself. This was a blatant lie, but I realise our system is such that anyone can just go and report that someone threatened to kill them without any evidence or facts.

She also went and got a protection order against me. I did not attend court as I thought this whole episode was ridiculous and I decided not to subject myself to the humiliation, but the judge gave her an order for a year in my absence. She also had me in the Petty Sessions Court for the threat charge but she didn’t turn up on three occasions, so the court threw out the charge for non-prosecution.

She has an aggressive and jealous temper and is always physically and verbally abusive. I have never been aggressive with her.

Since she got the protection order she has cut off all communication between me and my son. I have not been able to see my son since May of this year or bond with him. I used to bring his supplies even when she had me in court and had to stop on the side of the road, near her apartment, for the security guard to come and collect the supplies for my son. This I used to do every month. However, I have stopped belittling myself in this manner since June.

I am very concerned that she is preventing me from seeing and spending time with my son at a critical time in his life. I was the one who sat with her through six hours of labour and was in the delivery room with the doctor helping to deliver my son, so that experience alone made me very attached to my son. I am also concerned that her bringing strange men around my son is confusing the child as to who his real father is, as I was told by her neighbours that they hear the child calling another man she apparently has visiting her and sleeping over “da-da”.

I find it hard to accept that in today’s Jamaica a woman would prevent a caring and loving father from being a part of his child’s development, especially where it is shown that the absence of a father has been one of the main contributing factors to so many of our kids becoming gunmen and gangsters at an early age. I do not want this fate for my son and I am very concerned about his welfare and well-being. What can I do?

I understand your feelings of frustration and your concern for your son.

You did not say in your letter whether you and your ex fiancée were living together or whether you had a visiting relationship with her. If you did not live together, or you both generally didn’t spend some days of each week together, either in her home or she spent them with you in yours, then no protection order ought to have been made under the Domestic Violence Act against you. But without any information from you to the contrary and the fact that a protection order was made, I must conclude that you did fall within one of these categories.

Additionally, since you say that you have not seen your son since May, I conclude that is when the protection order was made and commenced.

Your decision not to contest her application for such an order in the Family Court was not only unfortunate, but also quite ill-advised. You say you stayed away because you thought the whole episode was ridiculous and you decided not to subject yourself to the humiliation. This was utterly the wrong course of action to take.

Your inaction and failure to contest her allegations have now resulted in them being upheld in an order of a court against you.

You speak of humiliation in you contesting her application in the Family Court, but the proceedings for orders under the Domestic Violence Act are heard ‘in camera’. While it is your right, as it is any citizen’s to decide not to contest any court action, it is also your right to do so in order to ensure that no order based on false allegations and false testimony is made against you.

As you are now experiencing after the order was made, you have no other choice but to obey it so that you do not suffer any legal consequences by committing a breach of it.

I have gone on so long about your wrong and unfortunate decision because I feel quite irritated that a father like you, whom I applaud for your attentiveness during your fiancée’s labour and delivery, could put yourself in the invidious position that you have put yourself and your son in by the consequences of your ill-considered decision of leaving the court to act only on her one-sided stories.

Your decision to stop providing for your son is, I am afraid, another ill-considered decision.

Firstly, you have a legal and moral duty to contribute to the maintenance of your child. Under the Maintenance Act, both parents have the legal obligation to provide maintenance for their children as far as they are financially able to do so. This means that the one who earns more will have to provide a larger share than the other.

Anyway, you must provide your share for your child’s maintenance and please note that this does not mean that you just buy “supplies”!

You also as a father have the right to have access to your son. Though your decision not to contest the domestic violence allegations in the court hearings have resulted in a protection order being made which keeps you away from your ex-fiancée, this does not mean that you cannot have access to your child. So what should you do now?

Your legal options

You should go to the Family Court and apply for orders for (1) custody of your child and (2) access to your child, and for your maintenance contribution for your child to be fixed at a stated sum of money per week or per month.

At the hearing, you must be fully candid with the court about your ill-considered decision about the protection order application and that you want to continue to play your fatherly role in your son’s life. You should also, at the hearing, ask the court for you and your ex-fiancée to have counselling, especially as you would be asking for custody of the child which would in all probability be ordered to be joint custody and for your ex to continue to have care and control.

You could also sue your ex fiancée for damages for malicious prosecution for the criminal case she caused to be filed against you in Petty Sessions.

So go to the Family Court and let them do your application for custody, for access, and for your maintenance contribution to be fixed for a specific sum of money. You must do so as quickly as you can before she makes an application for maintenance on the basis that you have not been making any provision towards your son. If this happens you will then be on the defensive, so act now so that you will not be in this position.

However, even if she applies before you do, still go in and make yours for all I have suggested so that both yours and hers can be heard before the court, thereby ensuring that you also get the orders you wish to have for yourself.

Your child’s welfare and best interests must be the matter of priority in your actions and reactions, so please also go for counselling as you must deal with each other as his parents. All the 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.

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.