Babyfather keeps threatening me
Dear Mrs Macaulay,
I am 27 years old and I have a three-year-old son. I was living in Kingston and I moved to St James to live with my babyfather. This man and I can’t get along. I want to go back to Kingston with my son, but his father keeps threatening me. He also says that if we go to court he will win because he is in a good job, working as a firefighter for over 10 years. Plus he keeps getting promoted. I, on the other hand, will lose my job when I leave Montego Bay, and I will be at home being broke. I have my qualifications as an early childhood teacher and as a practical nurse. I want full custody of my child but I’m afraid I won’t get it because I won’t be able to finance my child when I return home.
Your babyfather is, as they say, “blowing smoke”. No court decides a child’s custody issue based on the fact that one parent has more money than the other, or that one is not gainfully employed at the time of the application and the making of the order.
On a custody application, the court’s main focus is what is in the best interests of the child. This is to say, the court will consider and act on evidence which satisfies the judge that it is best for one parent or the other to have ‘sole’ custody and the care and control of the child, or that the parents ought to have joint custody and one of them is to have care and control of the child. “Custody” is the legal right and obligation to make all the important decisions about the child’s welfare and upbringing. So if joint custody is ordered, then both parents are to make the important decisions; for example, whether the child is to have an operation or not, what school the child ought to attend, what religious affiliation the child ought to be brought up in, or the changing of his diet to vegetarian.
“Care and control” means the day-to-day caring and nurturing of the child. The child would reside and live with the parent to whom the court awards “care and control”. For this, the judge will award it to the parent who, on the evidence, satisfies him or her that they would be the best person to care for and look after the child. In other words, the child’s welfare would be best served by living with that parent.
If you yourself feel insecure about being without a job, why not apply for and secure a position in Kingston before you and your son actually return to Kingston?
In addition, it is your babyfather’s legal obligation to provide maintenance for his child if the mother is not working and has no income. Such an order would be varied when you again become employed, as both parents are to contribute to the maintenance of their child. Or the order could be made for a specified period up to when it is believed you will again be gainfully employed and so be able to contribute to your child’s maintenance.
Further, if you and your babyfather have been living together for five years and he is a single man and you are a single woman and you lived as if you and he were husband and wife, then he also has a legal obligation as far as he is capable (and he is clearly capable) to maintain you until you obtain employment again. The court would make the order for what it considers a reasonable period of time to enable you to obtain employment. If you still do not succeed in obtaining a job and the period in the order is coming to an end, you must go back to the court before it ends and apply for the period to be extended.
Your babyfather’s threats and assertions about the fact that he would succeed in court because of his good job and financial position are empty, and have no basis of truth in fact or in law.
In fact, in your applications to the court, you must in your affidavit in support of them (your applications should be for the custody, care and control and maintenance for your son and also maintenance for yourself, if you are not gainfully employed) state his job position and earnings, if you know these. You must also include his threats and assertions about his financial position which he has been using to control you and force you to remain in his home. You should also state in detail the unsuitability of the home environment there, both for you and your child.
Further, you must detail what you would need for your son’s necessary living expenses as exactly as you can — that is to say, for the cost of shelter, food, utilities, clothing (general and uniforms), footwear, transportation, toiletries and haircuts, lunch money, cost of snacks and such. Orders for educational, medical, dental and optical expenses are generally stated to be payable in total by one parent or split proportionally between both. Your own detailed living expenses must also be stated for all the above items, plus your cleaning materials and your personal toiletries, personal hygiene needs and cosmetic costs.
I trust that you will plan your return home carefully. For your own peace of mind, put in your applications for employment in Kingston now before the new school year, or try for a job as a practical nurse. If you do not succeed immediately, however, do not let this deter you from moving both you and your son from a threatening and unhappy situation.
As I said, your babyfather is legally obligated under the Maintenance Act to provide for both of you. Just go to the Family Court after you get to Kingston. Keep in mind, though, that the father would be entitled to access to his son when you obtain custody and care and control. Good luck.
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.
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.
