Mother won’t let dad raise child

DEAR MRS MACAULAY,

I am required to pay maintenance to my son’s mother at $8,000 per month. Seeing as it’s my only child, I also took on other responsibilities. I agreed to pay for his daycare and everything else he needed. Daycare was $8,000 per month, then other expenses would run me into about an extra $12,000 which I didn’t have a problem taking on.

But I have no access to the child, except when he is attending school. I don’t get weekends or holidays. He has a health card which his mother benefits from.

Now the mother is migrating and is leaving the child in the care of her sister and cousins and they will decide how I have access to him. They also want me to increase the maintenance sum. I now hear that he will move away to a more rural community. I told her I won’t support her decision. How should I approach this legally? Can I get custody? Will I be required to sign if the mother is going to file for him? I would prefer to have my only child living with me whenever the mother leaves the country as I am a capable individual.

It seems that in your attempts to be a good father for your only child, you allowed yourself to be pushed into providing more and more financially for the child without insisting on your right to proper access. You should have been enjoying residential access of alternative weekends and half of all school holidays.

You have asked what you ought to do legally, so clearly your statement that you are “required to pay maintenance” is not based on a court order. Your decision to act is the correct one and you should use the law to ensure that you, the other parent, are the one who will care for your son when his mother leaves these shores. This is how it ought to be in fact and in law.

How should you approach this legally? Since you have the right to custody, just as the mother does, you should either obtain the services of a lawyer immediately or you can act personally to quickly have your application prepared and filed for the custody and care and control of your son and an order that the child should not be removed from the island without the permission of the court. The grounds of your application would be the fact that the mother is migrating and you require, as the child’s father, while the mother is away, sole custody of the child, with care and control to you, as you are able, in every sense and way, to take proper care of your child and ensure a stable home and upbringing in the best interests of your son. This is your right spelled out in the law — that is in the Children (Guardianship and Custody) Act — where both mother and father have equal rights to the custody and care and control of their children.

Or, you should, and this would be quicker, go directly to the Family Court which serves the parish in which you and the mother reside, and tell the clerk of court/intake officer that you require her/his urgent assistance to make your application for the sole custody and care and control of your child as the mother is emigrating and intends to leave your son with his aunt instead of with you.

Tell the clerk that you have ample room to have your child reside with you and that you can continue to provide for him and ensure he receives proper care and a stable upbringing, which is in the child’s best interests. You should point out that it is not in the child’s best interests to be put in the care of the aunt, especially when you are ready, willing and able to look after your child. You must, and this is very important, apply for an order that the child cannot be removed from this jurisdiction/the island, without the permission of the court. Do not leave this to chance. After the application is prepared, you can ask for the court bailiff to serve it on her, or you can arrange for it to be done by a friend or process server. Then you can engage the services of a lawyer to assist you through the hearing of the matter if you so wish.

You should explain to the clerk/intake officer at the Family Court the urgency of the matter as the mother is on the verge of leaving the island. It would be great if you can get the application done in time to be served on her before she leaves the island. However, if you fail to have it done before she leaves and your child is indeed left by her with her sister, then explain this to them, so that your application can be properly directed to the person who has your child in their actual custody or purported custody. Your right to custody, care and control precedes any claim the sister may raise that the child was left with her by the child’s mother.

You would normally be required to give your written consent if the mother is filing for him. This will, however, come to be known to you if the mother is truthful in her application about your existence, identity and availability.

I have known of instances when, despite wholly committed fathers or mothers sharing care of their child/children, some mothers and fathers have succeeded in whisking their child or children abroad with them, by in some instances having someone other than the actual other parent sign as such. Remember, the consulate officers do not personally know the other parent and all sorts of forgeries can be obtainable for a price by those who are not afraid to break the laws of this country and the laws of the country to which they wish to migrate. I am still amazed at the lengths some people are prepared to go to thwart the hopes of the other parent of being a full caregiving parent of their children while they go about their lives elsewhere.

This is the reason why you should act as quickly as you can to get your application done and filed in court for all the orders I have suggested — that is to say, sole custody, care and control, and a bar to your child being taken off the island without the permission of the court. You are in law even entitled to apply for maintenance contributions from his mother to be paid to you by her while he is in your custody and care. It is for you to decide if you wish to add this to your application, especially at this time.

I do hope you act now and that you are in good time, so that your son does not become settled with the aunt.

Move quickly and good luck to you.

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.