Custody issues

Dear Mrs Macaulay,

I am a British citizen and my wife is Jamaican. She is in the UK on a spouse visa. We want to bring her daughter to the UK. She is 14 years old. My wife’s ex-husband disappeared about 12 years ago and she has had no contact with him over those years.

My wife went to Jamaica to get a court order for custody but she was unsuccessful because she didn’t know his address to serve him. So at moment we’re stuck. What can we do?

Quite frankly, I do not understand why the fact of non-service seemed to have been used as a ground to deny your wife the order she was seeking which is clearly in the best interests of her child.

You did not say whether your wife obtained the services of an attorney-at-law to assist her with the application, and in which court the application was made. If your wife applied herself, in person, in the Family Court of the parish she and her child resided in and in which her daughter still lives, then the clerk of the court, as is required, would have assisted her to prepare the application and her affidavit in support, which she would normally be invited to sign. It being apparent that she does not have an address for a set of the documents to be served on the father (who would have been identified from the certified copy of the daughter’s birth certificate which she would have had to take with her to the court office), the clerk should have advised her that an application would have to be made for an order for substituted service.

If she did retain an attorney-at-law, then the same advice should have been given to her — that she would also have to apply for an order for substituted service. If either a lawyer or a clerk of a Family Court failed to so advise your wife of this permissible legal process of ‘substituted service’, which is used in circumstances where the defendant’s whereabouts are unknown, then they failed to properly advise and assist her and were negligent.

The law requires personal service to be effected on every defendant of processes filed against them. However, when their whereabouts are unknown, it is provided in law that the applicant can apply for and may obtain an order that personal service be dispensed with and that it be substituted by service through advertisements in a popular national newspaper on a stated day for at least three weeks, and/or by sending a copy to a known relative by a specified means who the applicant knew used to be in contact with the defendant. The whole purpose of service and a substituted means of effecting it is to ensure that the defendant has notice of the application filed against him or her, so that they can contest it if they so choose.

So your wife ought to have applied for orders that personal service on the father of her child be dispensed with and that substituted service be effected. The newspapers do this all the time and understand what to do as ordered. The notices advertised state in them what the application is about and by whom it is made and when it will be heard in court. Your wife would then keep the page on which it appears each week and take them to the court to be put in her file so the judge would be satisfied that the orders were obeyed.

The date of the hearing would have been fixed and would appear in the advertisement so that the defendant has all the necessary information and has a reasonable time to arrange to appear in the matter to consent or contest the application or decide not to appear at all. At the fixed date, the judge, if the defendant does not answer when his name is called, would generally proceed to hear the substantive application for her to have legal custody of her daughter in default of his appearance and make the order accordingly.

I really would suggest that she obtains the service of an attorney-at-law with experience in family law to assist her through the process, if she had not done so. If she had then she can either demand that the person do what they should have at no further cost to her, or choose another lawyer to do and complete the matter for her. If she dealt with it herself in a Family Court, she could go back and insist on a substituted service application being done.

I hope I have clarified the position for you and your wife who it seems was not treated fairly as to the recourse the law provides for her when she has no idea of the father of her child’s whereabouts.

One final suggestion is that you yourself ought to consider, after the custody matter is properly pursued and completed, whether you ought not to apply to adopt the child. This is a matter for you and your wife to decide. However, she must move with the custody application as it would be completed earlier.

All the best wishes to you all.

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.