Mom wants back custody of child retained by dad

Dear Mrs Macaulay,

I have a four year old daughter with a married man who is living with his wife and children. Last year I quit my teaching job and decided to go overseas to work for few months, so I asked him to keep her for me until I returned. He agreed, but because I broke off the relationship with him, he decided to keep our daughter when I returned, and so I now only have her on the weekends. The problem is, when she is with him during the week I don’t have much access to her, because most times when I call him he’s on the road or it’s not convenient for him. Also, he has to hire a nanny because no one is there to take care of her. And her teacher told me that she is constantly crying for me. And there are days when he’s not at home because he works in other parishes. But when she’s with me, he has access to her 24/7. Can I file for full custody of her and she sees him on the weekends as I have no intention of keeping her away from them. Also, he is more financially stable than I am, even though I can manage financially on my own. What are my chances of winning custody of her?

Let me answer your question at once. Yes, you can apply in the Family Court of the parish in which you live for orders of custody, and the care and control of your daughter with access on weekends to her father as the judge determines is in the best interests of the child.

You must remember that when you asked the father to take care of your daughter as you would be away for a few months and he agreed to do so, that this was a temporary situation. You were not giving up your right both factual and legal to have custody and care and control of your child. What the father did by refusing to return your child to you, was to breach the agreement you both had made. It is clear that from her birth, that you had actual custody and care and control of your daughter, until she was four years old, when you needed to travel abroad to work. You then did the most responsible thing by asking her biological father to look after her for the period you would be away and he agreed to do so.

His refusal to return her to you after your return is clearly contrary to the agreement and his dictatorial imposition of only mere weekend access to your child is not legal.

In law, you have the legal right to have legal custody, either solely or jointly with him, of your child, and to resume your care and control of your child, while he can have access, as a judge of the Family Court orders on your application, is in the best interests of your child.

So you must go to the Family Court in your parish and with the assistance of a clerk of the Court, file your application for the following: legal custody – sole or joint with the father; care and control of your daughter to you; weekly or alternative weekends to the father; maintenance contribution of the father for the maintenance of your daughter. You must take with you a certified copy of your daughter’s birth certificate and details of how much it would cost to care for her, on the resumption of your having custody and care and control of your child. Your expenses in this regard must include the proportional cost of your rental or mortgage instalments ( to be worked out between you, your daughter and any other occupant(s) of the premises, and the same for all utility and household expenses. Her educational and medical, dental and such expenses should be applied for on the basis of the size or yours as against the father’s income, which should be considered and the proportion determined by the judge who hears your applications.

Please do this as quickly as you can. Do not delay. You do not want anyone to say that you did not act because you agreed with the decision of the father that you should only have weekend access to your child. He is a married man, who, from what you have stated, does not even have the time to personally take care of his biological daughter. You also have evidence from her teacher that she is missing you and cries to be with you. In addition, he clearly does not consider her relationship with you important and necessary for her welfare and wholesome development. It seems clear to me that your child needs you to ensure that she has a loving and caring environment in her home and that clearly is not in her biological father’s home.

Go to court and obtain the assistance you need to file your applications and get your child back, and give her the kind of care which she needs and to which she is entitled in law. The law is there to protect you and your child. Do not let her biological father dominate you and your child, when he clearly cannot give her what she needs, and do not delay to get the legal protection your child and you need.

All the best to you and your child, but it is up to you to act quickly.

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.