Dad refuses to return child

Dear Mrs Macaulay,

I applied for custody of my daughter. I really didn’t want to go through the long and tedious process of a custody battle, and so agreed to joint custody. The document reads,”By consent, it is hereby ordered: joint custody is granted, with primary care and control to the mother/applicant. Agreed liberal access to the father/respondent.” The father has had her for over two weeks now and she is not going to school because he doesn’t want her to attend the school I was sending her to. He refuses to take her back to me, and threatens to eliminate me from the earth.

Please explain the court order, and what would you advise me to do?

The order on your application for custody, care and control made by the court is the usual joint custody one to which both you and the father agreed. That is why the order says “by consent”. You both agreed that legal custody would be shared jointly by you, and the father. This means that you both would be responsible for making all the important decisions for your child’s life, welfare, and development; for instance, about all serious medical, dental and optical procedures, and about educational and religious matters. It has nothing to do with the physical presence/control of the child. What this entails is that you both must, regarding decisions to be made about your child’s welfare and development, share and discuss and agree what must be done by, to, and for your child’s life, development and welfare.

This order does not give the father the legal right to keep your daughter at his home and away from you and out of school. He does not have care and control — you have that. So your daughter is to live with you, day to day, and NOT with him. He only has access.

I have always ensured that the access part of these orders in cases which I have done for my clients, do not have the words “liberal access”, agreed or otherwise. In my experience, such orders most often cause problems, quarrels and grave misunderstandings. All orders should be detailed and clear, so that both parties and any other interested person can understand what the judge meant by the order made. The parties are not lawyers and it is clear that your daughter’s father does not understand that he is acting in breach of the order made. He is compounding his breach by making threats to obviously kill you, which is a criminal offence, which you should report to the police.

You also do not understand that part of the order which states “agreed liberal access to the father/respondent”. This is wide open. He can just ask you any day or time to have access to his daughter and you can also just decide that you are giving him access what day(s) or times you decide. This is messy. I always insist on fixed periods of days — eg, “on alternate weekends commencing on Friday the —day of — from 5:00 pm and ending on the Sunday at 4:00 pm; the said child to be collected and returned by the father/respondent at —; and for sharing school holidays and Christmas, New Year and Easter holidays, these must also be specifically spelt out in the order. If this is clear and specific, it assists the parties to act peacefully, and it will also save the time of the court from having to deal with future and frequent further applications by either of the parties.

What the father of your child ought to have done since he disagrees with the school you have been sending your child to, is to go back to the court and make an application for the court to decide on the matter which he disputes. He cannot take the law into his own hands by breaching the court’s lawful order and his two criminal actions of keeping the child from school and threatening your life.

So, what must you do?

You must go back to the court and make applications, first that he be ordered to return your daughter to you immediately, and, secondly, that he attends the court on a fixed date to explain why he should not be punished for his contempt of court and for the threat he made against your life and for keeping the child from attending school thereby interfering and terminating her education. You must do this as quickly as possible. If you allow too much time to pass, it could be interpreted as though you were condoning his actions. You must do all in your power to protect your daughter’s life and welfare and ensure that her development includes proper respect for the laws of Jamaica and the orders of our courts of law, all of which the father/respondent does not seem to have.

So please go to the court. Make sure that you always have certified copies of all your court orders with you at all times. Keep them in plastic containers for safety, then you could go to the police and report him whenever he breaches any order and show them your copy of the order. Make sure that the order of his access is specific and all the details of the when and where of his access are spelt out in the order on an application for this part of it to be varied, so that no further breach by him can occur again.

I hope I have clarified matters for you. The court is there to protect you and uphold your rights and those of your daughter. Use it, please.

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.