Mom says dad alienating son

Dear Mrs Macaulay,

I am trying to get my son to come visit me in the United States, but his father is not allowing it. He is also alienating our son from his maternal grandmother and grandfather, and his older sibling. Our son is 11 years old, and has no manners to me. How can I file for joint custody or visitation rights?

It is such a pity that you did not try to settle the issue with access to your son before you left to reside in the United States. That having been said, it does not mean that you cannot make the applications in court which you could have made then, now.

I assume that you must have thought that your son’s father would work with you regarding access. It is clear that on the contrary, he took full control of your son and has continued to deny you any access. The fact that you are abroad does not mean that you have no right of access there, and/or on occasions when you visit Jamaica.

The conduct of preventing visits with your other family members is also wrong, and is a denial of your son’s rights, and against the law. His father has no right to deny his child the right to have a relationship with his mother and her family members. If, as is the case, the child resides with him, he then bears the obligation to ensure that the child has and knows, visits and develops relationships with, his mother, grandparents, and his older sibling. He has no legal right to deny this, and thereby is acting against the child’s best interests.

In law, you and he have equal rights to have custody, care and control. The Children (Guardianship and Custody) Act provides that the “mother of a child shall have the like powers to apply to the court in respect of any matter affecting the child, as are possessed by the father“. Then when the court is considering your application, it would make its order for custody and the right of access for either parent with due regard for the welfare and best interests of the child.

You must retain a lawyer to assist you to file your application for joint custody, with care and control to the father and access to you during at least one-half of his summer school holidays and if you wish, annual alternation of Christmas and New Year holidays and his Easter holidays. The father would be the respondent in your application to the court.

You must instruct your lawyer what you wish for access, and also that they should add applications for you to also have access if and when you visit Jamaica on specific days, and the time of his being collected by you or when he should be delivered to you, and the time he should be returned to his father’s home. Telephone or Zoom access by you should also be added, and the days and times thereof. You should also instruct your lawyer to apply for orders for your parents to have access at least once a week for a specific number of hours at their home, with a fixed starting and ending point of time stated in the order. The same specificity must be made in an order relating to access with his older sibling. Relationships of these kinds are all accepted as being in the best interests of all children, and necessary for their wholesome development, in line with the children’s legal rights.

Your application should be filed in the Parish (Family) Court for the parish in which your son and his father reside. Here, your application would be heard much quicker than if it is filed in the Supreme Court. When it is fixed for hearing, your lawyer will assist to ensure that your application with the date written on it, is served on the respondent father. It would be served with your affidavit in support which should contain all the facts relevant to your application. A certified copy of your son’s birth certificate should be exhibited to your affidavit in support.

I also suggest that you mention the father’s repeated denials for you, your parents, and the older sibling to have access. You must also make special mention of the fact that your son has no manners — this is conduct must be considered by the court as a serious failure of his father in his upbringing.

Even though the hearings of the court can be attended by you online (after an application has been made and granted by your lawyer), if your lawyer can arrange for the hearing to be when you can come to Jamaica and attend court in person, this may be better, as the father has demonstrated that he is a very difficult person who has no respect for the law, has arrogantly breached yours and his son’s rights, and disregarded his son’s entitlement to have and build relationships with his mother and maternal family. You should talk this over with your lawyer who would consider what is best and advise you.

I see no reason why you would not succeed. The order must be made in clear and specific terms so there is no area of ambiguity, especially because of the type of man you have described. You must act now, as you owe it to your son to meet your obligation to him as his mother.

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.