Weed smoking dad wants access to baby

Dear Mrs Macaulay,

I am in a situation where the father of my child is complaining about getting residential access. It’s not that I deny him from seeing our 11-month-old son, but he wants our son to stay with him for a week or a month without me being there. I told him that I could take the baby to visit him during the day and then bring him back to my house in the evening, but he’s not agreeing to that. The baby rarely feeds from a bottle no matter how hard I try, so he is still being breastfed. The father smokes around the baby and whenever I take the baby from him, all I smell is weed, and I just don’t think that is healthy for our son. Whenever I say something about it he says that the baby will have to get used to it. The last time I went to his house to spend a weekend, when I was ready to go back home he picked a fight with me, damaged my hand, and hit me repeatedly in the head.  I asked him to just agree to our son visiting him for now until he’s a bit older and no longer breastfeeds, and he said no, and that the baby will still have to just survive somehow. I even suggested that we should start him on some short days like a weekend and see how it goes, and he still said no. He has threatened to kill me if I don’t agree. And now he has decided that he will take it up with the courts.  Is there a possible way for this to resolve in court? 

I am appalled that you are permitting the person you clearly identified as the father of your son, to commit serious offences against you, when you are trying to reason with him about the issue of his parental residential access to his son, without you being present during the periods of such accesses, pursuant to the best interests of the child.

When he threatened to kill you, you should have reported it to the police.  Surely, you know that this is a very serious offence and that threats to kill have been acted upon by some of the persons who have made such threats.  Then he also inflicted personal injuries to you, which constitute serious offences under the Offences Against the Person Act, the penalty for which would be a term of imprisonment.

You are reacting correctly about trying to ensure that your son spends some time with his father, but without any adverse effect being inflicted on the baby. You seem to have been forced to have even suggested that the father agrees to having sole residential access with his son for weekends, and he has refused this.  You made this offer despite the fact that you say after your son has spent some time with his father he returns smelling of marijuana, which you do not think is healthy for the baby.  Surely it is much too early for an 11-month-old baby, or any minor child, to be exposed to the fumes from marijuana smoking.

The father’s response when you object to this demonstrates his irresponsible and selfish attitude towards his child, which can only impede your son’s wholesome development. It proves that this is a father who does not believe that he should make any sacrifice for his son, but that the baby ought to be the one to make sacrifices and suffer the consequences of his father’s selfishness and irresponsibility.

This is also in line with his attitude about the fact of the necessity for you to be available to breastfeed the baby to ensure that he has enough and is properly nourished; that “the baby will just have to survive somehow”, just further highlights that he is not a fit and proper person to have the baby left in his care at all.

All this would lead any court to ensure that such a parent only has supervised access to his child. Any order which places the child for any length of time in his sole custody, would be to endanger the welfare of the child, as the child would certainly be in serious jeopardy without you or some other responsible adult person being present to supervise his interaction with his baby son.  Such suggested access should be ordered to continue until the court is certain that the child can take care of himself and if any difficulty arises, can report it immediately and leave and go to a safe place.

You say he will take the matter to court.  Well, what are you waiting for? You should have gone to the Family Court of your parish as soon as your son’s father started making his selfish and irresponsible and harmful demands for sole residential access, when you knew your baby son was not ready for such arrangements. It is not too late for you to go to the court’s office and have the clerk assist you to make your application for the following at once, because I envision difficulties down the years from such a father.  This is what I suggest you ask the clerk to assist you to apply for: (1) A declaration of paternity (if necessary) naming this man as the father of your son; (2)  Sole legal custody and care and control to you or joint legal custody, following the father attending training/counselling sessions of how to discharge his duties and exercise his rights as a father. Whether sole or joint legal custody, you must have care and control of your child;  (3) Access to the father, non-residential and supervised by you the mother or a named person who is approved by the judge, during the fixed stated times of his access,  and residential access after the child attains the age of ……(this age is decided to be in the best interests of the child by the judge);  and (4) Orders for the general maintenance of the child and his medical, dental, optical and educational expenses, with liberty to apply.

Let me just explain what some of the terms I have used above mean.  Custody is the legal authority to make important decisions about the child’s life and development, like for health treatments, schools, and religious practice.  Care and control mean the daily care  of the child, daily supervision of him, and to make all necessary daily decisions.  General maintenance which both you and the father must provide pursuant to the Maintenance Act, covers all the costs of all the necessities for your son’s survival. It covers the cost of his housing – since you will have care and control, you must work it out proportionally. If you are paying rent or mortgage you must divide the total monthly sum between the number of persons who live with you, including your baby son, so if there are three of you then his share would be one-third.  This would then be his share of the monthly costs for electricity, water, telephone and cable, household cleaning products and any other general household expenses.  Then the cost of his toiletries, clothing and footwear and his medical and educational (when it starts, or child care costs) would be added to his proportional share for the general expenses I have mentioned.  Cost of transportation for the baby appointments, visits, etcetera should also be added.

Liberty to apply means that you or the father can go back to the court if any dispute or blockage arises in relation to any of the orders made, and, as your son grows up his expenses shall increase and more contributions would be required for his proper upbringing, so you must have the court update these and any other orders.

I am strongly advising you to go to the Family Court and have your own applications made.  There are no costs involved for such applications to be made to the Family Court.  Do not leave this to the father to do.  The laws exist to protect you from threats, violence, and being forced to agree to something which you know and believe is not good for your child’s health or development.   These matters are dealt with in the Family and Supreme Courts of Jamaica and other countries every day the courts are in session.

Be strong for your child and when you sit with the clerk of the Family Court, tell her everything your son’s father has been doing to you and to your son – the threats made to you, physical violence inflicted on your person, and your son’s exposure by his father to the fumes of his weed.  All these you are legally and duty bound to disclose for your son’s welfare and in his best interests which is the primary consideration which the court must apply in considering what orders to make for your son’s proper development.

Go to the Family Court one day next week.  Take the certified copy  of your child’s birth certificate with you and the figures written down for the maintenance application which I have mentioned above.

By the way, the majority of maintenance orders made by courts are divided equally between the parents, but if one parent earns much more than the other, the court should order the one with the bigger income to contribute more than the other.

The Family Court was established to assist parents who are having difficulty about having the best care for their children and for the protection of those who are suffering or have suffered domestic abuse from their partners or ex-partners, and more. Use it please for your child’s welfare and his best interests.

Even if the father applies (and he may just be threatening to do so), you must also apply, as you and your son have everything to gain by going to the Family Court and telling them everything.

All the best.

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.