Applying for sole legal custody

Dear Mrs Macaulay,

I currently reside in the United Kingdom (UK) due to work obligations. My only biological child is in Jamaica. I have unsuccessfully applied for her to join me twice. The main reason I have been unsuccessful is that I don’t have sole parental rights for my child.

Her dad and I have been separated since 2013 and he migrated in 2019 to St Kitts. He later started a family of his own there. I am now forced with two options: 1) Return to Jamaica to be there for her; 2) File for sole custody.

What do you think is best?

Before I answer your question about which of the two options you ought to choose to be able to succeed in getting your child to join you in the UK, may I just refer to one point which you did not mention in your letter. Did you ever ask your child’s biological father to consent in writing for her to travel and join and reside with you in the UK? You have not said where your child is and in whose care either. I therefore conclude that your child is either residing with and in the care of a family member of yours, or you are paying a caregiver here in Jamaica.

I am now going to proceed to answer your question by first suggesting that if you had not ever sought to obtain your child’s biological father’s written consent for her to join you, that you ought to do so first. You should enquire from the relevant British authorities whether they would accept this consent for your child to travel to and live with you in the UK. If he refuses, the second option is to apply for an order for sole legal custody and the care and control of your child in the Family Court of the parish in which she presently resides. With this application, also add an application for an order that you are permitted to take your child out of this jurisdiction to reside with you in the UK, with the addendum, “and such further and/or other orders and/or reliefs as the court deems necessary”. This latter clause is to make sure that you are covered in case the presiding judge thinks that you or your child needs any other or more orders or directions which you have not specifically applied to be ordered or made.

It is always better for a parent who had de facto custody to apply for and obtain sole legal custody and care and control, as only with such an order of the court would that parent have full authority and the right to make every and all decisions for the care, upbringing and development of the child, without having to seek to obtain any consent from the other parent.

When you get your order, you must ensure that you have enough certified copies of the court order, plus the original, for your use over the years. So if you are ever required afterwards to prove that you indeed have sole legal custody, you merely have to produce one of the certified copies you had obtained from the court. I have no doubt that such an application would succeed in the circumstances, even if the father seeks to contest your application.

If you cannot make your application in person, call and speak with the clerk of the Family Court which serves the parish where your child resides, and ask how best you can make your application. Explain why you need sole custody, and that the father has refused to consent to you having the child travel and live with you (if he did refuse).

The court’s office will assist you by preparing your application and the affidavit in support of it. Then the document will need to be served on the father in St Kitts. The services of assisting applicants by the officers of the Family Court are all free of charge. Please try and give all the facts related to you taking care of your child, what the father has done for his child, and if nothing, state so, and if he refused to consent to your taking your child to live with you in the UK, why he has done so, if you know the reason.

It is best to obtain the services of a lawyer who practices in that parish, and does child law cases to assist you with the matter. Or you can have the person who is caring for your child assist you by acting as your agent, or have another responsible and sensible family member check with the court’s office for you and get all the information and advice from them. In this way, you would not need to keep travelling here and spending money
.

I hope I have clarified the matters for you to enable you to make your decision to apply to obtain your legal order to secure your position as the parent of your child who has the sole right and legal authority to make all decisions solely for and about every aspect of her life.

I wish you and your child the very best, and happy lives together.

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.