Can a custody agreement exclude a father’s girlfriend?

Dear Mrs Macaulay, Is there any way to ensure in a custody/visitation order that our son is not introduced or spends time with my ex’s girlfriends? I don’t want our child to think that these kinds of relationships are normal, and since I couldn’t offer him a nuclear family, I would want to protect him from a revolving door of my ex’s partners.

You seem to believe that your ex has several girlfriends, as you say you wish to protect your son from a “revolving door” of his partners.   How did you come to this conclusion?  Do you have evidential proof that your ex is living in this way, seemingly changing them as frequently as he does his laundry?  You seem to be saying that his girlfriends are there today and gone tomorrow!  Is this a true fact, or is it that you think it is so?

Well, you would have to have clear and believable evidence that this is so, and would have to convince the court that his home environment and way of life is such that it is against the best interests and general welfare of your child. You would offer  for the court’s consideration evidence that one or more of his girlfriends have been violent and abusive, have neglected or have negligently endangered your son,  or that your ex himself behaves in these ways whenever a girlfriend is present, so that you son becomes upset and fearful to be with his father in those circumstances.  Or that his home is dirty, in such bad repair as to be dangerous, or that chemicals or unsanitary substances are kept unsecurely there as to cause harm to your child.   This would make your ex’s home environment dangerous, unsafe, and unacceptable for your son, and if any or more of the above are proved, the court would not grant any residential access to such a father.  But it may grant access to him to spend elsewhere for some hours of his appointed access day(s).

You see, you cannot, because you feel an aversion to your ex’s girlfriends, refuse his father his right of access.   It is also your son’s right to have access, residential or otherwise, to spend time with his father, and build a relationship with him. You cannot deny your ex access because you do not like or think/believe he has many girlfriends.  If you do so he can apply for custody of his child, and because you have acted without just cause in denying the right of access, you would lose custody and it would be granted to the denied father and you will then be asking for access.

So what should you do?   Under the Children (Guardianship and Custody) Act, both parents have equal rights to have custody and/or access to their child.  The court, in considering an application by either parent, or both, applies the standard of what is in the best interests of the child, and makes custody and access orders which the judge considers to be for the true welfare and in the best interests of the child.

You have not stated if you have legal custody of your son (ie, based on a court order), or if you only have de facto custody, (ie, the child just stayed with you upon the break-up).  If it is the first and there was an access order made, which you do not wish to obey, and you do not, you would be in contempt and if your ex takes the matter of your beach to the court, you could lose your legal custody, which would then be granted to your ex. This, unless you have clear and believable evidence to prove that the girlfriend being with your ex or present in his household is unsuitable or harmful or dangerous to your son’s safety, health, welfare and even his emotional stability, and that’s the reason for your refusal to give him access. Your evidence must be clear and based on facts and not only on your belief, however strong that is, or whatever your own experience became with him. These would only be your personal beliefs and no more, which have no evidential weight.  So if that is all you have and no facts, you will not succeed in getting your ex’s access restricted.

The way you phrased your first question does not make it clear whether a custody and care and control order is in place or whether you are thinking of applying to obtain one.   Therefore, if you do not have a custody order already, then you should apply for it and add the issue of his access to be investigated and decided upon and specifically fixed by the judge of the court.  It is always best to have a court order relating to the custody, care and control of all minor children, and for access to them by the non-custodial parent — as you imply your ex is — in place, rather than leave it as an arrangement between the parents or just continuing a situation of having been the main carer.

All I have referred to above apply to the success or failure of any attempt by you to take away or restrict your ex’s access to his child based on the fact that he may or may not have lots of girlfriends. You have to go further and prove by clear factual evidence that his girlfriends are actually harmful to your son’s physical or mental/emotional safety and his overall welfare and wholesome development, and consequently are detrimental to your son’s best interests.

Remember that you must have facts and cannot merely rely on your belief of a “revolving door” of your ex’s partners, but that they pose an actual harmful and dangerous environmental or actual incidents of physical or emotional/mental abuse of your child.  Bearing all I have said in mind, if you do not have an actual custody and care and control order and one for the father’s access, you should proceed with this. You have a right to state your fears which may not amount to actual factual evidence, but by stating them to the judge, you can ask for the judge to warn your ex about being very careful about to whom and what he exposes his son to whenever he has him in his care during his access periods.

Your son’s legal and human rights must be the primary consideration of you both as his parents, and not just your adult parental rights, without your obligation that your son has a real relationship with his father and his paternal relatives as much as with you and your relatives.

Do proceed to obtain a legal order (or apply to vary an existing one if you have factual evidence as I have stated) and I wish you and your son all the very 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. Mrs Macaulay cannot provide personal responses.