Mom finding excuses to prevent dad’s access

DEAR MRS MACAULAY, My babymother will not allow our child to visit, even though I recently got a court order that gives me weekend and holiday access. Everytime it’s my turn, she says our daughter is sick, or has school events, or makes up some other excuse. I already had a hard time in the court system with even being heard, as I think the system favours women, so I am hesitant to go back to report her breach and spend more months fighting to see my child. I provide regular support for our child, and just want access, which I am being denied. What can I do?

What is happening to you is unacceptable.  You are a father who wishes to discharge all your obligations for your child and to be present in the child’s life, and you have the benefit of an access order from the Family Court.   That the mother of your child has been using all sorts of excuses, spurious and otherwise, to deny you your rights of access with your child, means she is also denying your child the right to have a relationship with you, which is the child’s fundamental human right. It is also a court ordered legal right of the child also to have her time as ordered spent with you, her father.

Your child’s mother is committing  contempt of court on each occasion she denies you and her child your ordered time of access to each other.  You must report her breaches to the court.

You have made it clear that you had a “hard time in the court system with even being heard”, and you concluded that the system favours women over men and you are therefore reluctant to go back to the court to report her breaches.  I am really sorry that you came to this conclusion, which should not be felt or made to be experienced by any male proposed or actual applicant or respondent for any process in the court.  If any staff member treated you badly, you should have asked to see the senior court administrator and reported what happened, so that the person could be reprimanded, and that your experience is courteous and caring as it ought to be.  You did not specify who gave you a hard time.  If it was the judge, then you would have to report any unfair and/or discourteous treatment to the senior judge, and if it is that judge, then to the Chief Justice.  The dignity of everyone must be respected. It is the fundamental human right of every human being.

Let me just touch on the history of the Family Court system, very concisely.   It was established on the 18th December 1975 for Kingston and St Andrew pursuant to the Judicature (Family Court) Act, and that all parishes would later be served by such courts.  This has been achieved. This was so that all legal matters dealing with family life, save for divorce proceedings, could be dealt with in-camera (privately) and with the support of social services to ensure that family problems, especially those dealing with children, are dealt with in a quiet, caring and yet, legal environment, and that the staff would assist parties with drafting their applications and the service of them, if necessary at no charge. It would thereby ease the parties’ applications being heard by a judge, without the need for representation by an attorney-at-law, unless that a party chooses to retain one.

The need for such courts was brought to the attention of the legislature and the executive of that time, by the women’s rights movement because applications by mothers for declarations of paternity, custody and care and control and maintenance for their children, used to be heard in the public court system of the Resident Magistrate’s courts and on the days set for such hearings, the hearings were treated like live comedic theatre with raucous laughter at the women’s explanation of their respective situations. These women, in seeking to have the men they alleged to be fathers of their children accept that fact and their responsibility to provide for the medical costs of the pregnancy, the delivery costs, and for the provision of shelter, food and other maintenance costs, were heard in an open court filled with the respondent fathers and members of the public who would all have a good laugh at the women with the judge struggling to keep order in the court.  It was patently wrong and undignified with the women suffering the brunt of rude laughter and comments.  It was therefore agreed that a special court system should be set up to give such personal family matters the proper environment for the parties and the subject of their applications to be heard in a quiet and private and dignified way.

Remember that though the Family Court system came out of how “single mothers” were rudely treated and laughed at in the open court system, the Family Courts set up were for all family matters — but not divorces which are heard in the Supreme Court.   Men and women have equal rights to apply to these courts  as the Children (Guardianship and Custody)  Act provides in  Section 6  —  “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”. Before this Act, in years gone by, only fathers were entitled to have “legal custody” and all that flowed from this for their lawful children.  Also remember that the Status of Children Act had to be passed for those born out of wedlock to be placed on an equal footing in law.  The Family Court, like all courts in Jamaica, is gender neutral and applies laws which are largely gender neutral.  In relation to all cases dealing with children, all decisions are based on the application of the principle of “the best interests of the child”.

The judge in your matter would have made the order for your access because it was and is in the best interests of your child to spend time with you so that a close familial relationship can develop between you and your child.  This is an absolute necessity for the full and proper development of your child.   You must therefore use the legal provisions which exist to ensure that you get the benefit of the court order and that your child gets her benefit also.  You must go and report the mother’s conduct to the court.  This is the correct thing for you to do for you and your daughter.  If you are not treated properly, I have told you what to do. Fight for your child’s rights and yours, please.  You are clearly a good father who wants to do what you can for your child.  Do not let the mother get away with her wrongful and contemptuous actions.

You shall succeed if you go back and report the situation to the court.  The mother could even lose custody of the child due to her conduct.  You ought to apply for joint custody so that you can be a part of all the important life decisions which must be made for your child’s life and development and welfare.  Make sure that you have all the facts of the dates she has refused you your access and what she said was the reason before you go to the court.  You do not want to be struggling when you are speaking with the clerk.  You should write it all down and refer to your notes.

I hope I have clarified matters for you. Please go and get your rights and those of your child.

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 private, personal responses.