Absentee dad got married, now wants custody

DEAR MRS MACAULAY, My daughter migrated and my grand-daughter, who is nine, has lived with me and my husband for almost three years. Her father rarely visited, but got married recently and suddenly wants full custody. The child barely knows him. Do we have any legal standing to prevent this?

From your very concise letter, I cannot say whether your daughter had applied for and obtained a legal order of custody, care and control of her child. I deduce that your grandchild lived with her mother, your daughter, for the first six years of life, until she migrated. I also conclude that your daughter left her child in yours and your husband’s care when she migrated, thus making you both the guardians of her child. I assume that this was not done by a deed, but by word of mouth and the physical handing over of the child to you.

You have also not stated the details of your daughter’s request. Was it until she made an application and obtained the necessary visa for her daughter to join her abroad, or was it until the child attains majority? And also, was the “father” pursuant to the Registration (Births and Deaths) Act, registered as the father of the child? Or was he so declared by an order of a court?

It seems that all arrangements were done with the absence and non-intervention of your grandchild’s putative father. You also make no mention of whether he ever provided any maintenance for the child during the years the child has been with you and your husband, or while with your daughter. All these are pertinent questions as to his status, which the court ought to consider on his application for legal custody, whether full or joint, with you and/or the mother of the child.

It seems to me that you have concluded that because your daughter is abroad, she cannot intervene in any application made by the father, or file an application herself for legal custody (which she should have done before her departure and during the years of the non-interest or non-involvement of the putative father). But matters in the Family Court or the Supreme Court can be heard by video conferences/
Zoom when a party is abroad (or in Jamaica but unable to attend personally). There is therefore no reason why your daughter cannot act herself or join with you to intervene in any action by the father.

The question you want answered is whether you and your husband as grandparents can intervene in the court to stop the presumed father from obtaining a legal custody order. By the way, I know of instances like this when such fathers get police officers to accompany them to “collect” their children, and these officers insist that the father has the legal right to the child. But in such circumstances, the officer should advise the father to go and apply for custody in the Family Court, and the application must be served on the person with whom the child is residing. It is for the court to decide and make any order for the custody, care and control of a child who has not had any relationship with his/her presumed father. A police officer is not a judge or jury in any legal matter.

If this happens, do not accede to any pressures of a police officer. Rather, call the station and speak with the officer in charge and report what is happening. Such matters where the father has been absent from the life of his purported child for years must be decided by in a court of law and not a police officer.

Your position raises several issues of facts and law which need to be considered and determined by the court in the circumstances you have sparsely related. The court, pursuant to the Children (Guardianship and Custody) Act, has a discretion, when a child was allowed to be brought up by another person (you and your husband), and where a father abandoned or deserted the child, to make an order that is not averse to the best interests and welfare of the child.

It is my opinion that you and your husband could act both as the guardians of the child and grandparents who were made the guardians by your daughter who had full custody of the child while the father showed hardly any interest in the child. I am also assuming that your grandchild is still with you, and you refused to just hand the child over to this father, because you and your husband are the child’s guardians appointed by the mother who had full custody and care and control.

So you can intervene as the
de facto guardians and apply to be so declared, and for full legal custody of the child, with the consent of your daughter, evidenced in an affidavit sworn to by her. These applications must be made in the Supreme Court.

I must advise you, however, to retain an attorney-at-law to represent yours, your daughter’s, and your grandchild’s interests by preparing and filing the necessary applications and affidavits in support in the Supreme Court or Family Court of your parish, whichever is relevant. If the father has applied, file your defence as quickly as possible. Remember, your daughter can also be a party to the application.

It is such a pity that your daughter, like so many others, made these important decisions which direct the lives of so many children without first seeking and obtaining legal advice. Legal consultation and advice protect the rights and lives of so many, and ultimately save anguish, worry and money.

Your lawyer can also add that an access order be made to enable the father to have specific access periods with the child, so that a relationship can develop between them as the law intends, and also to ensure that the rights of the child are recognised, respected and upheld.

So please act as quickly as you can to obtain the services of a lawyer to act for you all in this very important matter.

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. All responses are published. Mrs Macaulay cannot provide personal responses.