Can court force dad to spend time with daughter?
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Dear Mrs Macaulay,

My daughter's father doesn't play an active role in her life and he is very much involved in his other children's life. He just sends money to take care of her. He doesn't call or visit her and claims it's because of his job. He is a police officer who works in the office so his hours are 9-5, sometimes six days a week. I have seen other police officers with their children at the station despite their jobs being so demanding. He also gets vacation hours and he has never once visited her since the start of the year. I currently have a court hearing for maintenance and I told the judge what happened. Her response was that she can't force him to be involved. How is it that there isn't any law in Jamaica to make sure a father is involved in a child's life? But if I had prevented him from seeing his child they would force me to allow access to him?

How do I get him to spend time with the child?

The lack of interest of your child's father in seeing and spending time with his daughter is unnatural. It is also very cruel and is in violation of your daughter's human right to have a relationship with her family, especially her parents. The only restriction is if the parent would be a danger to the child or expose the child to risky or harmful situations. The father of your child is clearly not an unfit father, or one who would expose his child to danger and risks, because you say that he is very much involved in his other children's lives.

There is clearly another reason why he has not visited her even once since the start of this year. Did you have a quarrel around that time and which he is using against his daughter's best interests and her well-rounded and proper development? By the way, I hope his name and particulars are on her birth certificate. If not, then I will tell you what to do about it.

It is very unfortunate if your report about the judge is true. It is clear that you were seeking her assistance with the weight of her office as a judge of the Family Court, to find out why he was behaving as he is and to explain to him what his obligations are as a parent, and what his daughter's rights are both in the UN Convention on the Rights of the Child and pursuant to the Child Care and Protection Act, that providing monies for the child's maintenance is only a part of a parent's responsibilities and obligations for and towards his child. The pronouncements of judges are generally listened to with respect and taken seriously and their questions are treated with respect and produce answers. If the judge you saw did not question and explain to him what is required of him both under the national and the international human rights law, then this would be a serious failure, because the judge is the arbiter of what is or is not in the best interests of a child, and should step in and deal with any parent of a child in a case in his/her court whose best interests are not being upheld by that parent.

It is unquestionable for a father to completely ignore his child and have no personal contact with her. This is acting in a harmful way towards his child and against her best interests. I know and have witnessed judges intervene very strongly when they got the slightest hint that a father was acting in such a cruel, insensitive, disinterested way.

You have asked what you can do to get him to spend time with his child. You are quite right that if he complained that you were refusing him access, that you would have been told in no uncertain terms why you could not deny him his access and that you were acting against your child's best interests and why.

So what do I think you can do? You say that you are in court for maintenance for your child. I do not understand why this is so, because you said the only thing he does is send money to take care of her. Did you take him to court because what he sends is not enough of a contribution for her maintenance?

I think that you should go and apply to the court for orders for joint legal custody, and for care and control to you and for residential or visiting access to the father one weekend a month or alternative weekends, depending on your child's age. State the time/hours when the weekends or visits should start and end in your application and give the factual details why in your affidavit in support of your applications. In this way, you will ensure that with joint custody, you both have the legal right to make all the important decisions for her development until she is 18 years old. For "care and control", you should ask that this be ordered to you. This will give you the legal right to have your child live with you while you take care of her every day and make for her the decisions necessary for her daily life. Your application for his residential or visiting access is to ensure that he spends time with her in his home (residential), or visits her in your home, or calls her and takes her out for fixed hours on a day during a weekend. You can in fact add, if she is at school, that she spends one half or a part of her school holidays with him.

I have suggested the above because your daughter's father would have to attend court in answer to your application for orders of joint custody to you both; care and control to you alone; and fixed access to him as detailed above. During the hearing he would have to state his position regarding each of the orders you have applied for and if he says that he does not want access, then you can intervene and explain his refusal to have any contact with his daughter, which is against her best interests and her legal and human rights and also her emotional balance, and I am sure that the judge would ask him why he does not want access with his child.

If he does not oppose the making of the access to him, but fails to obey the order after it is made for say three months, you can go and speak privately with his superior officer about his failure, as he/she can ensure that you both have counselling with the station's designated counsellor, and if this does not have positive results, then go back to the court about his default in his repeated failure to obey the order for him to have access to his daughter and she to have access to him. The court can order counselling also for him and you and your child, if the judge deems this to be necessary.

If the father's name is not in your child's birth records and birth certificate, then you should also do an application for a declaration of paternity, wherein a DNA test would be ordered if the alleged father does not admit to being the father of the child, and the court will make or not make the declaration based on the DNA report.

These are all I can suggest to assist you. I hope that you act on the joint custody, care and control and access applications. It is good that you are very concerned about his lack of interest as it is very important for your child's wholesome development in every way. All the very best to you both.

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.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.

Margarette MACAULAY

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