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Dad worried about getting custody in 'mom friendly' court system - All Woman - Jamaica Observer
All Woman

Dad worried about getting custody in 'mom friendly' court system

Dear Mrs Macaulay, I would like to petition the Family Court for custody of my two young daughters, as I believe that their mother is unfit to take care of them. For various reasons that I don't want to list, I'll just say that her living conditions are substandard, where my daughters are exposed to adult material and behaviours as there are numerous people living in the same dwelling space; she is not employed, and my daughters have complained of being physically and harshly disciplined by their stepdad, the mother's boyfriend. I am worried for their future as she leaves them in other people's care for days at a time, and I just want stability for them. I can see where they are regressing academically, and have been demonstrating certain behaviours that are unbecoming of young ladies. However, I'm aware that the courts generally favour mothers when it comes to custody, especially of female children. I believe that I can provide better care for them, to meet their educational, emotional, psychological and other needs, and would like to give them a chance at a better life. Is it true that I won't stand a chance in a mother-friendly court system?

It seems to me that you have been listening to some disgruntled fathers who failed to get their way in their own children's matters from the court which heard the matters. This was the perception held about the Family Court several years ago because of the tough stance the courts took against too many deadbeat dads being brought before them, to make orders for them to meet the most basic obligations relating to their children.

That situation is not as bad as it used to be, though there are still too many fathers who act in relation to their children's welfare from a position of punishing the mothers because of the break up of their relationship. There are also and have always been mothers who also act in relation to ensuring access to the fathers of their children from a position of complete denial in order to punish the fathers for the break up of their relationship. It cannot be denied that there are mothers and fathers who do not put the best interests of the children first, to the detriment of their children.

But you should not allow perceptions and false conclusions to prevent you from acting to ensure that your children enjoy their right to proper upbringing and appropriate development opportunities to ensure for them bright futures. You would be failing to meet your obligations as a father if you do not act on what you say you believe is true about the environment in which you say your daughters are living. You must know that there are provisions in law which support your right to apply for and obtain orders of custody and care and control of your daughters.

The Children (Guardianship and Custody) Act provides that both the mother and the father of children have equal rights to apply to the court about any matter which affects their children. It goes further and provides that the court may, upon an application by a father or mother of a child, make orders which the judge thinks are appropriate regarding the custody and access to the relevant child, bearing in mind the welfare of the child, the conduct of each parent, and the wishes of each parent; and under the Child Care and Protection Act, the opinion of the child should be sought and given due consideration (depending on the age and understanding of the child, of course). As you can see, the law requires a fair balance between the parents. However, in and for all matters relating to the welfare of a child, the judge must act on the priority standard and principle, that each order must be in the best interests of the child.

The courts generally make orders for joint custody and for care and control to the parent with whom the child would live as he or she can provide a safe, stable and caring home for the children. Then the judge will order access for the parent who does not have the children living with him or her.

Father, I therefore see no reason why you are doubtful of being given a fair hearing in the Family Court, and once you go before it with sufficient evidence to satisfy the judge that indeed your daughters' mother is an unfit mother and that the environment of her home is unsafe for them and unsatisfactory for a proper upbringing, and also prove the assertion of their mother leaving them with others for days at a time, and that their mother's boyfriend physically and harshly 'disciplines' them, and that you can provide them with a stable and caring home, the judge would make the orders in your favour. You must understand though that orders must follow the evidence, they cannot be made on your “belief”. You must produce evidence of what you allege is happening, and if proved evidentially, it would clearly be held to be detrimental to your daughters' upbringing.

You should also remember that if the hearing of your application turns out to be unfair or biased in any way, you can appeal to the Court of Appeal to challenge any orders made unfairly or which are based on gender bias.

So dear father, please collect your evidence and go as soon as possible to the Family Court in your parish and obtain assistance from a clerk to prepare your applications for custody and care and control of your daughters, so that they can live with you. You should also ask the court to deal with the issue of their mother's access to them. Children are more rounded and stable emotionally when they have a relationship with both parents — good relationships!

The Maintenance Act provides for both parents to provide support for their children as far as each of them are capable of providing financially. As you say the mother is unemployed, this may be difficult because if she is unemployable then her situation is chronic.

However, if she used to work and is only currently unemployed, then the judge may make an order for her to contribute even a small amount to their maintenance.

Please act as quickly as you can and I applaud your concern and intent to act in the best interests of your daughters. I wish you all success.

This is in line with the aim of International Men's Day, which is celebrated on November 19 annually to celebrate positive male (boys and men) role models and to raise awareness of men's issues as well as celebrating the cultural, political and socio-economic achievements of men. I hope all males — boys and men — had a wonderful day on Friday last.

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.

 

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